Commonwealth v. David Class.

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-209

COMMONWEALTH

vs.

DAVID CLASS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, David Class, entered a conditional guilty

plea to two counts of trafficking in a controlled substance in

violation of G. L. c. 94C, § 32E (b). 1 Having reserved his

appellate rights, see Mass. R. Crim. P. 12 (b) (6), as appearing

in 482 Mass. 1501 (2019); Commonwealth v. Gomez, 480 Mass. 240,

252-253 (2018), the defendant appeals from the denial of (1) an

omnibus motion to suppress the fruits of electronic surveillance

of the defendant and (2) a motion to suppress the fruits of a

series of searches. We affirm.

1The Commonwealth entered a nolle prosequi on three
additional charges of unlawful possession of a controlled
substance with intent to distribute.
Background. We summarize the facts as found by the motion

judges, 2 "supplementing with additional facts as necessary from

testimony and evidence that the judge[s] implicitly credited."

Commonwealth v. Lariviere, 98 Mass. App. Ct. 440, 441 (2020).

1. The November 20, 2014 wiretap warrant application. On

November 20, 2014, Special Agent John Barron of the United

States Drug Enforcement Administration (DEA) and Detective

Thomas Scanlon of the Springfield police department sought, and

a Superior Court judge authorized, a wiretap for two telephones

used by the defendant. In their joint affidavit, Special Agent

Barron and Detective Scanlon (affiants) indicated that the

defendant, who they believed was involved in trafficking heroin

and cocaine, was using the two target telephones to "communicate

with key members of his organization, customers and source(s) of

supply for narcotics." The affidavit detailed the affiants'

2 In November 2016, the defendant filed his omnibus motion
to suppress. A judge of the Superior Court (first motion judge)
held a nonevidentiary hearing on that motion in March 2017. The
defendant then filed an amended motion to suppress raising
additional issues related to a lost or missing warrant return.
The first motion judge denied both motions without an
evidentiary hearing.
The defendant then filed an interlocutory appeal, and
the Supreme Judicial Court remanded, ordering an evidentiary
hearing be held on the nonwiretap aspects of the motion to
suppress. From May through June 2019, a different judge (second
motion judge) held a series of evidentiary and nonevidentiary
hearings. Following those hearings and the filing of a second
amended motion to suppress, the second motion judge made
findings of fact and denied the motion.

2
investigatory efforts, including the use of a confidential

informant (CI) and information learned from a prior

investigation of another individual, Daniel Burgos.

On November 6, 2014, the CI told law enforcement that the

defendant and another individual, Vito Resto, were partners in

drug trafficking activities. The CI had known the defendant for

years and previously purchased illegal drugs from him. The

affiant believed that Burgos was the main supplier of heroin for

the defendant and Resto and that Eddie Santiago was their main

supplier of cocaine. The next day, November 7, 2014, law

enforcement intercepted a call between Burgos and his girlfriend

during which they discussed that the defendant was going to want

three to four boxes of heroin.

At the direction and control of law enforcement the CI

contacted the defendant on a target telephone, first to arrange

to pay a debt and then to arrange a controlled buy of cocaine

from the defendant. On November 10, 2014, law enforcement

overheard the CI and the defendant discuss the future purchase

of cocaine by the CI from the defendant and about Resto asking

the defendant for help. On November 13, 2014, the CI called the

defendant on one of the target telephones to order cocaine and

arrange the pickup. Before the pickup, law enforcement searched

the CI for contraband and provided the CI with a recording

device and $1,200. Law enforcement observed the CI meet with

3
the defendant in his truck at the agreed upon location and heard

a conversation between the CI and the defendant consistent with

a drug transaction. After the transaction, the CI handed over

to law enforcement the recording device and a baggie containing

a substance which tested positive for cocaine. When law

enforcement searched the CI again, no other contraband or money

was found. 3

Based on all of the information obtained through a variety

of investigative techniques, 4 the Superior Court judge authorized

the wiretap. Investigators then began monitoring the

defendant's calls on the target telephones.

2. Denton Circle package. From the wiretap, law

enforcement learned that a package suspected to contain drugs

would be delivered to 31 Denton Circle in the city of

Springfield. On December 2, 2014, Special Agent Barron and

other law enforcement officers established surveillance of 31

Denton Circle. The target package appears to have been

delivered to the Denton Circle address at approximately 10:19

3 The CI later reported going with the defendant to wire
money to William Santiago in Puerto Rico and that the defendant
called Eddie Santiago to ask the name of the recipient. The
defendant asked the CI to put the wire transfer in the CI's
name.

4 The affiants also relied upon information learned from
other agencies, toll records, vehicular global positioning
system devices, grand jury subpoenas, and search warrants.

4
A.M. At the same time, DEA Agent Scott Smith received

information from law enforcement monitoring the wiretap

suggesting that the package had been delivered, but was missing.

Agent Smith then searched the vicinity for a United Parcel

Service (UPS) driver. Agent Smith found a UPS driver, but not

the driver who had delivered the package at Denton Circle. That

driver contacted his supervisor. The supervisor advised that

the package was recently reported lost or stolen. The

supervisor contacted the UPS driver who delivered the package

and asked that driver to retrieve the package, which the driver

did. The package was returned to the West Springfield UPS

distribution hub. The second motion judge found that "[w]hile

UPS's collection of the package was likely due, in large part,

because of Smith's role as a DEA agent, the target package

retrieval was not requested, directed or ordered by law

enforcement."

At the UPS facility, a certified narcotics detection dog

identified the target package from two separate panels of eight

packages. Special Agent Barron then took the package overnight

to secure a warrant the next day. On December 3, 2014, police

prepared a signed affidavit and warrant application to open the

package. The warrant was issued by the same judge who

authorized the wiretap, and police opened the package in that

judge's lobby. The package contained a kilogram of cocaine.

5
Officer Carey McKenzie completed the warrant return and filed it

with the Superior Court clerk's office. Law enforcement

subsequently obtained renewals of the wiretap warrant on

December 4, December 16, and December 30. None of the renewal

applications referred to the 31 Denton Circle package. The

defendant was not charged with any crimes as a result of the

Denton Circle package.

3. Brookline Avenue package and the defendant's arrest.

On January 14, 2015, law enforcement learned from intercepted

calls of another package suspected to contain drugs for the

defendant to be delivered to 36-38 Brookline Avenue in

Springfield. The defendant arrived in front of 36-38 Brookline

Avenue in a vehicle while police were surveilling the location.

The defendant's codefendant Jose Sierra exited the building with

a manila envelope style package and got into the defendant's

vehicle. Police then approached the vehicle and placed the

defendant and Sierra in custody. Police conducted a patfrisk of

the defendant, found "crack" cocaine, powder cocaine, and

heroin, and found additional cocaine in the vehicle. Police

placed the defendant and Sierra under arrest. The defendant

signed a search warrant waiver consenting to a search of his

Empire Street residence, and police found money and cocaine at

that location. Officer McKenzie obtained a search warrant for

6
the package seized from Sierra, which contained a kilogram of

cocaine.

Discussion. 1. Wiretap application. The defendant argues

that the affidavit submitted in support of the wiretap

application failed to establish probable cause and that normal

investigative procedures would have sufficed. "A wiretap

warrant may only issue '[u]pon a showing . . . that there is

probable cause to believe that a designated offense has been, is

being, or is about to be committed . . .[,]'" Commonwealth v.

Long, 454 Mass. 542, 555 (2009), quoting G. L. c. 272,

§ 99 E (2), and that a nexus exists between the offense and

organized crime. See id. at 556; Commonwealth v. D'Amour, 428

Mass. 725, 735 (1999). In addition, a warrant authorizing a

wiretap must have "a showing by the applicant that normal

investigative procedures have been tried and have failed or

reasonably appear unlikely to succeed if tried." G. L. c. 272,

§ 99 E (3). See Commonwealth v. Fenderson, 410 Mass. 82, 83

(1991). Where, as here, a motion judge relies solely on

documentary evidence, we review both the judge's findings of

fact and conclusions of law de novo. Commonwealth v. Johnson,

481 Mass. 710, 714 (2019), quoting Commonwealth v. Monroe, 472

Mass. 461, 464 (2015).

a. Probable cause. The defendant asserts that the

Commonwealth failed to establish probable cause because it

7
relied, in part, on faulty information from an unreliable CI.

"When a search warrant affidavit is based on information

supplied from an informant, art. 14 [of the Massachusetts

Declaration of Rights] requires the [judge] to apply the

familiar Aguilar-Spinelli standard, which requires that an

affidavit based on information from a CI establish the CI's

basis of knowledge and veracity." Commonwealth v. Ponte, 97

Mass. App. Ct. 78, 81 (2020). See Spinelli v. United States,

393 U.S. 410, 415 (1969); Aguilar v. Texas, 378 U.S. 108, 114

(1964); Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985).

The defendant does not challenge the basis for the CI's

knowledge, thus at issue is only whether the affidavit contained

enough information to establish the CI's veracity.

The veracity prong of the Aguilar-Spinelli standard may be

met by showing "some of the underlying circumstances from which

the affiant concluded that the informant was 'credible' or his

information 'reliable . . . .'" Upton, 394 Mass. at 375.

Although here the CI did not have an established history of

providing information that led to arrests and seizures of

narcotics as is typical to prove veracity, see Commonwealth v.

Luce, 34 Mass. App. Ct. 105, 108 (1993) ("most common indicator

of 'veracity[]' [is] a history of dispensing information to the

government which led to convictions or seizure of narcotics"), a

8
supervised controlled buy can compensate for any deficiencies.

See Commonwealth v. Valdez, 402 Mass. 65, 71 (1988).

In this case, the veracity test was satisfied when the CI

performed a controlled buy under the supervision of the police.

The warrant application described in detail how the CI, under

police supervision, planned and executed a controlled buy with

the defendant. This included the CI, on November 13, 2014,

under direction and control of the police, calling the defendant

and coordinating with the defendant the location and time to

purchase the cocaine. The police equipped the CI with a

recording device prior to the controlled buy, searched the CI

for contraband, and supplied the CI with the necessary money for

the purchase. The police then directly observed the CI meet the

defendant at the specified location in a vehicle to purchase the

cocaine and listened via the recording device to a conversation

between the CI and the defendant that was consistent with a drug

transaction. Finally, the police met with the CI at a

predetermined location immediately following the transaction and

received a bag from the CI that contained a substance later

verified to be cocaine. Under these circumstances, law

enforcement's direction, control, and observation of the entire

process of the CI purchasing the cocaine from the defendant

9
establishes the CI's veracity under this prong. 5 See

Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787-788 (2009)

("a properly monitored controlled purchase of illegal drugs

provides sufficient corroborating evidence to overcome any

shortfalls in meeting the constitutional reliability

requirements imposed on confidential informants"). Thus, the

controlled buy executed by the CI, when considered in light of

the defendant's previous involvement in DEA investigations 6 and

the recorded conversation of Burgos mentioning the defendant's

desire to purchase multiple boxes of heroin, provide sufficient

facts for the issuing judge to find probable cause.

b. Necessity. Likewise, the defendant's argument that the

Commonwealth was unable to show that the wiretap was necessary

due to a failure of normal investigative procedures is

5 Even if the CI inflated the amount of money the CI owed
the defendant and kept the difference for himself, that lie does
not undermine the controlled buy of narcotics.

6 We recognize that the affiant swore that the defendant
faced charges of trafficking 200 or more grams of cocaine and
incorrectly stated that the charges were "dropped due to
evidence tampering issues within the Massachusetts State Crime
Lab." The Commonwealth concedes the dismissal was for lack of
probable cause. However, the defendant's codefendant's case was
dismissed due to evidence tampering at the lab.
In any event, the defendant does not challenge two
other drug charges described in the affidavit: (1) that the
defendant also was arrested in New Jersey "after making several
sales of multi-ounce quantities of cocaine and "crack" cocaine
to a [CI]" and, (2) that the defendant "was arrested in July of
2013 on charges of trafficking 36 [or more] grams of a
controlled substance."

10
unavailing. The necessity requirement for a wiretap warrant "is

meant to assure that wiretapping is not resorted to in

situations where traditional investigative techniques would

suffice to expose the crime. . . . In determining whether the

Commonwealth has met its burden, the affidavit should be read in

a practical and commonsense manner" (quotations and citations

omitted). Fenderson, 410 Mass. at 83-84.

The Commonwealth submitted a thirty-two page affidavit

detailing the measures already taken to investigate the

defendant, including physically surveilling the defendant, using

a confidential source, toll record analysis, and GPS

surveillance. Although these methods did produce results,

"[t]he Commonwealth need not show that traditional investigative

techniques were wholly unsuccessful or that the police had

exhausted all other investigative procedures before filing its

application for a warrant authorizing a wiretap." Fenderson,

410 Mass. at 83, quoting Commonwealth v. Wilson, 405 Mass. 248,

250 (1989). The affidavit made clear that traditional

investigatory methods, such as physical surveillance, had to be

limited because of the defendant's extensive knowledge of law

enforcement techniques. The affidavit established that those

methods alone were thus incapable of "establish[ing] the

necessary elements" of the operation that needed to be

surveilled. Based on our review of the affidavit, we are

11
satisfied that the facts were "'minimally adequate' to support

the findings made by the issuing judge." D'Amour, 428 Mass. at

736, quoting United States v. Smith, 726 F.2d 852, 864 (1st Cir.

1984).

2. Motion for a Franks hearing. The defendant argues that

the first motion judge erred in denying his request for an

evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154

(1978), to challenge the validity of the affidavit that

accompanied the November 20, 2014 wiretap application. We

review the first motion judge's determination for an abuse of

discretion. See Commonwealth v. Almeida, 496 Mass. 716, 723

(2025); Commonwealth v. Perez, 87 Mass. App. Ct. 278, 285

(2015).

"The defendant is entitled to a Franks hearing only if he

makes two 'substantial preliminary showing[s].'" Commonwealth

v. Andre, 484 Mass. 403, 407 (2020), quoting Long, 454 Mass. at

552. The defendant first 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[s] 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 . . . ." Long, supra.

Second, the defendant must show that "the allegedly false

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

12
"that the inclusion of the omitted information would have

negated the [judge's] probable cause finding" (quotation and

citation omitted). Andre, supra at 408. If these two

"requirements are met, and if, when material that is the subject

of the alleged falsity or reckless disregard is set to one side,

there remains sufficient content in the warrant affidavit to

support a finding of probable cause, no hearing is required."

Franks, supra at 171-172.

The defendant challenges numerous statements as false as

well as omissions that he claims entitled him to a Franks

hearing. 7 Before addressing these claims, we note that under the

7 The statements the defendant challenges as false are as
follows: (1) if the CI were to sell product in a particular
geographic area, the CI had to sell Resto's "and [the
defendant's] product"; (2) the defendant was named as a target
in a DEA wiretap investigation in 2010, was arrested "after
being overheard negotiating for kilogram quantities of cocaine"
from Resto, and the charges against the defendant were later
dropped "due to evidence tampering issues"; (3) Resto and the
defendant were "overheard in several conversations with Burgos"
pertaining to the purchase of "multi-box quantities of heroin
from Burgos"; (4) the CI "was given $1,600" and "paid [the
defendant]" for a drug debt; (5) the defendant knew Resto had
700 grams of raw heroin and that this corroborates the fact that
the defendant and Resto "work in collaboration"; and (6) the
defendant was "named as a target in an order for a TIII wire
intercept" signed by a Massachusetts judge.

The omissions that the defendant claims were known to law
enforcement and were material to the judge's determination of
probable cause are as follows: (1) the CI, "despite telling law
enforcement that the drug debt owed to [the defendant] was
$1,600, gave [the defendant] just $900 of the $1,600 provided by
law enforcement"; (2) the defendant "had no involvement in the
problems between [the CI] and Resto regarding heroin

13
terms of his conditional plea the defendant reserved the right

to appeal, in relevant part, the first motion judge's denial of

his November 16, 2016 motion to suppress as well as his June 12,

2017 amended motion to suppress. See Mass. R. Crim. P.

12 (b) (6) ("[T]he defendant may tender a plea of guilty . . .

while reserving the right to appeal any ruling or rulings that

would, if reversed, render the Commonwealth's case not viable on

one or more charges. The written agreement must specify the

ruling or rulings that may be appealed . . . ."). Here, the

scope of reserved arguments on appeal is "limited to those

raised below in the applicable motion[s]." Commonwealth v.

Page, 105 Mass. App. Ct. 532, 536 (2025). See United States v.

Adams, 971 F.3d 22, 30 (1st Cir. 2020) ("Virtually any and all

nonjurisdictional issues not explicitly preserved for appeal in

the conditional plea agreement . . . are deemed waived"); United

States v. Doherty, 17 F.3d 1056, 1058 (7th Cir. 1994) ("[The

defendant]'s 'conditional' plea . . . reserved the right to

appeal only the denial of his motion . . . on the ground the

motion had stated . . . ."). The defendant challenged some but

distribution and refused to involve himself"; (3) the defendant
"was not a partner of Resto and consistently referred to Resto's
drug business as" Resto's; and (4) the defendant and the CI
"discussed going into a drug business together where [the
defendant] supplied the drugs and the [CI] supplied the customer
base."

14
not all of these statements or omissions in the reserved

motions.

In the motions to suppress that are before us on appeal,

the defendant did not challenge the veracity of the statement

that if the CI were to sell in a particular geographic region,

the CI had to sell Resto's and the defendant's product

(statement 1). See note 7, supra. Likewise, the defendant

failed to raise as an issue relevant to the determination of

probable cause the alleged false statement and related omission

pertaining to his claim that the CI took money from the police

when paying the defendant for his drug debt (statement 4 and

omission 1). 8 Id. These arguments were not before the first

motion judge and are therefore waived. See Page, 105 Mass. App.

Ct. at 535-537. See also Commonwealth v. Honsch, 493 Mass. 436,

456 (2024) ("Where a defendant never attempted to introduce

evidence and, therefore, a [motion] judge never precluded such

evidence, the [motion] judge could not have abused [their]

discretion").

The defendant challenges statements in the affidavit that

pertain to charges of trafficking and conspiracy that were

8 We have addressed the issue of the CI's veracity, supra.
We further note that "[a] Franks hearing . . . is not designed
to impeach the informant's veracity." Commonwealth v.
Youngworth, 55 Mass. App. Ct. 30, 38 (2002), quoting
Commonwealth v. Amral, 407 Mass. 511, 519 n.8 (1990).

15
brought against the defendant in 2010 as false (collectively,

statement 2 and statement 6). See note 7, supra. Specifically,

he claims that he was not named as a target of wiretaps in the

criminal investigation, that he was not intercepted negotiating

cocaine quantities with Resto in 2010, and that the criminal

charges were not dismissed due to evidence tampering. The

defendant relies solely on his affidavit to support his claim

that two of these statements -- that he was named as a target in

the 2010 wiretaps and that he was intercepted negotiating

cocaine quantities with Resto -- are false. Here, the first

motion judge determined that the defendant's uncorroborated

affidavit did "not rise to the level of a substantial

preliminary showing of intentional falsity or reckless disregard

for the truth." Commonwealth v. Ramos, 402 Mass. 209, 215

(1988). Without more of a showing from the defendant than his

account of events, it was not an abuse of discretion for the

first motion judge to reach this conclusion. Id. (mere

allegations of false statements by defendant in affidavit not

enough for showing and must be accompanied by offer of proof).

As for the statement concerning the reason for the

dismissal of the defendant's 2010 criminal charges, the

Commonwealth in its brief concedes that the affidavit misstated

the reason the defendant's charges were dismissed, and that they

were dismissed for lack of probable cause rather than for

16
evidence tampering. The Commonwealth also notes that Resto, the

defendant's codefendant in the 2010 criminal matter, had his

conspiracy charge "vacated and dismissed with prejudice . . .

[by] SJC Order" due to evidence tampering. The affiants may

arguably have been negligent or careless in attributing the

basis for the dismissal of the charges against Resto in the 2010

matter to the defendant, but beyond the fact that the

misstatement occurred, the defendant does not provide any

evidence that the statement was made "intentionally or

recklessly" as required for a substantial showing under the

first prong of Franks. See Long, 454 Mass. at 552. 9

Turning to the statement concerning the purchase of

multiple boxes of heroin, the Commonwealth acknowledged in the

motion hearing that the language in the affidavit was not

accurate and that there was no recorded conversation between

Burgos, the defendant, and Resto about purchasing boxes of

heroin (statement 3). See note 7, supra. The defendant also

9 The defendant relies on Commonwealth v. Dion, 31 Mass.
App. Ct. 168, 172 (1991), to support his assertion that the
misstatement of a criminal record is per se reckless
misrepresentation entitling him to a Franks hearing. This
argument is unavailing. While the court in Dion "assume[d],
without deciding," that a substantial showing had been made that
"the allegations concerning the defendant's prior criminal
record constituted a reckless misrepresentation," the court
nevertheless found sufficient facts to support a finding of
probable cause even after "excising the alleged
misrepresentation." Id. at 172-173.

17
claims in his brief that "[t]here is not a single wiretapped

conversation in which [he] is overheard discussing multi-box

quantities of heroin from Burgos," that he "was mentioned in one

wiretap, not multiple," and that "at no point did he appear on

[a wiretap]." However, there was in fact a recorded

conversation between Burgos and his girlfriend that identified

both Resto and the defendant as parties interested in purchasing

boxes of heroin. This conversation was transcribed and portions

of it were included in the wiretap affidavit. The

Commonwealth's broad description of the nature of the wiretap

conversation could arguably be considered negligent or careless,

but the defendant has not shown that this rises to the level of

a "reckless disregard for the truth" that is necessary under the

Franks standard. Commonwealth v. Dunn, 494 Mass. 42, 56 (2024),

quoting Andre, 484 Mass. at 407-408.

The defendant further challenges an inference drawn from a

recorded meeting on November 10, 2014, between the CI and the

defendant wherein the affiants reported that the defendant had

informed the CI that Resto "had control of 700 grams." 10 The

affiants inferred that this "corroborates the fact that [the

defendant] and RESTO are working in collaboration" and the

10The transcript of the conversation states "grand" not
"grams." This could be a scrivener's error. The affiants
inferred he meant unpackaged heroin, presumably because the
conversation referred to bagging narcotics.

18
defendant argues this was false (statement 5). See note 7,

supra. Assuming without deciding that a defendant can challenge

the affiants' inference, we are not persuaded. The defendant

correctly notes that the transcript reflects that he refused to

help Resto with that heroin and the affidavit should have

conveyed that. However, the transcript of the recorded

conversations established that Resto thought he could

collaborate with the defendant in drug dealing, that the

defendant was tired of helping Resto, and that the defendant was

giving Resto advice on how to bag the heroin. Given these

statements, the defendant has not shown that the inclusion of an

inference that the defendant and Resto were collaborating was

made with "reckless disregard for the truth," Ramos, 402 Mass.

at 215, and by the same token the defendant has not met his

burden to show that the affiants improperly omitted a statement

that the defendant and Resto were not partners (omission 3).

See note 7, supra.

Finally, the defendant's arguments concerning the remaining

omissions -- that the defendant had no involvement in the heroin

distribution between the CI and Resto (omission 2), and that the

defendant and the CI previously discussed going into a drug

business together (omission 4) -- were supported primarily by

the affidavit submitted by the defendant. As we have explained,

more is required to establish a material omission under the

19
Franks standard than the defendant's own account of events.

Ramos, 402 Mass. at 215.

Considering our analysis of each incorrect statement and

omission, we discern no abuse of discretion or other error in

the first motion judge's determination that the defendant was

not entitled to an evidentiary hearing to pursue these

challenges. See Franks, 438 U.S. at 155-156; Dunn, 494 Mass. at

56. Even were we to excise the incorrect statements, sufficient

facts remain to support a finding of probable cause based on the

defendant's prior involvement in DEA investigations, the

recorded conversation of Burgos mentioning the defendant's

desire to purchase multiple boxes of heroin, the defendant's

statements about packing narcotics, and the controlled buy.

3. Denton Circle package. The defendant argues that the

second motion judge erred in denying his motion to suppress the

package containing cocaine recovered from the Denton Circle

address. 11 We disagree.

The Commonwealth in its brief asserts that the
11

defendant's arguments related to the package are waived because
evidence of the package did not contribute to the defendant's
arrest. The defendant's conditional plea, however, reserved for
appellate review the first motion judge's denial of the
defendant's amended motion to suppress on this issue. Because
we proceed infra to review and affirm that ruling, we need not
address the Commonwealth's implicit suggestion that the
defendant was not prejudiced by it and therefore cannot
challenge it at all.

20
When reviewing an order on a motion to suppress evidence,

we accept the motion judge's subsidiary findings of fact absent

clear error and review independently the judge's ultimate

findings and conclusions of law. Commonwealth v. Jimenez, 438

Mass. 213, 218 (2002). Additionally, we "leave to the judge the

responsibility of determining the weight and credibility to be

given oral testimony presented at the motion hearing."

Commonwealth v. Yusuf, 488 Mass. 379, 385 (2021), quoting

Commonwealth v. Balicki, 436 Mass. 1, 4 n.4 (2002). See

Commonwealth v. Regan, 104 Mass. App. Ct. 623, 626

(2024) (we "defer to [the motion judge's] assessment of the

credibility of the testimony taken").

The defendant argues that UPS, under the direction of law

enforcement, seized the package from Denton Circle after it had

been delivered. "The Fourth Amendment, and the accompanying

rule of exclusion, apply only to government action. Evidence

discovered and seized by private parties is admissible without

regard to the methods used, unless State officials have

instigated or participated in the search." Commonwealth v.

Leone, 386 Mass. 329, 333 (1982). See District Attorney for the

Plymouth Dist. v. Coffey, 386 Mass. 218, 221 (1982) ("Neither

the Fourth Amendment nor art. 14 [of the Declaration of Rights

of the Massachusetts Constitution] is implicated when the State

is not involved in the private 'search . . . .'"). For evidence

21
to have been seized here as a result of State action, law

enforcement must have induced or directed UPS to provide the

evidence, and UPS must have acted with the intent to discover

evidence on behalf of the police. See Commonwealth v. Richmond,

379 Mass. 557, 561 (1980). See also Commonwealth v. Storella, 6

Mass. App. Ct. 310, 315 (1978) (exclusionary rule does not apply

where private party "did not act as agents of the State in

acquiring or 'seizing' the evidence").

Here, the second motion judge found that the UPS driver

picked up the package from Denton Circle independent of police

direction. Key to this determination was the testimony, which

the judge credited, from the DEA agent that his conversation

with the UPS supervisor, Jeffrey Herd, was not a direction to

seize the package from Denton Circle. Specifically, the agent

testified that the UPS supervisor independently "contacted . . .

the driver that delivered the package and asked him to go see

where the package was, if it was where he left it, and retrieve

it." The UPS supervisor testified that he did not recall the

incident, including the conversation with the DEA agent, or

directing the UPS driver to retrieve the package. Brian Taylor,

the other UPS supervisor who testified, also did not recall

having a conversation with the UPS driver about retrieving the

package. Finally, Luccio Gill, the UPS driver that was ordered

to retrieve the package from Denton Circle, remembers having a

22
conversation with Taylor and retrieving the package from the

Denton Circle address, but testified he was unaware at the time

that the package may contain drugs or that the authorities

inquired about the package when he received the request from

Taylor. Considering the sparse testimony available on the

record from those involved and the lack of evidence to the

contrary, we decline to disturb the judge's credibility

determinations in this case and conclude that it was not an

error of law to find there was no State action. See Coffey, 386

Mass. at 221.

The defendant also argues that law enforcement lacked

probable cause to search the package because the search warrant

application did not contain sufficient detail establishing the

reliability of the narcotics detection dog. Because this issue

was not raised in the motions to suppress, the argument was not

considered by the motion judges and is waived on appeal. Page,

105 Mass. App. Ct. at 535-537.

Orders denying motions to
suppress affirmed.

By the Court (Henry, Sacks &
Singh, JJ. 12),

Clerk

12 The panelists are listed in order of seniority.

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Entered: December 1, 2025.

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