COMMONWEALTH v. EDWIN RIVERA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Statewide grand jury returned indictments charging the defendant, Edwin Rivera, with numerous drug-related offenses and money laundering.¹ The charges stemmed from a lengthy multiState investigation of a large-scale drug distribution scheme of which the defendant was alleged to have been a high-ranking member. During the course of the investigation, law enforcement officers executed a search warrant at an apartment in Lynn and found narcotics and other items associated with the illegal distribution of drugs. The defendant filed a motion to suppress the evidence. As we discuss in more detail below, a judge of the Superior Court initially denied the motion following a nonevidentiary hearing but subsequently reconsidered his ruling and allowed the motion following an evidentiary hearing. The Commonwealth then sought leave to pursue an interlocutory appeal. A single justice of the Supreme Judicial Court granted the Commonwealth's request and transferred the matter to this court. For the reasons that follow, we reverse the order allowing the motion to suppress.

Background. The search warrant authorized the police to search for controlled substances, packaging equipment, books and records, cash, computers, and cell phones. When the warrant was executed, the police found packages of suspected narcotics in a kitchen drawer and in a void located behind the front panel of a microwave oven. As noted, initially, the judge denied the defendant's motion to suppress these items. He concluded that although the affidavit submitted in support of the search warrant did not establish probable cause to believe that drugs and drug paraphernalia would be found in the apartment at the time of the search, it did establish probable cause to search for records and proceeds of drug activity. Furthermore, because the drawer and microwave compartment were places where the records and proceeds of drug distribution activity could be found, the judge concluded that the discovery and seizure of the drugs were justified under the inevitable discovery doctrine and, therefore, those items should not be suppressed.

Thereafter, the defendant filed a motion to reconsider in which he challenged the judge's application of the inevitable discovery doctrine. The judge allowed the motion, vacated his prior ruling, and scheduled an evidentiary hearing limited to the issue of whether the “seizure of the narcotics and drug paraphernalia at [the defendant's apartment] fell within the inevitable discovery doctrine exception to the warrant requirement.”²

The evidentiary hearing was held on October 31, 2024. One witness, State Police Trooper Kevin Flynn, who had training and experience in controlled substance investigations and served as the evidence collection officer during the execution of the search warrant, testified. He identified each of the items seized from the apartment and described where they were found. He also testified that, based on his training and experience, it was common for drug traffickers to store contraband inside “hides” in household appliances such as microwaves.³

On the basis of Trooper Flynn's testimony, which the judge credited in its entirety, and photographs depicting the location of the seized items, the judge found that 1) “[o]fficers opened a kitchen drawer and observed what appeared to be narcotics wrapped in green plastic wrap,” 2) another officer “removed the electronic key pad [sic] panel from the front of the microwave oven in the kitchen, revealing a compartment (a ‘void’) containing wiring” where, among other things, the police found a scale and two bags, a “zip lock” bag and a knotted plastic bag, both of which appeared to contain drugs, and 3) “[t]he kitchen cabinet, kitchen drawer, and the microwave compartment inside the [a]partment were places that cash proceeds from, and records of, drug distribution activities could be found.” The judge also found that the officers did not act in bad faith to accelerate the discovery of the evidence.

This time, however, the judge allowed the motion to suppress.⁴ He concluded that because the Commonwealth did not present any evidence with respect to the reasons for suspecting there was a void in the microwave oven and why cash proceeds or records of drug activity would be in the void, the Commonwealth had failed to prove by a preponderance of the evidence that discovery of the items by lawful means was “certain as a practical matter.” The judge acknowledged that it was a close question whether the discovery of the items seized from the kitchen drawer was inevitable, but here too he concluded that the Commonwealth had not met its burden.

Discussion. 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 their ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

To begin with, because there is no dispute that the affidavit established probable cause to believe that proceeds and records of the drug enterprise would be found in the apartment, we need not address the Commonwealth's argument that the search warrant application established probable cause to search for drugs and paraphernalia and we limit our discussion to the question whether the judge erred when he concluded that the Commonwealth had failed to meet its burden that it was certain as a practical matter that the drugs would have been found during a search for those items.⁵

“Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.” Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 709 (2014), quoting Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997). “The certainty of discovery must exist at the time of the unlawful seizure, ․ not develop as a result of circumstances occurring thereafter.” Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 514 (2005), citing Commonwealth v. O'Connor, 406 Mass. 112, 117 n.4 (1989).

Here, the police acted properly in obtaining a search warrant and were lawfully on the premises. They did not act recklessly or, as the judge specifically found, in bad faith when they opened the kitchen drawer or removed the front panel of the microwave oven.⁶ More importantly, as the judge also found, the officers were properly searching the drawer and microwave for cash and records when they found drugs and related evidence. See Fontaine, 84 Mass. App. Ct. at 710 (holding that discovery of firearm and ammunition was “certain as a practical matter” during authorized search for drugs because the items were found in same location where drugs could have been found); Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 480 (2005) (“Given that a handgun is at least as large as some of the items being sought under the warrant, we conclude that police discovery ․ was certain as a practical matter” [quotation and citation omitted]).

Although the test is a “demanding” one, Commonwealth v. Balicki, 436 Mass. 1, 16, (2002), quoting Commonwealth v. Perrot, 407 Mass. 539, 548 (1990), we conclude that the Commonwealth proved that at the time of the properly authorized search for proceeds and records of illegal drug activity it was certain as a practical matter that the drugs and related evidence seized from the apartment would have been discovered.⁷ In sum, because “there is no rational basis to keep [the] evidence from the jury in order to ensure the fairness of the trial proceedings,” we reverse the order allowing the defendant's motion to suppress. Fontaine, 84 Mass. App. Ct. at 710, quoting Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 798 (2011). As we have explained, the Commonwealth need only demonstrate that discovery of the seized items by “lawful means” was “certain as a practical matter.” Fontaine, 84 Mass. App. Ct. at 709. The Commonwealth has met this burden.⁸

Conclusion. The order allowing the defendant's motion to suppress is reversed and the case is remanded to the Superior Court for further proceedings consistent with this decision.

Order allowing motion to suppress reversed.

FOOTNOTES

1.   The defendant was charged with trafficking in fentanyl in excess of ten grams, G. L. c. 94C, § 32E (c1/2); possession with intent to distribute cocaine, G. L. c. 94C, § 32A; trafficking cocaine in excess of 200 grams, G. L. c. 94C, § 32E (b) (4); trafficking heroin in excess of thirty-six grams, G. L. c. 94C, § 32E (c) (2); conspiracy to violate the Controlled Substance Act, G. L. c. 94C, § 40; and money laundering, G. L. c. 267A, § 2.

2.   The defendant objected to so much of the judge's ruling that deemed an evidentiary hearing was appropriate under the circumstances.

3.   The judge noted that it was not clear if the use of such “hides” was common at the time the search warrant was executed. This observation has no bearing on our analysis.

4.   The Commonwealth filed a motion for reconsideration, which was denied.

5.   Defense counsel confirmed at oral argument that the defendant was “not disputing that portion of [the judge's] finding” that the affidavit established probable cause to search for proceeds and records of drug activity.

6.   We acknowledge that the judge found there was no testimony as to whether the kitchen drawer was open or closed at the time the officers saw the suspected drugs. However, because the officers were authorized to open the drawer to look for proceeds and records or drug activity, the absence of testimony on this point is not relevant.

7.   The police also found a vacuum sealer and a small mixer in a kitchen cabinet. The judge concluded that those items must also be suppressed because they were not included on the search warrant return or the evidence seizure log. We conclude otherwise. The failure to list the items in the search warrant return is not grounds for suppression. See Commonwealth v. Torres, 45 Mass. App. Ct. 915, 915-916 (1998). Moreover, Trooper Flynn acknowledged in his testimony that these items were recovered.

8.   Commonwealth v. Campbell, 475 Mass. 611 (2016), on which the defendant (and the judge) relies is distinguishable. In that case, the police officers learned that there was a default warrant for the defendant after they had seized the defendant without probable cause. Id. at 613, 621. Without evidence that the officers knew about the warrant before the seizure or that they intended to arrest the defendant based on the warrant and impound his car, the Supreme Judicial Court concluded that the existence of a default warrant “does not make inevitable discovery of evidence certain as a practical matter.” Id. at 622-623. By contrast, here the officers executed a search warrant supported by probable cause to believe that proceeds and records were in the apartment, and the judge found that these items could be discovered in the areas searched by the officers.