'SUBTERFUGE' USED IN BUST, SAYS JUDGE

Evidence Is Suppressed

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."

Chris Echegaray of the Telegram & Gazette staff contributed to this report.