Commonwealth v. Lewis

103 Mass.App.Ct. 61

215 N.E.3d 440

COMMONWEALTH

v.Joshua LEWIS.

No. 21-P-1171

Appeals Court of Massachusetts, Plymouth.

Argued April 10, 2023

Decided August 3, 2023

Nancy Dolberg, Committee for Public Counsel Services, for the defendant.

Joseph F. Janezic, III, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Massing, & Henry, JJ.

MILKEY, J.

Pursuant to a search warrant, the Brockton police discovered "crack" cocaine in the defendant's hotel room. He pleaded guilty to possessing a class B substance, while reserving his right to appeal the denial of his motion to suppress the cocaine and other fruits of that search. Because we conclude that the affidavit submitted in support of the warrant supplied a sufficient nexus between the defendant's drug dealing activity and the location to be searched, we affirm.

Background. The affiant, a seventeen-year veteran of the Brockton police department, was contacted in April 2019 by a confidential informant (CI), who informed him that the defendant was selling crack cocaine out of an apartment in Brockton. Brockton Housing Authority officers confirmed that the tenant of the apartment was someone who had the same last name as the defendant, and who "always ha[d] friends and family member [sic ] staying with him." As part of the investigation, the CI conducted two controlled "buys" from the defendant at the apartment. The controlled buys were arranged through the CI's calling a particular telephone number that the CI identified as belonging to the defendant. Based on these controlled buys, the officer obtained a warrant to search the apartment. However, when the officer went to execute the warrant, he learned from an unidentified source that the defendant had "moved out of" that apartment. The CI confirmed the defendant had "moved to the downtown area of Brockton," even though the CI had "no idea" of where the defendant specifically now was living.

Immediately thereafter, the officer received information from an unidentified source that the defendant now was staying in room 205 of a hotel in Brockton. The officer had his CI contact the defendant, using the same telephone number as before, to arrange another controlled buy. The CI was told by the "male" voice who answered the telephone to meet him at a particular location to purchase crack cocaine. The police then observed the defendant leave the hotel on foot to travel to the agreed-upon location. He was "under constant surveillance as he made his way over toward[ ]" that location, with the police losing sight of him only for what the officer characterized as "seconds." After the controlled buy took place, the police observed the defendant directly return to the hotel (specifically in the direction of room 205). As with the first two controlled buys, the officers followed the procedure set forth in Commonwealth v. Desper, 419 Mass. 163, 168, 643 N.E.2d 1008 (1994), and the substance was field-tested positive for cocaine.

On May 1, 2019, the officer learned from the hotel's front desk clerk that the defendant had checked into the hotel on April 26, 2019, and confirmed that he in fact was staying in room 205. After verifying the defendant's extensive drug-related criminal history, the officer on May 2, 2019, obtained a warrant to search that hotel room. There, the police discovered, among other items, a plastic bag containing a hard substance in seven individually wrapped portions and $694 in cash.

Discussion. "It is established that, in drug cases such as the present one, the affidavit accompanying a search warrant application must contain facts sufficient to demonstrate that there is probable cause to believe that drugs, or related evidence, will be found at the location to be searched." Commonwealth v. Pina, 453 Mass. 438, 440, 902 N.E.2d 917 (2009). "When that location is a residence, there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant's drug-selling activity and his residence to establish probable cause’ " (citation omitted). Id. at 440-441, 902 N.E.2d 917.

Determining the sufficiency of an affidavit is not an exercise in hermeneutics. Rather, its sufficiency "is to be decided ‘on the basis of a consideration of all of its allegations as a whole, and not by first dissecting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone.’ " Commonwealth v. Jordan, 91 Mass. App. Ct. 743, 752, 81 N.E.3d 340 (2017), quoting Commonwealth v. Santiago, 452 Mass. 573, 576, 896 N.E.2d 622 (2008). "An affidavit need not show that evidence more likely than not will be found; it must provide 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" (quotations and citation omitted). Commonwealth v. Hayes, 102 Mass. App. Ct. 455, 462, 205 N.E.3d 1136 (2023).

Turning to the case at hand, we begin by observing that the three controlled buys within a two-week period well established that the defendant was engaged in an illegal drug distribution operation "and had access to a supply for sale."

Commonwealth v. Defrancesco, 99 Mass. App. Ct. 208, 212, 164 N.E.3d 221 (2021), citing Commonwealth v. Escalera, 462 Mass. 636, 646, 970 N.E.2d 319 (2012). As the affidavit also established, prior to the defendant's move, he was selling crack cocaine out of the apartment. After his move, the fact that the defendant travelled directly from the hotel to the site of the third controlled buy on foot and returned directly to the hotel thereafter provided the police a basis for believing that evidence of his illegal drug operation could now be found in his room there.¹ See Commonwealth v. Young, 77 Mass. App. Ct. 381, 387, 931 N.E.2d 494 (2010) ("defendant's routine of walking directly from his apartment to the point of sale, and returning to his apartment immediately following the sale, raised a reasonable inference that he kept a cache of drugs in his [residence], which served as a base of operations for drug sales that he conducted within walking distance of his residence").

To be sure, the cases establish that a single observation of a defendant leaving his residence to travel to a controlled buy, standing alone, is insufficient to establish a sufficient nexus to that residence. See Escalera, 462 Mass. at 643, 970 N.E.2d 319 ; Pina, 453 Mass. at 441-442, 902 N.E.2d 917. See also Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 493-495, 156 N.E.3d 256 (2020) (Henry, J., concurring) (collecting cases in Appendix). Here, however, there was additional support for the requisite nexus. See Escalera, supra at 644, 970 N.E.2d 319 ("A single observation of a suspect leaving his home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information"). Most significantly, it is a reasonable inference that once the defendant moved from the apartment to the hotel, his room there became his base of operations.² Before applying for the search warrant, the Commonwealth corroborated that inference by the third controlled buy, as the affidavit explained.

We emphasize that the establishment of a nexus between the defendant's drug operations and the apartment where he likely had been living and, in any event, had been operating his business, does not relieve the Commonwealth from having to demonstrate a nexus between his drug operations and his new residence. Indeed, the case law reflects a residence-by-residence approach in which a search warrant affidavit must establish a sufficient nexus for each place to be searched. See Commonwealth v. Dillon, 79 Mass. App. Ct. 290, 295-296, 945 N.E.2d 428 (2011) (affidavit established probable cause to search one residence but not other).³ However, where, as here, there is evidence that the defendant was conducting an illegal drug operation out of one residence, and then moved to another location from which he continued to provide an on-demand crack cocaine business using the same telephone number, nothing in our case law requires the police to ignore the earlier evidence and start over from a blank slate. To the contrary, existing case law recognizes that whether an affidavit has shown a reasonable likelihood that evidence of an illegal drug operation will be found at the place to be searched turns on a commonsense evaluation of the pattern of activity that has been documented. See Commonwealth v. Colon, 80 Mass. App. Ct. 162, 169, 951 N.E.2d 1005 (2011) ("pattern of repeated activity giving rise to a reasonable inference that a dealer's residence is being used as the base for his drug operation provides sufficient nexus to search the residence" [citation omitted]). See also Defrancesco, 99 Mass. App. Ct. at 213, 164 N.E.3d 221.

We also acknowledge that the affidavit did not include certain details that the police appear to have known. For example, the fact that the defendant was the nephew of the tenant of the apartment was absent.⁴ However, putting aside whether the police might have had good reason to exclude such details from the affidavit, the question is ultimately not whether the affidavit might have been made stronger, but whether it was sufficient to establish probable cause to search room 205. See Andre-Fields, 98 Mass. App. Ct. at 486, 156 N.E.3d 256 ("absence of ... information is not fatal to a determination of probable cause" where "[w]e give considerable deference to the magistrate's determination, and even ‘the resolution of doubtful or marginal cases ... should be largely determined by the preference to be accorded to warrants’ " [citation omitted]). On balance, reading the averments of the affidavit in their totality, together with the reasonable inferences that can be drawn from them, we conclude that the affidavit...