Commonwealth v. Benjamin Gonzalez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-289

COMMONWEALTH

vs.

BENJAMIN GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth brings this interlocutory appeal from a

Superior Court judge's order allowing the defendant's motion to

suppress evidence obtained in the warrantless search and seizure

of a package. The judge ruled that the Federal postal

officials' detention of the package was not supported by

reasonable suspicion.1 We affirm.

Background. We summarize the facts as found by the motion

judge, supplemented with undisputed evidence from the record

1The judge denied the defendant's initial motion to
suppress. The defendant filed a motion for reconsideration
arguing, in part, that the initial detention of the package was
unsupported by reasonable suspicion. The judge issued a final
order allowing the motion for reconsideration and allowing the
motion to suppress. The judge denied the Commonwealth's motion
to reconsider, and this appeal ensued.
that does not contradict the judge's rulings. See Commonwealth

v. Robinson-Van Rader, 492 Mass. 1, 4 (2023).

On or about February 4, 2020, Inspector David Breton of the

United States Postal Service received information from his law

enforcement counterpart in Puerto Rico that there was a

suspicious package addressed to the area within Inspector

Breton's jurisdiction in Massachusetts. Inspector Breton

received a photograph of the package by e-mail. He determined

that the name on the return address "did not match up with the

return address, although individuals with that name appeared to

live in that general area of Puerto Rico." He asked his

counterpart to send the package to him at the post office in

Massachusetts. The package arrived on approximately February 9

or 10, 2020.

Inspector Breton contacted Detective Jason Bonadies of the

Southbridge police department to set up a "controlled delivery"

of the package. Inspector Breton made the delivery to the front

porch of a single-family residence in Southbridge,

Massachusetts, where the package was addressed. The addressee

on the package was listed as "Nick Jolin." Inspector Breton

knocked on the door, "but [when] there was no answer," he

scanned the package as "delivered" and left it on the porch.

Inspector Breton then "joined Detective Bonadiaz [sic] in

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conducting surveillance to see who would pick up the package."

Eventually a woman arrived at the house, picked up the package,

and brought it inside the house. The officers then knocked on

the front door, which "had like blinds on it that were open

giving [them] a clear sight into the kitchen, and right on the

kitchen counter top was the package." They asked the woman if

she knew the addressee on the package, Nick Jolin, and she told

the officers that he "periodically" stayed at the residence.

They asked her to contact Jolin and ask him to come to the

residence. She did so and Jolin arrived within twenty minutes.

Jolin denied knowledge of the contents of the package and

said that "he was receiving the package for a friend who works

with him, and that it was not for him." Jolin then "consented

to the police opening the package." Inside the package, the

officers found illegal narcotics.

Subsequently, Jolin told the officers that "he had been in

contact with a friend who was expecting a package, and had been

in contact with him quite often in regards to this package."

Jolin showed the officers text messages between him and the

defendant, which confirmed that the defendant had inquired about

a package from Puerto Rico. In those text messages, the

defendant had stated "that there was food in the package, which

he was worried would spoil."

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The officers asked Jolin to contact the defendant to let

him know that the package had arrived. He did so, and after a

short period of time the defendant arrived at the residence in a

vehicle. The defendant exited the vehicle, picked up the

package from the front porch, placed it in the trunk of the

vehicle, and "got back into the driver's side to drive away."

Before he could exit the driveway, the officers stopped the

vehicle and arrested the defendant.

Discussion.2 1. Reasonable expectation of privacy. The

Commonwealth contends that the defendant did not have a

reasonable expectation of privacy in the package. "Letters and

other sealed packages are in the general class of effects in

which the public at large has a legitimate expectation of

privacy; warrantless searches of such effects are presumptively

unreasonable." United States v. Jacobsen, 466 U.S. 109, 114

(1984). "To invoke the protections of either the Fourth

Amendment or art. 14, [the defendant] must prove that he had a

reasonable expectation of privacy" in the package addressed and

sent to Jolin. Commonwealth v. Delgado-Rivera, 487 Mass. 551,

559 (2021), cert. denied, 142 S. Ct. 908 (2022).

2 "In reviewing a decision on a motion to suppress, we
accept the judge's subsidiary findings absent clear error but
conduct an independent review of [the] ultimate findings and
conclusions of law" (quotations and citation omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

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"To successfully challenge a search on Fourth Amendment
grounds, the defendant must show that he had a subjective
expectation of privacy in the place searched that is
accepted by society as objectively reasonable. . . . When
evaluating whether a person has a reasonable expectation of
privacy, courts examine a variety of factors, such as
ownership . . ., possession, access or control, ability to
control."

United States v. FNU LNU, 544 F.3d 361, 365 (1st Cir. 2008),

cert. denied, 555 U.S. 1198 (2009). See Commonwealth v.

Montanez, 410 Mass. 290, 301 (1991).3

Here, the judge applied the factors delineated in United

States v. Aguirre, 839 F.2d 854, 856-857 (1st Cir. 1988), and

determined that under the totality of circumstances, the facts

demonstrated that the defendant had standing to challenge the

search of the package. She found that "Jolin was just the

bailee of the package and [the defendant] was the intended

recipient." See United States v. Bates, 100 F. Supp. 3d 77, 83-

84 (D. Mass. 2015) (defendant can have reasonable expectation of

3 The Commonwealth cites to United States v. Stokes, 829
F.3d 47, 52 (1st Cir. 2016), and other Federal case law to
support the proposition that the "weight of persuasive authority
declines to confer the protections of the Fourth Amendment on
the defendant" because the package was not addressed to him.
While it is true that "many of the federal courts of appeals
have been reluctant to find that a defendant holds a reasonable
expectation of privacy in mail where he is listed as neither the
sender nor the recipient, at least absent some showing by the
defendant of a connection" to the mail, Stokes, supra, here the
text messages that the defendant sent to Jolin establish his
connection to and privacy interest in the package, as discussed
infra.

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privacy in package for which third party is bailee).

Furthermore, we agree with the judge's determination that under

relevant precedent, the text messages that the defendant sent to

Jolin establish the defendant's reasonable expectation of

privacy in the package. Although the package was addressed to

Jolin, the text messages confirm that the defendant owned the

package, intended to take control of the package after delivery,

and had, by directing delivery of the package to Jolin and

remaining in contact about the package's impending arrival,

"taken normal precautions to protect his privacy," within the

meaning of our case law. Commonwealth v. Pina, 406 Mass. 540,

545-546, cert. denied, 498 U.S. 832 (1990). See Rakas v.

Illinois, 439 U.S. 128, 152 (1978). The text messages

demonstrate more than the defendant's subjective belief that he

had an expectation of privacy. In the present context, where

the messages show that the defendant and Jolin both believed

that the package belonged to the defendant, they also establish

the reasonableness of the defendant's expectation of privacy in

the package, even though it was not addressed or directly

delivered to him. See FNU LNU, 544 F.3d at 365.

The Commonwealth does not dispute the existence of such

evidence. Rather, the Commonwealth's claim hinges on the

argument that notwithstanding such evidence, the defendant did

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not have a reasonable expectation of privacy in the package

because, at the time of the search, law enforcement officials

had no reason to suspect that the defendant was involved with

the matter under investigation. Relevant authority does not

support the Commonwealth's proposition that a showing of a

reasonable expectation of privacy is contingent on law

enforcement authorities' awareness of a defendant's privacy

interest at the time of the search or seizure. "[T]he question

is not what the police knew but whether the defendant had a

reasonable expectation of privacy in the seized object." United

States v. Paradis, 351 F.3d 21, 32 (1st Cir. 2003). A defendant

has the burden of establishing a protectible interest "and that

interest does not depend on the state of mind of the police at

the time of the seizure." Id. In this case, the defendant sent

Jolin the text messages indicating his ownership interest in the

package on or about January 31, 2020, and February 1, 2020,

whereas the seizure occurred on or about February 9, or February

10, 2020. Thus, the Commonwealth's argument is unavailing.

While a different judge may have reached a different conclusion,

under the particular facts of this case, we cannot say that the

judge erred in concluding that the defendant had an established

and reasonable expectation of privacy in the package at the time

of the search.

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2. Reasonable suspicion. The Commonwealth contends that

the officers had reasonable suspicion to detain the package due

to the presence of four suspicious factors: (1) the package was

mailed from individual to individual; (2) the package had

handwritten labels; (3) one of the names on the package did not

match up with postal records; and (4) the weight of the package

was between four and ten to twelve pounds.

"Under Federal law, it is well settled that a temporary

detention of personal property for investigative purposes is

permissible when authorities have a reasonable suspicion of

criminal activity." Commonwealth v. Pinto, 45 Mass. App. Ct.

790, 792 (1998). See United States v. Place, 462 U.S. 696, 702-

703, 709 (1983). See also Pinto, supra (Federal law applies

when United States postal inspector removes package from stream

of mail during federal investigation). Reasonable suspicion

exists where law enforcement "has a particularized and objective

basis for suspecting legal wrongdoing" (quotation and citation

omitted). United States v. Arvizu, 534 U.S. 266, 273 (2002).

See Commonwealth v. Matta, 483 Mass. 357, 365 (2019) (reasonable

suspicion "must be grounded in 'specific, articulable facts and

reasonable inferences [drawn] therefrom' rather than on a

'hunch'" [citation omitted]). The government bears the burden

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of proof to show that police action was supported by reasonable

suspicion. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

We agree with the judge that the Commonwealth did not meet

its burden of proving that the officers had reasonable suspicion

to detain the package. Here, the Inspector did testify as to

his training and experience. He also stated that there were

some suspicious factors present suggesting that the package was

linked to criminal activity, as discussed supra. This evidence,

which the judge appears to have credited, established the

officers' suspicion. However, without the Inspector's

explanation of how his expert knowledge informed his assessment

and why those specific factors were indicative of criminal

activity, it did not establish that the suspicion was

reasonable. "[W]hen an officer relies on his or her training

and experience to draw an inference or conclusion about an

observation made, the officer must explain the specific training

and experience that he or she relied on and how that correlates

to the observations made" (emphasis added). Matta, 483 Mass. at

366 n.8. See United States v. Johnson, 171 F.3d 601, 604-606

(8th Cir. 1999) (no particularized and objective basis for

suspecting detained package contained narcotics where postal

agent failed to articulate how his experience informed his

appraisal of package given narcotics profile); United States v.

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Cortez, 449 U.S. 411, 418 (1981) ("[this] demand for specificity

in the information upon which police action is predicated is the

central teaching of this Court's Fourth Amendment jurisprudence"

[citation omitted]). "Taken individually, each of the foregoing

facts is consistent with innocent conduct. Indeed, taken

collectively, the coexistence of these characteristics might

well be seen as innocent by the average citizen. [The

officer's] training and experience, however, [gives] a

reasonable basis for [the] determination that the package was

suspicious," and therefore the Inspector's assessment must be

explained. United States v. Smith, 383 F.3d 700, 704 (8th Cir.

2004), cert. denied, 547 U.S. 1022 (2006).

To be clear, reasonable suspicion is not a demanding

standard. We do not suggest that the factors on which the

officers based their decision to detain the package would not

have been sufficient to establish reasonable suspicion if their

significance were adequately explained in light of the officers'

training and experience. In the circumstances of the present

case, however, without an explanation as to why purported

suspicious factors mattered, we cannot say that the judge erred

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in determining that the seizure of the package was not supported

by reasonable suspicion of criminal activity.

Order allowing motion to
suppress affirmed.

By the Court (Meade, Neyman &
Hand, JJ.4),

Clerk

Entered: September 10, 2024.

4 The panelists are listed in order of seniority.

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