COMMONWEALTH vs. EDWIN RIVERA.

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
25-P-566
COMMONWEALTH
vs.
EDWIN RIVERA.
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 multi-
State 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
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
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

3
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
2 The defendant objected to so much of the judge's ruling
that deemed an evidentiary hearing was appropriate under the
circumstances.

4
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
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
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

6
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
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.

7
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
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.

8
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
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.

9
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.
By the Court (Vuono, Meade &
Hillman, JJ.9),
Clerk
Entered: October 15, 2026.
9 The panelists are listed in order of seniority.