Commonwealth v. Diaz-Arias

98 Mass.App.Ct. 504

157 N.E.3d 616

COMMONWEALTH

v.Deiby DIAZ-ARIAS.

No. 19-P-624

Appeals Court of Massachusetts, Suffolk..

Argued April 16, 2020

Decided September 25, 2020

Shane T. O'Sullivan, Assistant District Attorney, for the Commonwealth.

Elizabeth C. Lazar (Apriel F. Jordan also present) for the defendant.

Present: Milkey, Shin, & Englander, JJ.

ENGLANDER, J.

After a months-long investigation into a drug distribution ring in and around Boston, the police obtained and executed a search warrant for the defendant's apartment, which was located in a multiunit building in the Dorchester neighborhood of Boston. There they encountered the defendant, a woman who was apparently his wife, and an infant child. After the police told the defendant that his wife would be considered "liable" if the defendant did not show the police where any drugs were located, the defendant made incriminating statements -- including advising the police where drugs were located. A Superior Court judge ruled that the warrant affidavit did not establish probable cause to search the defendant's particular apartment within the multiunit building. In addition, after an evidentiary hearing the judge suppressed the defendant's statements on the ground that they were compelled against the defendant's will. We reverse both rulings.

Background. 1. The search warrant.¹ The warrant affidavit describes a detailed police investigation that spanned at least January of 2017, through March 9, 2017, when the warrant was executed. The investigation centered on a person known as "Carlos," who could be reached at a particular telephone number. Once called, Carlos would identify a location for a drug transaction, would travel to the location in a vehicle known to the police, and would conduct the exchange.

The affidavit directly links the defendant to this distribution scheme. It details eight controlled drug buys from Carlos, and states that the defendant drove Carlos to, and was observed at the scene of, two of those controlled buys. The affidavit also links the defendant's apartment building at 289 Hancock Street, in Dorchester, to the distribution scheme. It describes how Carlos regularly drove from Lawrence to 289 Hancock Street in the morning, entered the building, remained there relatively briefly, and then left from 289 Hancock Street to travel to and engage in drug transactions. This pattern was observed on many occasions, by visual surveillance and through a global positioning system tracker that was attached to Carlos's vehicle (pursuant to a warrant). In some instances Carlos would leave from 289 Hancock Street in the morning to conduct various stops, return there during the day, and then leave again to conduct additional stops.

As a result of these observations, the question remained: which apartment was Carlos visiting in the multiunit building at 289 Hancock Street? The affidavit concluded that Carlos was visiting the defendant's apartment, and that the defendant's apartment was apartment 2R. The evidence supporting this conclusion included: (1) the defendant had been observed participating in distributions with Carlos, (2) the defendant had been observed with Carlos outside 289 Hancock Street, and also had been observed entering the building, (3) the police observed the defendant's car parked in the lot at 289 Hancock Street, and (4) according to utility provider Eversource, the defendant was the liable party for utilities for apartment 2R.

The warrant affidavit goes on to describe how the police engaged in a ruse to obtain further information regarding where Carlos went once inside the building. An officer posed as a National Grid gas company employee and went to 289 Hancock Street, where he encountered Carlos as Carlos was exiting the building. The officer asked, "Do you smell gas?" Carlos answered no, but offered to let the officer into the building. The officer then followed Carlos into the common areas of the building, through two separate locked doors. Eventually the officer and Carlos came to the area outside apartment 2R, which Carlos identified as an apartment where he, Carlos, lived. Carlos made a telephone call and the defendant opened the door of 2R, after which the officer, who was standing in the hallway, spoke briefly to the defendant, who was standing in the doorway.

Based primarily upon the above information, the police obtained a warrant to enter and to search 289 Hancock Street, apartment 2R, for drugs and related evidence of drug distribution. The police executed the warrant in March of 2017. Six or seven officers participated. Upon entering the apartment the police encountered the defendant, as well as an adult woman and an infant child.² A Spanish-speaking officer read the defendant the Miranda warnings, in Spanish, and the defendant confirmed that he understood them. The officers then began questioning the defendant, with a detective asking the questions in English and the Spanish-speaking officer interpreting. The officers told the defendant that they had a warrant, that they were looking for drugs, and that it would be "easier" if the defendant pointed out where the drugs were located. The defendant denied having any drugs. The officers then said that if they found drugs in their own search, the woman would also be "liable."³ The defendant thereafter walked with the officers to the kitchen and pointed to a box on top of the refrigerator. An officer located drugs in the box. The defendant said it was fentanyl. The defendant also identified a mixing agent and stated that he had paid $1,000 for the fentanyl.

The defendant moved to suppress both the evidence seized from the apartment and the communications he had with the officers during the search. In a thoughtful decision the motion judge held that the information obtained through the gas company ruse was obtained unconstitutionally and had to be excised from the warrant in evaluating probable cause. The judge then concluded that the remainder of the affidavit did not establish probable cause to search apartment 2R, because it contained insufficient information as to which apartment Carlos visited within 289 Hancock Street -- that is, which was the defendant's apartment. The judge also suppressed the defendant's communications with the officers, concluding that the defendant "did not voluntarily speak. While [the defendant] was fully advised of his Miranda warnings, the coercion exerted on him to assist the police in conducting the search by wrongfully threatening his wife and child rendered that waiver involuntary."

The Commonwealth was granted leave for an interlocutory appeal.

Discussion. 1. Probable cause for the warrant. We first address whether the warrant affidavit established probable cause to search apartment 2R at 289 Hancock Street. Our review of the sufficiency of the warrant application "always begins and ends with the ‘four corners of the affidavit’ " (citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003). The question is whether the affidavit established probable cause to believe that relevant evidence of the alleged criminal activity would likely be found in the apartment. See id. at 298, 300, 798 N.E.2d 275. Probable cause "does not require a showing that evidence more likely than not will be found." Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509, 127 N.E.3d 282 (2019). Rather, probable cause is merely that "quantum of evidence from which the magistrate can conclude, applying common experience and reasonable inferences, that items relevant to apprehension or conviction are reasonably likely to be found at the location." Id. Additionally, "[i]n conducting our review, our cases emphasize that we should be practical, and nontechnical: ‘[i]n dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ " Id., quoting Commonwealth v. Anthony, 451 Mass. 59, 68, 883 N.E.2d 918 (2008).

We conclude that the warrant affidavit established probable cause as to apartment 2R. In so ruling we need not address the interesting issue of whether the officer's ruse was constitutional,⁴ because even absent the information from the ruse the warrant affidavit's remaining details were sufficient. As discussed above, Carlos was shown to be a drug dealer, engaged in the regular distribution of drugs by a "courier" type service. He was the seller in eight controlled buys in a two-month period. The affidavit also showed that Carlos did not sleep at 289 Hancock Street but that he regularly came to the building, that he would enter and then exit the building after a relatively brief period, and that frequently, Carlos would leave from 289 Hancock Street to drive around and deliver drugs. Nothing more was required to establish probable cause to believe that Carlos was using some location within 289 Hancock Street as a staging point for the drug distribution -- it is readily and "practically" knowable or inferable from the extensive facts in the warrant affidavit. See Commonwealth v. Silva, 94 Mass. App. Ct. 270, 273, 113 N.E.3d 400 (2018) (sufficient nexus to apartment building where defendant was observed leaving from it and then traveling to drug purchase sites on multiple occasions). See also Commonwealth v. Escalera, 462 Mass. 636, 646, 970 N.E.2d 319 (2012) (reasoning similarly).

The affidavit also established probable cause specifically as to apartment 2R. True, assuming the ruse information is excised, there is no direct evidence linking Carlos to that particular apartment. But as discussed above, the probable cause standard is a practical standard, not a burden of proof at trial. Here the affidavit showed that the defendant likely lived at 289 Hancock Street. His car was regularly parked there. He was seen there, outside with Carlos. Most importantly, the defendant was the named party on the...