WORCESTER— The state Appeals Court has affirmed the suppression of drug evidence by a lower court judge who had harsh criticism for methods used by the Worcester vice squad and expressed disbelief in police testimony.

In a 2-1 decision issued Friday, the Appeals Court upheld Superior Court Judge Peter W. Agnes Jr.’s decision not to allow the evidence — heroin, marijuana and $306 seized on Sept. 16, 2002, from a Ford Explorer owned by Aaron T. Wade of Worcester — to be introduced in the case. The appellate court found Judge Agnes did not err when he concluded the police affidavit in support of the issuance of a search warrant for the Explorer failed to establish probable cause to believe drugs or related items would be found in the vehicle.

Mr. Wade’s lawyer, Irwin Kwiat, said yesterday he expected the ruling would make it more difficult for drug investigators to obtain search warrants for vehicles in the future.

Judge Agnes’ 2003 ruling that the search warrant for Mr. Wade’s vehicle was invalid because it was not supported by probable cause was the only aspect of his 25-page decision challenged by prosecutors in their appeal of the order. They did not appeal the judge’s suppression of heroin, cocaine, marijuana and $16,920 in cash found by police in Mr. Wade’s apartment at 85 Prospect St., or his finding that the search warrant for an apartment at 15 Liberty St., where no drugs were found, was also invalid.

Writing “the tactics used by the police in this case should be of concern to a wider audience than those involved directly in this case,” Judge Agnes chastised vice squad officers for using what he described as “subterfuges” and “shortcuts that undermine the constitutional rights of all of us.”

The judge noted in his ruling that the responsibility for establishing strategies in the war on drugs rests with the Legislature and governor.

“However, as long as a priority is placed on a law enforcement approach to the eradication of the drug problem, every person in this Commonwealth has an interest in insuring that the police observe the limits imposed by our state and federal constitutions and laws. In this case, those limits were not observed,” Judge Agnes wrote.

“While the defendant may indeed have been engaged in illegal activities in September 2002, certain officers of the Worcester Police Department set out to make a case against him by using shortcuts that undermine the constitutional rights of all of us,” the judge said in his decision.

Judge Agnes found that police unlawfully stopped and searched the vehicle of Mr. Wade’s girlfriend, Sarah Hebert, and threatened to arrest her, without justification, in an effort to induce Mr. Wade’s cooperation. He further found that investigators ignored Mr. Wade’s request for a lawyer, despite Sgt. Timothy O’Connor’s testimony to the contrary, and obtained Mr. Wade’s signature on a consent form allowing the search of the Prospect Street apartment “even though he can barely read.”

Gerald J. Vizzo, who was police chief at the time, voiced his support for the vice unit “and their work and reputation for integrity in conducting thorough and professional investigations” after Judge Agnes’ ruling. He also noted that the department was reviewing policies, procedures and standards, and said that any revisions deemed necessary would be made.

“Because the findings giving rise to the judge’s concerns about police behavior were made in connection with issues other than the one presented on appeal, we do not recite them,” Appeals Court Judge Charlotte Anne Perretta wrote in a footnote to last week’s decision.

The appellate court issue was whether Judge Agnes was correct in finding that the affidavit for the search warrant for Mr. Wade’s vehicle did not establish probable cause to believe drugs would be found inside.

The affidavit, filed by Officer Larry T. Williams, referred to so-called controlled buys of cocaine from Mr. Wade by a confidential informant that were witnessed by police. Officer Williams said in the affidavit his training and experience led him to conclude Mr. Wade was distributing cocaine using his green Ford Explorer and that he was keeping the drugs at 15 Liberty St.

The warrants for the vehicle and the Liberty Street apartment were issued by a magistrate on Sept. 12, 2002, and were executed 4 days later.

The Appeals Court said there was nothing in the affidavit suggesting the Explorer was used to store drugs. The court further found the affidavit failed to establish a “requisite timely nexus” since it contained no basis for an inference that drugs would be in the vehicle at the time of the issuance or execution of the warrant.

The court said it was not persuaded by the argument of Assistant District Attorney Robert J. Bender, who cited cases in other jurisdictions, that Mr. Wade’s alleged drug sales, coupled with his use of the Explorer “to drive to assignations with the buyer,” were enough to establish probable cause.

Judge Gary S. Katzmann said in a dissenting opinion the affidavit passed muster and supported a probable cause determination drugs or other items indicative of drug-dealing would be found in the vehicle.

Mr. Kwiat said the Appeals Court ruling would likely make it harder for drug investigators to obtain search warrants for vehicles in many cases.

“The affiant is going to have to point to specific facts that would justify a magistrate drawing an inference that it’s more probable than not that the drugs are in that car at the time the warrant issues,” he said.

It could not be determined yesterday whether District Attorney John J. Conte planned to seek further appellate review of the suppression order by the state Supreme Judicial Court.

December 14, 2003

Subterfuge' used in bust, says judge -
Evidence is suppressed

Worcester Telegram & Gazette (MA)

Author: Gary V. Murray

WORCESTER -- A judge has ordered the suppression of evidence in a drug case in which he accused certain members of the Worcester Police Department vice squad of acting unlawfully and using ``subterfuges'' and ``shortcuts that undermine the constitutional rights of all of us.''

In a 25-page decision allowing a defense motion to suppress evidence, Superior Court Judge Peter W. Agnes Jr. wrote, ``The tactics used by the police in this case should be of concern to a wider audience than those involved directly in this case.''

The judge noted in his ruling that the responsibility for establishing strategies in the war on drugs lies with the Legislature and governor.

``However, as long as a priority is placed on the law enforcement approach to the eradication of the drug problem, every person in this Commonwealth has an interest in insuring that the police observe the limits imposed by our state and federal constitutions and laws. In this case, those limits were not observed,'' Judge Agnes wrote.

The suppression of statements and physical evidence, including quantities of marijuana, cocaine and heroin seized by police from a vehicle and apartment, came in the Worcester Superior Court case of Aaron T. Wade, 30, who is awaiting trial on a series of drug charges to which he has pleaded not guilty.

Mr. Wade's lawyer, Irwin Kwiat, sought the suppression in a motion in which he alleged that evidence was gathered in violation of his client's constitutional rights.

The facts of the case, as outlined in the judge's findings, were as follows:

On the morning of Sept. 16, members of the vice squad, under the direction of Sgt. Timothy O'Connor, were engaged in a drug investigation targeting Mr. Wade. Based on information provided by a confidential informant and drug purchases made by the unidentified individual, Sgt. O'Connor had obtained a search warrant for Mr. Wade's apartment at 15 Liberty St. and his 1995 green Ford Explorer.

Sgt. O'Connor took up a position in a lot at 85 Prospect St., which he also had described as a target of the investigation. He saw Mr. Wade exit 85 Prospect St. and get into a green Ford Explorer. Mr. Wade had begun to drive away when a woman, later identified as his girlfriend, Sarah Hebert, came out of 85 Prospect St., waved him down and handed him an item.

The two kissed. Mr. Wade drove off in the Ford Explorer and Ms. Hebert left in another vehicle.

Sgt. O'Connor testified during a hearing on the motion to suppress that he saw Ms. Hebert hand Mr. Wade a plastic baggie that she had retrieved from her vehicle. However, Judge Agnes found that Ms. Hebert handed Mr. Wade his driver's license, which he had left in her car.

Sgt. O'Connor informed other officers that there had been a suspicious exchange between the defendant and his girlfriend and gave instructions to arrest Mr. Wade, stop Ms. Hebert, search her vehicle and bring her to 15 Liberty St.

The judge found that Ms. Hebert was stopped a short time later by Officer Robert Lombardi, who was assisted by Officer Daniel O'Connor. Ms. Hebert, who was not charged, was ordered out of the vehicle and placed in handcuffs. The officers searched the car and its contents, including Ms. Hebert's handbag, the judge found.

Ms. Hebert was then taken in an unmarked police van to 15 Liberty St., where Officer Richard Sandberg had stopped Mr. Wade after he had parked his Explorer in a lot across from the Liberty Street address. Officer Sandberg told Mr. Wade that he was under arrest for selling crack cocaine, Judge Agnes found.

Sgt. O'Connor and other officers arrived and the sergeant showed Mr. Wade the warrants for 15 Liberty St. and the Ford Explorer. He advised Mr. Wade of his Miranda rights, but Mr. Wade was not asked whether he understood the rights and did not indicate he wished to speak with police, the judge found.

A search of the Explorer turned up plastic packets containing what were later determined to be marijuana and heroin, as well as about $300 in cash.

Mr. Wade was brought inside the apartment at 15 Liberty St., and at some point, Ms. Hebert also arrived there. Immediately upon her arrival, Officer James O'Rourke commented that the apartment, where no drugs were found, was where Mr. Wade ``brings his hookers to smoke crack,'' the judge found.

It was at that point, Sgt. O'Connor said, that Mr. Wade asked to speak to police outside of Ms. Hebert's hearing, offered to cooperate and was again advised of his Miranda rights before signing a form consenting to a search of an apartment at 85 Prospect St. Marijuana, cocaine, heroin and $16,920 in cash were seized from the Prospect Street apartment.

Sgt. O'Connor said Mr. Wade never asked to speak to a lawyer.

In a footnote to the decision, Judge Agnes said he did not credit Sgt. O'Connor's testimony on those points or Officer O'Rourke's testimony that while inside 15 Liberty St., Mr. Wade said he was in possession or control of a large quantity of drugs.

Judge Agnes found, instead, that Sgt. O'Connor told Mr. Wade he intended to arrest Ms. Hebert and charge her with possession of the drugs found in the Explorer if he did not cooperate. When Mr. Wade asked to talk to a lawyer, Sgt. O'Connor told another officer to place Ms. Hebert under arrest, the judge found.

Mr. Wade then said he would cooperate if his girlfriend were not arrested, according to Judge Agnes' findings. The judge also found that no one read Mr. Wade the consent form before he signed it and that Mr. Wade ``reads at a very low level and was not capable of reading and understanding the consent form without assistance.''

Judge Agnes ruled that the warrants authorizing police to search Mr. Wade's Explorer and the apartment at 15 Liberty St. were invalid because they were not supported by probable cause. The judge said there was no information in the police affidavit in support of the warrants suggesting drugs were ever seen in Mr. Wade's vehicle or home.

He also found that the stop of Ms. Hebert's vehicle was unlawful, that Mr. Wade did not voluntarily consent to the search of 85 Prospect St. and that the entry and search there were illegal.

``Although they obtained search warrants, they resorted to shortcuts and subterfuges when those warrants did not produce the results they sought,'' Judge Agnes wrote in reference to the officers involved in the case.

``They detained Sarah Hebert and searched her vehicle without probable cause or reasonable suspicion of wrongdoing. They threatened to arrest Sarah Hebert, without justification, in an effort to induce the defendant to cooperate. They ignored the defendant's request for an attorney, and obtained his signature on a consent to search form even though he can barely read.

``While the defendant may indeed have been engaged in illegal activities in September, 2002, certain officers of the Worcester Police Department set out to make a case against him by using shortcuts that undermine the constitutional rights of all of us,'' Judge Agnes wrote.

He suggested police could have further developed the information they had in the case ``by conducting surveillances and genuine controlled buys that would have either dispelled their suspicions or established an unassailable case of probable cause.''

Judge Agnes concluded his ruling by quoting from a 1995 state Appeals Court decision: ``The community that fails to insist on scrupulous observance of high standards by its police and prosecutors has lost track of its fundamental purposes, and courts that approve well-meaning but unconstitutional conduct by law enforcement officers, even in the case of undoubtedly guilty defendants, deal the administration of justice and the integrity of the legal process a greater blow than when they permit a particular criminal to delay, or sometimes even wholly to escape, due punishment by insisting on an untainted constitutionally correct trial.''

Judge Agnes' ruling comes on the heels of two recent decisions by Superior Court Judge Ralph D. Gants in which he found that Sgt. O'Connor falsely testified in an effort to justify police actions in drug investigations. Sgt. O'Connor has maintained he testified truthfully in both instances.

Assistant District Attorney Christopher P. Hodgens filed a motion asking Judge Gants to reconsider his decision in one of the cases, describing the judge's finding that Sgt. O'Connor lied as ``clearly erroneous'' and subject to reversal on appeal. He asked the judge to reopen the hearing and allow the prosecution to present additional evidence.

Judge Gants denied the motion on procedural grounds, saying he lacked jurisdiction because a notice of appeal had been filed. District Attorney John J. Conte, citing case law, said the judge was in error when he determined that he lacked jurisdiction to address the motion to reconsider.

Mr. Conte said last week he would ask the court for time to obtain and review a transcript of the hearing in Mr. Wade's case before deciding whether to appeal Judge Agnes' ruling.

Police Chief Gerald J. Vizzo voiced support for the vice unit.

He said the vice unit, as well as all other units and divisions in the Worcester Police Department, are currently under review with regard to policies, procedures and standards.

``I have only recently received a copy of Judge Agnes's decision which I will review with my command staff,'' he said. ``If there are procedures or practices specific to the vice unit, i.e. affidavits, search warrants, Miranda rights, that need to be addressed or corrected whether through training or policy, they will be made. I want to reiterate I support the entire police vice unit and their work and reputation for integrity in conducting thorough and professional investigations.''

September 17, 2002

Police seize over $17,000, heroin in city arrest

Worcester Telegram & Gazette (MA)

WORCESTER -- Police seized $17,226 in cash and 10 grams of what they said was pure heroin, along with cocaine, marijuana and some prescription drugs, during an arrest yesterday morning.

Aaron T. Wade, 29, of 15 Liberty St. was arraigned yesterday and held on $20,000 cash bail on drug charges.

Police said they arrested him in his car as he was leaving his apartment at 85 Prospect St.

Police said they found Mr. Wade in possession of heroin and marijuana packaged for sale and then searched a house he owns at 15 Liberty St. and the apartment at 85 Prospect St.

They confiscated a small amount of heroin and packaging materials at the house and two pounds of marijuana, the 10 grams of pure heroin valued at about $20,000, a quantity of Percocet and Valium, 10 grams of cocaine and the cash at the apartment.

Mr. Wade was charged with possession of heroin with intent to distribute; possession of cocaine with intent to distribute; possession of marijuana with intent to distribute; illegal possession of Valium and Percocet; and possession of marijuana, cocaine and heroin with intent to distribute within 1,000 feet of a school.

Police said they also confiscated the 1994 Ford Explorer he was driving at the time of the arrest.

The seizures were made after a monthlong investigation by the Worcester Police Department Vice Squad.