Commonwealth v. Cintron

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23-P-250 Appeals Court

COMMONWEALTH vs. CARLOS S. CINTRON.

No. 23-P-250.

Barnstable. November 9, 2023. - March 11, 2024.

Present: Ditkoff, Englander, & Walsh, JJ.

Controlled Substances. Idle and Disorderly Person. Search and
Seizure, Warrant, Home of third person. Practice,
Criminal, Motion to suppress, Warrant. Evidence, Prior
misconduct, State of police knowledge. Witness, Police
officer.

Complaint received and sworn to in the Barnstable Division
of the District Court Department on November 25, 2020.

A pretrial motion to suppress evidence was heard by Therese
M. Wright, J., and the case was tried before her.

Catherine B. Sullivan Ledwidge for the defendant.
Rose-Ellen El Khoury, Assistant District Attorney, for the
Commonwealth.

DITKOFF, J. The defendant, Carlos S. Cintron, appeals from

a conviction after a jury trial in the District Court of
2

possession of fentanyl, G. L. c. 94C, § 34.1 We conclude that a

search warrant authorizing a search of "any person present"

allows a search of any person present in the property to be

searched during the execution of the search warrant, including

persons present during the execution but who exit the property

before the police announce the search to the residents, at least

where those persons remain in the vicinity of the property and

in the view of the police at all times prior to the search.

Further concluding that the officers' testimony that one of the

officers knew the defendant did not create a substantial risk of

a miscarriage of justice, we affirm.

1. Background. Police received a tip that Christopher

Gasper (target) was selling heroin and fentanyl from his single

family house in West Yarmouth. They conducted surveillance and

observed visitors meeting with the target outside of the house

or entering the house for several minutes while leaving their

1 The jury convicted the defendant of simple possession as a
lesser included offense of possession with the intent to
distribute, G. L. c. 94C, § 32 (a). The jury also convicted the
defendant of disorderly conduct, G. L. c. 272, § 53. That
conviction was placed on file. "Although the record does not
reveal whether the defendant consented to the filing of the
conviction, as required, he did not raise the conviction before
. . . this court. Accordingly, it is not the subject of this
appeal and we will not address it" (citation omitted).
Commonwealth v. Brown, 456 Mass. 708, 709 n.1 (2010), S.C., 466
Mass. 1007 (2013). The trial judge allowed the defendant's
motion for a required finding of not guilty of resisting arrest,
G. L. c. 268, § 32B.
3

cars running. After police conducted three successful

controlled purchases at the house, a search warrant issued from

the Barnstable District Court authorizing police to search the

house, the target, and "any person present who may be found to

have [fentanyl, cocaine, and related items] in his or her

possession or under his or her control or to whom such property

may have been delivered."

The process of executing the search warrant began at

approximately 5:30 P.M. on November 24, 2020, with police

surveillance. The lead case detective assigned a "surveillance

officer, who was posted on the residence, who just sat on the

residence to make observations" and who "can tell [the other

officers] what he sees and what people might be coming in and

out of the house and what activity might be taking place,

whether the target is there or not." Around 6:15 P.M., the

surveillance officer observed "a black Cadillac sedan pull in to

the driveway." The defendant, who was driving, and a passenger

(neither of whom were the target)2 got out of the car and went

into the house. Five to ten minutes later, they returned

outside, and the defendant remained standing in the driveway.

2 There is no indication in the record that the surveillance
officer was familiar with the defendant or the passenger or that
the detectives expected or intended to encounter the defendant
or the passenger.
4

At this point, the target left the house (presumably what

the police were waiting for), got into a truck, and drove away.

Officers stopped him shortly thereafter and arrested him.3

Five or six unmarked cruisers then pulled up to the house

with their blue lights on. Multiple officers yelled, "Police.

Search warrant," and the defendant tried to flee. The

surveillance officer tackled the defendant while he was running

into the street.

After the defendant was handcuffed, the surveillance

officer asked the defendant "if he had anything on him that was

going to hurt . . . or poke" the officer. The defendant

responded that he had a knife on him and a bag of marijuana.

The officer searched the defendant and removed the knife and a

bag containing 4.78 grams of a "brown powdery substance" from

his pockets. The substance was later determined to be fentanyl.4

The defendant and the other person who had been in the

sedan testified at trial, but not at the suppression hearing.

3 The target ultimately pleaded guilty in the Superior Court
to trafficking in eighteen grams or more of fentanyl, G. L.
c. 94C, § 32E (c) (1), and to possession of a class B substance
with the intent to distribute, as a subsequent offender, G. L.
c. 94C, § 32A (b), and agreed to forfeit $11,340. The jury, of
course, did not hear this.

4 Police also recovered $627 in cash. A State trooper with
fifteen years of experience in a drug taskforce unit testified
that "possession of around 5 grams of Fentanyl and around $600
in cash" would be indicia of distribution.
5

They both testified that the other person, not the defendant,

had driven the sedan to the house. Neither of them entered the

house but rather were there to retrieve old license plates.5 The

defendant ran when the police arrived because he did not

recognize them as police. The defendant testified that he had a

knife, a bag of marijuana, and some money he had earned as a

security guard, but no fentanyl.

2. Motion to suppress. a. Standard of review. "On

appeal, we review a ruling on a motion to suppress by accepting

'the judge's subsidiary findings of fact absent clear error but

conduct an independent review of [the] ultimate findings and

conclusions of law.'" Commonwealth v. Polanco, 92 Mass. App.

Ct. 764, 769 (2018), quoting Commonwealth v. Ramos, 470 Mass.

740, 742 (2015). "We may affirm the denial of a motion to

suppress on any ground supported by the record." Commonwealth

v. Washington, 449 Mass. 476, 483 (2007).

b. Search of "any person present". A search warrant

authorizing the search of any person present "can only be valid

where the underlying circumstances presented to the issuing

judge or clerk clearly demonstrate probable cause to search the

named premises and to believe that all persons present are

involved in the criminal activity afoot." Commonwealth v.

5 The other person testified that he had left the license
plates in his girlfriend's car.
6

Brown, 68 Mass. App. Ct. 261, 266 (2007), quoting Commonwealth

v. Smith, 370 Mass. 335, 344, cert. denied, 429 U.S. 944 (1976).

Even where the warrant authorizes the search of any person

present, the police must limit such searches to those within the

scope of the probable cause. See Commonwealth v. Souza, 42

Mass. App. Ct. 186, 187, 191 & n.3 (1997) (any person present

"[search] warrant [was] constitutionally defective as to the

[forty-three year old] defendant" where "police were

specifically trying to uncover a drug sale operation targeted at

junior and senior high school students").

Here, there is no challenge to the propriety of the search

warrant authorizing the search of any person present, nor does

the defendant contest that a person who entered the house for

five to ten minutes was within the scope of the probable cause

established in the warrant affidavit. The question then remains

whether the defendant was a person present in the house during

the execution of the search warrant. We conclude that the

execution of the search warrant here started before the

defendant exited the house, and therefore the defendant, who

remained in the vicinity of the house and in sight of the

police, was a "person present" who could be searched pursuant to

the warrant.6

6 Accordingly, we need not determine whether the portion of
the driveway the defendant was standing in was part of the
7

The defendant argues that the only moment that matters for

this purpose is the moment when the police announced the search,

at which point he was standing in the driveway. We rejected

this view in Commonwealth v. Perez, 68 Mass. App. Ct. 282, 286

(2007). There, "the defendant arrived at the premises during

the police search, knocked on the door, attempted to enter, and

when he saw the police, attempted to leave." Id. Police

searched him, and we held that the search was proper under the

"any person present" provision of the warrant because "the

defendant, arriving at the premises during a police search,

shared a like relationship with the premises and, therefore,

could be searched in these circumstances." Id. Accord State v.

Doyle, 918 P.2d 141, 145 (Utah Ct. App.), cert. denied, 925 P.2d

963 (Utah 1996) ("The time of execution could be limited to the

exact time the police serve the warrant, or it could be the

entire time the police are legitimately on the premises under

the authority of the warrant. We believe the latter is a more

reasonable interpretation").

The execution of a search warrant is not a single moment in

time, but rather a process, which can be lengthy depending on

the scope of the search and the surrounding circumstances. As

curtilage of the house. See Commonwealth v. Wittey, 492 Mass.
161, 174-175 (2023). That issue was poorly preserved and barely
explored in the suppression hearing.
8

this case demonstrates, police often delay announcing a search

to minimize the danger to everyone involved. Here, the police

waited until the target had left the house, thus reducing the

risk of violent resistance. This seems like a sensible

practice, and it would be unwise for us to create disincentives

to the police's executing a search warrant in the safest

possible fashion.

Here, while the surveillance officer was watching the house

in anticipation of the announcement of the search, he observed

the defendant drive up, enter the house, and then exit a few

minutes later and stand in the driveway. The surveillance

officer observed the defendant in the driveway from the time he

exited the house until the police announced the search and

searched the defendant. Under these facts, where the defendant

entered the house during the preannouncement surveillance and

remained in the vicinity and in sight of the police between

exiting the house and the police's announcing the search, the

police could search him under the "any person present" provision

of the search warrant.7 This view accords with that of our

7 We do not decide when, if ever, a search pursuant to an
any person present provision in a search warrant would be proper
where a person present had left the environs of the property or
the view of the police prior to the search. See People v.
Green, 33 N.Y.2d 496, 499 (1974) (warrant authorizing search of
apartment and people "found therein" did not justify police
following defendant and searching him "over 19 blocks away").
9

colleagues in other States. See Stokes v. State, 604 So. 2d

836, 837-838 (Fla. Dist. Ct. App.), review denied, 613 So. 2d 9

(1992) ("sufficient connection between [the defendant] and the

premises to be searched" where defendant was "seated on the

stairs immediately in front of the apartment," officer knew that

"drugs were sometimes sold on the stairs of the apartment," and

warrant allowed search of any person present); People v. Holmes,

206 A.D.2d 604, 605 (N.Y. 1994), aff'd after remand, 218 A.D.2d

924 (N.Y. 1995) (pursuant to any person present warrant, police

could search defendant "walking down a common interior

stairwell" outside target apartment); People v. Easterbrook, 43

A.D.2d 719, 720 (N.Y. 1973), aff'd, 35 N.Y.2d 913 (1974), cert.

denied, 421 U.S. 965 (1975) ("We are further of the opinion that

the search was not rendered invalid by virtue of the fact that

it took place outside the apartment. A search conducted a few

feet from the door of the premises of a person who had just

emerged therefrom is sufficiently proximate to the described

premises to fall within the purview of the [any person present]

warrant"). Cf. Quiles v. Kilson, 337 F. Supp. 2d 224, 230 (D.

Mass. 2004), aff'd, 426 F.3d 486 (1st Cir. 2005) (warrant

authorizing search of "any person present" did not extend to

children outside apartment).

3. Trial testimony that officer knew the defendant.

"Evidence of prior bad acts is generally inadmissible to show a
10

defendant's propensity to commit a crime." Commonwealth v.

Foreman, 101 Mass. App. Ct. 398, 401 (2022), quoting

Commonwealth v. Don, 483 Mass. 697, 713 (2019). Evidence that a

police officer knew persons "from 'dealing with them in the

past'" is suspect, and should be avoided. Commonwealth v.

Gonzalez, 47 Mass. App. Ct. 255, 259 (1999). "Because the

defendant did not object at trial to the challenged testimony

. . . , 'we review his claims to determine whether there was

error, and, if so, whether the error created a substantial risk

of a miscarriage of justice.'" Commonwealth v. Diaz, 100 Mass.

App. Ct. 588, 596 (2022), quoting Commonwealth v. Bannister, 94

Mass. App. Ct. 815, 822 (2019).

Here, the lead case detective and his partner

unresponsively testified that the partner, who had twenty-two

years of police experience, was "familiar with the defendant"

and "recognized Mr. Cintron, as [the officer had] dealt with him

in the past." Evidence that an officer knew a defendant can be

proper where relevant and not unduly prejudicial. See

Commonwealth v. Westbrook, 58 Mass. App. Ct. 692, 699 (2003)

(testimony that police had driven defendant home one week prior

to assault properly admitted to explain how police knew where

defendant lived); Commonwealth v. Pleas, 49 Mass. App. Ct. 321,

328-329 (2000) (police officer properly allowed to identify

defendant in surveillance videotape where picture quality poor,
11

officer knew defendant well socially, and defendant had changed

his appearance). Here, where the defendant was charged with

disorderly conduct and resisting arrest, the evidence was

arguably relevant to show -- contrary to what the defendant

hinted at in his opening statement and would eventually testify

to -- that he must have recognized the officers and known they

were police. See Commonwealth v. Accime, 476 Mass. 469, 472-473

(2017), quoting Commonwealth v. Sholley, 432 Mass. 721, 727 n.7

(2000), cert. denied, 532 U.S. 980 (2001) ("the disorderly

conduct provision in [G. L. c. 272,] § 53[,] requires proof that

a person, 'with purpose to cause public inconvenience, annoyance

or alarm, or recklessly creating a risk thereof,' engaged in

'fighting or threatening, or in violent or tumultuous behavior'

or created 'a hazardous or physically offensive condition by any

act which serves no legitimate purpose of the actor'");

Commonwealth v. Sylvia, 87 Mass. App. Ct. 340, 341-342 (2015),

quoting G. L. c. 268, § 32B (a) ("A defendant resists arrest if

'he knowingly prevents or attempts to prevent a police officer,

acting under color of his official authority, from effecting an

arrest of the actor or another, by [1] using or threatening to

use physical force or violence against the police officer or

another; or [2] using any other means which creates a

substantial risk of causing bodily injury to such police officer

or another'").
12

In any event, there was no substantial risk of a

miscarriage of justice. The two "remark[s] in the instant case

about [the officer] knowing [the defendant] w[ere] isolated and

not adverted to in closing arguments." Gonzalez, 47 Mass. App.

Ct. at 259 (holding that "[i]nsufficient prejudice attached to

the remark [that the officer knew the defendant] to have it

constitute reversible error"). The jury were told repeatedly

that the defendant was not the target of the search warrant,

acquitted him of possession with intent to distribute, and

convicted him only of disorderly conduct and the lesser included

offense of straight possession. There was no substantial risk

of a miscarriage of justice. See Commonwealth v. Starkweather,

79 Mass. App. Ct. 791, 803 (2011).

Judgment affirmed.