COMMONWEALTH v. HECTOR RODRIGUEZ (And a Consolidated Case).

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

22-P-973

COMMONWEALTH

vs.

HECTOR RODRIGUEZ (and a consolidated case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After their motions to suppress evidence were denied by a

judge of the Superior Court, the defendants Hector Rodriguez

(Rodriguez) and Luis Acevedo (Acevedo) both entered conditional

guilty pleas, preserving their right to appeal the denial of

their motions to suppress pursuant to Mass. R. Crim. P.

12 (b) (6), as appearing in 482 Mass. 1501 (2019). The

defendants raise the same issues and we consolidated their

appeals for appellate review.

Background. On December 4, 2018, Officer Robert J. Patruno

of the Springfield police department applied for and received a

warrant to search "1251 Bay St., Springfield, Ma" (the

property). Because the sole issues on appeal concern the

1 Commonwealth vs. Luis Acevedo.
sufficiency of the affidavit in support of the search warrant,

we recite in detail the facts it sets forth while noting

information it omits. See Commonwealth v. Tapia, 463 Mass. 721,

722 (2012).

Several years prior to this application for a search

warrant, the property and Acevedo were the subject of an

investigation conducted by the Drug Enforcement Administration

into a large scale heroin and cocaine operation. At the time,

law enforcement agents believed the property was being used as a

safe house for Acevedo and the drug operation. The

investigation resulted in the arrest of the primary target (not

Acevedo) and the seizure of $2 million, at which time that

investigation came to an end.

As described in Officer Patruno's application affidavit, in

September of 2017 Detective Sinely Vegerano, acting in an

undercover capacity, contacted an individual that went by the

name "Eto" to purchase 100 bags of heroin, known as "a pack." 2

Eto and Detective Vegerano drove together to several locations

before stopping at a house in Holyoke. Eto entered and exited

the house in Holyoke quickly, during which time Acevedo appeared

at the house. Acevedo appeared upset at Eto for bringing the

buyer (undercover Detective Vegerano) to the house in Holyoke.

2 Eto was later identified as Victor Acevedo.

2
Detective Vegerano made no mention of Acevedo's appearance at

the house in Holyoke in his 2017 report (detailing that event).

At the time he applied for the search warrant, Officer

Patruno had been a police officer for twenty three years, eleven

of which were in the narcotics unit, and he had attended

numerous specialized trainings and courses related to

surveillance techniques and the identification, detection, and

distribution of controlled substances. Beginning in October of

2018, 3 Officer Patruno and members of his department began

investigating the defendants and the property again, this time

under the belief it was being used as a "stash house." 4 Acevedo

and Rodriguez had a criminal history that dated back at least to

2004 when they were arrested for narcotics offenses. In that

case, the Commonwealth entered a nolle prosequi with respect to

Acevedo's charges and Rodriguez was sentenced to a state prison

sentence of five to six years. Officer Patruno learned from

another member of law enforcement that Rodriguez pleaded guilty

in order to protect Acevedo, who was a target of the 2004

investigation. The affidavit fails to mention that in April of

3 Officer Patruno stated that the investigation was "[o]ver the
last two months."
4 Officer Patruno defined a "stash house" as "a street term for a

place where illegal narcotics and profits from the sale of
illegal narcotics are kept."

3
2018 the case against Rodriguez was dismissed with prejudice and

his sentence was vacated. 5

The listed property owner had died in 2016, and the home

was shuttered and appeared unoccupied. Rodriguez was seen

several times parking a car near the property, sometimes

overnight, and was seen entering and exiting the property.

Acevedo also was seen arriving at the property and parking a car

in the driveway. Officers observed both Acevedo and Rodriguez

perform counter surveillance driving maneuvers on separate

occasions after leaving the property, including making an abrupt

U-turn, pulling into a vacant parking lot and observing passing

traffic, and taking circular routes. While surveilling the

property, officers observed no one else going to or leaving the

property and saw "little to no activity outside of Rodriguez and

Acevedo."

Officers also conducted two "trash pulls" 6 of trash cans

left directly outside the property in November and December of

2018. The night before the November "trash pull," and

throughout the course of their investigation, Officer Patruno

5 Rodriguez's conviction was vacated and his case dismissed with
prejudice as part of the resolution of the Sonia Farak
misconduct proceedings. See Committee for Pub. Counsel Servs.
v. Attorney Gen., 480 Mass. 700 (2018).
6 A "trash pull" is where police collect and inspect the contents

of a trash can left on the curb to be collected, in this case by
the Springfield Department of Public Works. The
constitutionality of these "trash pulls" is not at issue.

4
observed trash bins 7 next to the garage of the property. The

next morning, he pulled trash from those same bins that were

then located on the public road at the end of the driveway of

the property. After the trash was brought to a location where

he could inspect it, Officer Patruno discovered two boxes that

he believed were indicative of a large heroin operation being

conducted at the property. Based on Officer Patruno's training

and experience, these boxes "normally contain 50,000 wax packets

for heroin packaging" and were identifiable by a marking on the

outside of the box: "the 'Playboy'[] logo in blue ink." One of

the two boxes had a sample wax paper "Playboy" packet taped to

the outside of the box, commonly used to package drugs. Inside

one of the boxes was a sandwich bag box containing "blowouts," a

type of refuse Officer Patruno described as being consistent

with refuse generated by the process of packaging drugs for

distribution.

During the morning of the December "trash pull," Officer

Patruno observed Rodriguez bring the trash bins to the public

road at the end of the driveway of the property. Once Rodriguez

left the area, Officer Patruno again pulled the trash and

brought it to a location where he could inspect it. Officer

Patruno recovered six plastic seal wraps, which he described as

7 Officer Patruno sometimes refers to a single bin and sometimes
refers to multiple bins. Nothing turns on this inconsistency.

5
consistent with the packaging of a kilogram of illegal drugs.

He also discovered food containers, a milk carton, a cereal box,

and the remains of cigar tobacco removed from a cigar wrap. The

food containers "were fresh refuse."

A state trooper and his canine Cairo, trained in the

detection of narcotics, assisted with the investigation of the

evidence from the December "trash pull." Cairo was NESPAC 8

certified in the detection of heroin, methamphetamine, and

cocaine. Cairo was instructed to inspect four boxes, each of

which were put in a different location inside a garage and only

one of which contained the objects obtained from the "trash

pull." After inspecting each box, Cairo "alerted" only to the

box containing the objects obtained from the "trash pull."

The defendants each filed a motion to suppress the evidence

obtained as a result of the search conducted at the property,

arguing that the search warrant failed to establish probable

cause to establish that evidence of a crime would be found

inside the property. Both motions also contained a request for

a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),

regarding certain information they claimed was intentionally

withheld from the affidavit. After hearing arguments, these

motions were both denied.

8 As discussed below, this acronym is not further defined by the
affidavit.

6
Discussion. The defendants make the same two arguments:

first, that the affidavit lacked probable cause that evidence of

a drug operation would be found at the property; and, second,

that they were entitled to a Franks hearing regarding Officer

Patruno's (i) failure to include in his affidavit that

Rodriguez's 2004 criminal case had been dismissed with prejudice

and his sentence vacated; and (ii) assertion that Acevedo had

appeared on the scene of the 2017 controlled buy. We address

each argument in turn.

1. Probable Cause. The defendants first argue that the

search of the property was a violation of the Fourth and

Fourteenth Amendments to the United States Constitution and art.

14 of the Massachusetts Declaration of Rights because the search

warrant was not supported by probable cause. "When reviewing

the sufficiency of a warrant application, our 'inquiry begins

and ends with the "four corners of the affidavit" that supported

it.'" Commonwealth v. Hayes, 102 Mass. App. Ct. 455, 461

(2023), quoting Commonwealth v. Escalera, 462 Mass. 636, 638

(2012). "[T]he affidavit should be read as a whole, not parsed,

severed, and subjected to hypercritical analysis." Commonwealth

v. Blake, 413 Mass. 823, 827 (1992). When determining whether

the affidavit supported a finding of probable cause, "[w]e give

considerable deference to the magistrate's determination."

Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 486 (2020),

7
citing Commonwealth v. Harmon, 63 Mass. App. Ct. 456, 460

(2005).

In order for a search warrant to be supported by probable

cause, the facts in the accompanying affidavit must provide a

"substantial basis to conclude that the items sought are related

to the criminal activity under investigation, and that they

reasonably may be expected to be located in the place to be

searched at the time the search warrant issues" (quotation

omitted). Commonwealth v. Snow, 486 Mass. 582, 586 (2021).

"The nexus between the items to be seized and the place to be

searched need not be based on direct observation and may be

grounded in the type of crime, the nature of the . . . items

[sought], the extent of the suspect's opportunity for

concealment, and normal inferences as to where a criminal would

be likely to [keep the items sought]" (quotations and citations

omitted). Commonwealth v. Fernandes, 485 Mass. 172, 183-184

(2020), cert. denied, 141 S. Ct. 1111 (2021). An affidavit need

only provide a "quantum of evidence from which the magistrate

can conclude, applying common experience and reasonable

inferences, that items relevant to apprehension or conviction

are reasonably likely to be found at the location."

Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509 (2019) ("The

probable cause standard does not require a showing that evidence

more likely than not will be found"). The information in the

8
affidavit must be particularized, such that it would permit a

reasonable inference that the defendants likely kept the

evidence sought inside the property to be searched. Escalera,

462 Mass. at 643.

Here, putting aside the defendants' criminal histories for

later discussion, the affidavit contained information regarding

two "trash pulls" at the property which resulted in the seizure

of two empty boxes that ordinarily contain 50,000 wax packets

for packaging heroin; 9 a positive drug identification by a dog

trained in the detection of narcotics of items recovered from

one of the two "trash pulls"; observation of Rodriguez carrying

out the trash bin that contained evidence of drug distribution;

observations of both defendants frequenting the property whose

owner had died two years earlier; counter-surveillance

techniques used by both defendants when leaving the property;

and a lack of observed activity at the property other than the

defendants' comings and goings. Reviewing these facts and

reasonable inferences drawn from those facts, see Commonwealth

v. Augustine, 472 Mass. 448, 455-456 (2015), we conclude that

the affidavit established probable cause. The affidavit

contained enough particularized information to permit a

9 Police "officers need not rule out a suspect's innocent
explanation for suspicious facts" (quotation omitted).
Commonwealth v. Guastucci, 486 Mass. 22, 26 (2020).

9
reasonable inference that physical evidence of a drug operation

existed inside the property. See Andre-Fields, 98 Mass. App.

Ct. at 484 ("Once it was established that [the defendant] was

operating a drug business that included [the property], little,

if anything more, needed to be added in the affidavit to justify

searching for records, ledgers, or proceeds" [quotation

omitted]).

The defendants contend that the positive alert by the drug

sniffing dog Cairo should not have weighed in favor of a finding

of probable cause because the affidavit does not effectively

establish his training and reliability. We disagree. Although

the affidavit does not define the NESPAC certification Cairo

received, it clearly states that Cairo was trained in the

detection of heroin, methamphetamine, and cocaine and that the

training consisted of eight forty-hour weeks. See Commonwealth

v. Judge, 100 Mass. App. Ct. 817, 825-826 (2022) (reliability of

dog trained in detection of narcotics can be established in the

absence of formal certification if dog has recently and

successfully completed training). Additionally, the affidavit

described the items that were presented to Cairo and how he

alerted only to the items from the property. This level of

detail regarding Cairo's training and the method that the canine

officer employed to have Cairo examine the items is sufficiently

10
detailed and its consideration in a determination of probable

cause was appropriate.

The defendants also argue that there is not probable cause

where, as here, there was not a controlled buy at the property

or other direct observations of drug activity or transactions at

the property. They argue that Officer Patruno's description

that the property was vacant (other than the occasional presence

of Acevedo and Rodriguez) is inconsistent with a potential

"stash house." In essence, they argue that the lack of police

observation of criminal activity is determinative. We disagree:

a "trash pull" coupled with other evidence not rising to the

level of direct observation of criminal activity is sufficient

to establish probable cause. See Commonwealth v. Matias, 440

Mass. 787, 792-793 (2004) (trash pull in connection with "a tip

from an informant several months before [the] search" sufficient

to support probable cause); Commonwealth v. Lavin, 101 Mass.

App. Ct. 278, 297-298 (2022), S.C., Commonwealth v. Desiderio,

491 Mass. 809 (2023) (admission by defendant that "he suffered

from a prescription pill addiction," "drug paraphernalia"

recovered from "trash pull," and prior overdose by defendant

established probable cause).

Here, in the first "trash pull" officers found two boxes

identifiable by "the 'Playboy'[] logo in blue ink" that normally

contain 50,000 wax packets for heroin packaging; one of those

11
boxes had a sample wax paper "Playboy" packet affixed, and the

other contained refuse generated by the process of packaging

drugs for distribution. In the second "trash pull" six plastic

seal wraps consistent with the packaging of a kilogram of

illegal drugs was found. And, as noted, a dog trained in the

detection of narcotics alerted to the items. In addition,

Rodriguez was observed bringing the trash bin to the curb. The

"fresh refuse" contained in the December "trash pull" further

established that the contents of the trash, including the

plastic seal wraps, had been recently discarded. Given the

evidence produced from the "trash pulls" in connection with the

two defendants' routine visits to the property whose listed

owner was deceased, and the defendants' counter surveillance

driving maneuvers when leaving the property, there was probable

cause to believe that evidence of a crime would be discovered at

the property even without a controlled buy or other direct

observations of drug activity or transactions at the property.

2. Franks hearing. The defendants next argue that they

were entitled to a Franks hearing regarding Officer Patruno's

failure to disclose in his affidavit that Rodriguez's 2004 case

had been dismissed with prejudice with the sentence vacated and

his assertion that Acevedo appeared at the scene of the 2017

controlled buy. "The defendant[s are] entitled to a Franks

hearing only if [they] make[] two 'substantial preliminary

12
showing[s].'" Commonwealth v. Andre, 484 Mass. 403, 407 (2020),

quoting Commonwealth v. Long, 454 Mass. 542, 552 (2009). First,

a defendant must make "a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the

warrant affidavit." Franks, 438 U.S. at 155-156.

"Intentionally or recklessly omitted material may also form the

basis for mounting a challenge under" Franks. Long, 454 Mass.

at 552. Second, the defendant must show that "the allegedly

false statement is necessary to the finding of probable cause,"

or "that the inclusion of the omitted information would have

negated the magistrate's probable cause finding" (quotation

omitted). Andre, 484 Mass. at 408. We review to determine

whether the judge abused her discretion in denying the

defendants an opportunity to be heard at a Franks hearing.

Commonwealth v. Perez, 87 Mass. App. Ct. 278, 285 (2015).

We need not decide whether the defendants have shown that

Officer Patruno intentionally or recklessly omitted material

information from or made materially false allegations in the

affidavit because the defendants have failed to show that the

inclusion of information regarding the dismissal of Rodriguez’s

conviction, or excluding the assertion that Acevedo appeared at

the scene of the 2017 controlled buy, would have negated the

magistrate's probable cause finding. As discussed previously,

13
the affidavit, without any mention of the defendants' criminal

history, would have contained enough information to support a

finding of probable cause. We agree with the Superior Court

judge that the information relating to the 2004 conviction was

not particularly helpful in the probable cause calculus as it

was from fourteen years ago and was outdated. Rather, it served

as background information connecting the two defendants

together, an inference that could also be reasonably made given

the observations that only the defendants repeatedly visited the

same isolated property. Also serving as little more than

background information was the assertion that more than one year

earlier Acevedo "arrived" during but did not participate in a

controlled buy taking place at a different location. Without

the 2004 criminal history information or the allegations

pertaining to the 2017 controlled buy, the search warrant still

was based on probable cause. Accordingly, the defendants have

failed to show that including this information would have

negated the magistrate's probable cause finding.

Conclusion. Because the affidavit supported a finding of

probable cause and the defendants have failed to show that

information included in or omitted from Officer Patruno's

14
affidavit would have negated the magistrate's probable cause

finding, we affirm the orders denying the motions to suppress.

Orders denying motions to
suppress affirmed.

By the Court (Vuono, Meade &
Walsh, JJ. 10),

Clerk

Entered: December 6, 2023.

10 The panelists are listed in order of seniority.

15