Commonwealth v. Escalera

462 Mass. 636

970 N.E.2d 319

COMMONWEALTH

v.Jose M. ESCALERA.

SJC–10996.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 8, 2011.

Decided June 29, 2012.

William T. Harrington, Boston, for the defendant.

Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

DUFFLY, J.

Based on a confidential informant's tip and surveillance that included controlled drug purchases, Brockton police obtained a warrant to search the defendant's apartment. Officers found cocaine, cash, and a small digital scale in the apartment. They also searched the locked basement of the apartment building and found over thirty grams of heroin, two handguns, and loose ammunition. Following a jury trial in the Superior Court, the defendant was convicted of trafficking in heroin, G.L. c. 94C, § 32E ( c ); possession of cocaine with intent to distribute, G.L. c. 94C, § 32A ( c ); corresponding school zone violations, G.L. c. 94C, § 32J; unlawful possession of a firearm without a firearm identification (FID) card, G.L. c. 269, § 10 ( h ); ¹ and unlawful possession of ammunition without an FID card, G.L. c. 269, § 10 ( h ). The defendant appealed from his convictions and from the denial of his motion to suppress, claiming that police did not show a nexus between his suspected drug dealing and his apartment sufficient to establish probable cause for the warrant to issue.

A divided panel of the Appeals Court determined that the defendant's motion to suppress was properly denied because a sufficient nexus between the suspected drug dealing and the defendant's apartment had been established, and because the defendant had no objectively reasonable expectation of privacy in the basement of the apartment building. However, based on its conclusion that the admission at trial of certificates of drug and ballistics analysis without the testimony of analysts who had performed the tests violated the defendant's confrontation right under the Sixth Amendment to the United States Constitution, the Appeals Court reversed all convictions except that of unlawful possession of ammunition.²Commonwealth v. Escalera, 79 Mass.App.Ct. 262, 945 N.E.2d 415 (2011). We granted the defendant's application for further appellate review.

We conclude that the search warrant application established probable cause to believe that evidence of the defendant's drug dealing would be found in his apartment, and that the motion judge did not err in finding that the basement was within the curtilage of the defendant's apartment. However, we conclude that, because the admission in evidence of the certificates violated the defendant's confrontation right under the Sixth Amendment, the defendant is entitled to a new trial.

Background. On April 11, 2005, Detective Timothy Stanton of the Brockton police department obtained a warrant to search 449 North Main Street, apartment no. 2, in Brockton (apartment). In reviewing the sufficiency of the warrant application, our inquiry “begins and ends with the ‘four corners of the affidavit’ ” that supported it. Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428, 657 N.E.2d 237 (1995). Read in its entirety, Commonwealth v. Pina, 453 Mass. 438, 439, 902 N.E.2d 917 (2009), Stanton's affidavit sets forth the following information.

In late March, 2005, Stanton, an eleven-year veteran of the Brockton police department, with training and experience in narcotics investigations, had a conversation with a confidential informant who stated that “he knew of a dark skinned Hispanic male who was selling heroin” in varying amounts and prices in Brockton. The informant stated that the heroin dealer walked with a pronounced limp; that he could be reached at either of two telephone numbers that the informant provided to Stanton; and that the dealer would ask “how many” and then provide a location where he would meet a purchaser to exchange money for heroin. According to the informant, the dealer would arrive at the location either in a white Toyota sedan or a “ ‘sharp’ looking” green Audi sedan with tinted windows and after-market wheels. The informant stated also that the dealer had described ownership of several firearms and rifles and that he had indicated an interest in purchasing any weapons the informant could find for him.

The informant said he would be willing to make a controlled purchase of drugs from this dealer, the male whom the informant later identified as the defendant from a photograph in police records. Over the course of the next two weeks, Stanton arranged to have the informant conduct four controlled heroin purchases. On each occasion, the informant called one of the telephone numbers he had provided; a male asked, “What do you need?” and the informant requested a specific quantity of heroin (either “one” or “two”). After searching the informant to ensure that he was not concealing drugs, Stanton provided the cash for the purchases, in amounts ranging from forty to one hundred dollars. ³ Stanton, with other detectives, then followed the informant to the agreed-upon location.

On the day of the first controlled purchase, as on each of the three subsequent occasions, the defendant arrived at the designated location within several minutes of the informant's telephone call, driving either the green Audi sedan with customized wheels or a white Toyota; the informant got into the vehicle and took a short ride. Each time after leaving the vehicle, the informant met with Stanton and gave him what he had purchased. The informant said that he sat next to the defendant during the drive, and the defendant produced from his person one or two clear plastic bags containing a brown substance that he exchanged with the informant for cash. Field tests conducted on the brown substance after each sale produced positive results for heroin.

Other detectives involved in surveillance of the transactions followed the defendant's vehicle and reported to Stanton that, on each of the four dates, the defendant drove directly to 449 North Main Street (apartment building); he was observed leaving his vehicle and walking with a pronounced limp to the building, which he entered through a door located at the southeast corner. After the defendant returned from two of the controlled purchases, police reported that they did not see the defendant leave the building “into the normal hours of sleep,” and an early morning check found the vehicle he had driven the preceding day parked as he had left it.

Additional surveillance was conducted during the two-week period in which the controlled drug purchases took place.⁴ On the day of the third controlled purchase, detectives conducting surveillance at the apartment building saw the defendant leave the parking area of the apartment building in the Toyota several minutes after the informant initiated a telephone call to purchase drugs; the defendant was “followed and observed approaching the meet location and proceeding directly to the [informant].” After the exchange, the defendant was observed returning directly to the apartment building.

Police also observed two other transactions conducted by the defendant in a manner similar to the controlled drug sales, and made additional observations regarding the defendant's actions after returning to the apartment building. On April 1, 2005, police saw the defendant leave the building through a rear door, get into the Audi with another Hispanic male, and drive “so as to ensure he was not being followed”; as a consequence, a “loose surveillance was conducted,” and the defendant was next observed meeting with a male and female. The female left her motor vehicle and entered the Audi; after a brief ride, the female left the Audi, and the defendant and his unidentified companion drove directly back to the apartment building, parking next to the white Toyota. The companion entered the building, and the defendant walked directly to the Toyota, looked around before unlocking the car, and opened the vehicle's hood. The defendant looked around again and then either took something from the engine compartment of the Toyota or placed something in it before closing the hood. He repositioned the Toyota so that it was blocking the Audi, then entered the rear of the building. Three days later, the detectives observed the defendant leave from the rear of the building and get into the Audi. He was followed and observed meeting a female who got into his car, was taken for a short ride, and was dropped off. The defendant returned directly to the apartment building and unlocked the Toyota, which he entered briefly. He then walked directly to the rear of the building and entered.

Stanton met with the owner of the apartment building on April 7, 2005. The owner identified the defendant, his girl friend Lori Collins, and a male relative of the defendant as the residents of the apartment. The owner informed Stanton that, other than the owner, the occupants of the apartment were the only people in the building who had access to the locked basement and a locked storage container located to the rear of the apartment building. ⁵

Based on this information, a magistrate issued a warrant authorizing the search of the apartment, and any person present, for drugs and materials, products, equipment, books, records, and proceeds related to drug distribution. ⁶ The warrant was executed in the early morning hours of April 11; the defendant and Collins were found asleep in a bed in the first bedroom encountered on entering the apartment. During the search of the apartment, police found eight bags of cocaine hidden inside an air conditioning unit and seventy-eight dollars in cash in a coat in a second bedroom; $238 in cash, a shoulder holster, and two cellular telephones on a night stand in the defendant's bedroom; and a digital scale and assorted...