Commonwealth v. Castillo (Lawyers Weekly No. 11-091-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-289 Appeals Court COMMONWEALTH vs. DOMINGO CASTILLO. No. 15-P-289. Suffolk. January 20, 2016. – July 25, 2016. Present: Trainor, Agnes, & Massing, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Findings by judge, Interlocutory appeal. Probable Cause. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on July 25, 2013. A pretrial motion to suppress evidence was heard by Debra Shopteese, J. An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Bradford R. Stanton for the defendant. TRAINOR, J. The Commonwealth appeals from the allowance of a motion to suppress evidence in the Roxbury Division of the Boston Municipal Court. The Commonwealth argues that three of the judge’s factual findings are clearly erroneous because they were not supported by the evidence presented at the suppression hearing. The Commonwealth also argues that the judge erred in allowing the motion to suppress because the police officer had probable cause to believe that the defendant had sold heroin to another individual. We vacate and remand. Background. “We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge.” Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016).[1] Officer Shawn Grant[2] testified that on the afternoon of July 24, 2013, he saw two individuals, later identified as Cesar Caban and James Niemczyk, on Washington Street in the Roxbury section of Boston walking back and forth while talking on cellular telephones (cell phones). Officer Grant alerted other officers in the area of the behavior and parked his unmarked police vehicle on the same side of Washington Street as the two individuals. After about fifteen minutes, Officer Grant saw the defendant cross Washington Street walking toward Caban and Niemczyk, who were now standing near a tree, and place an item into a residential mailbox[3] not more than twenty-five feet from the tree. The defendant then walked to the tree and took money which Caban had wedged into the branches. Caban then walked to and reached […]