Commonwealth v. Perez

90 Mass.App.Ct. 548

60 N.E.3d 1188

COMMONWEALTH

v.Santos PEREZ.¹

No. 15–P–1672.

Appeals Court of Massachusetts, Bristol.

Argued Sept. 8, 2016.

Decided Oct. 21, 2016.

Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

Alexandra H. Deal, Boston, for the defendant.

Present: GREEN, WOLOHOJIAN, & MASSING, JJ.

MASSING, J.

The Commonwealth appeals from the allowance of the defendant's motion to suppress evidence seized from an apartment in the execution of a search warrant. The motion judge determined that the affidavit supporting the search warrant application, which relied in part on information provided by a confidential informant, did not satisfy the probable cause standard under the Aguilar –Spinelli test.² Reviewing the affidavit in its entirety, we conclude that the application did establish probable cause to search for heroin in the subject apartment. Accordingly, we reverse the order allowing the motion to suppress.

Background. The defendant was indicted on charges of trafficking in 200 grams or more of heroin, in violation of G.L. c. 94C, § 32E(c )(4), and of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense heroin, G.L. c. 94C, § 32(a ). It appears³ that New Bedford police officers discovered a substantial quantity of heroin when they executed the warrant permitting them to search “172 Hathaway Street, apartment 3 east” for controlled substances, “to include specifically [h]eroin,” as well as instrumentalities used in, records of, and proceeds from the sale of controlled substances.

The affidavit in support of the search warrant application, prepared by Lorenzo Gonzalez, III, a New Bedford police officer with four years of experience, assigned as a detective in a unit specializing in narcotics investigations, states that the New Bedford police began an investigation of the defendant when they received a confidential informant's tip that “a male by the name of Luis Reyes,⁴ with a date of birth of September 30, 1969 ... was selling heroin out ... of the aforementioned address.” The informant further stated that the defendant used the names Javier Rios, date of birth February 13, 1969, and Salvador Pimental. Gonzalez located records for Luis Reyes and Javier Rios with the birth dates provided by the informant in the New Bedford police database, as well as an expired Massachusetts driver's license for Javier Rios, with the same date of birth, in the Massachusetts Registry of Motor Vehicles (RMV) database. Gonzalez compared the photographs associated with these records and determined that they all depicted the same person.⁵

During the week before Gonzalez applied for the search warrant, the informant told Gonzalez that the defendant “would be conducting a delivery of heroin from the residence of 172 Hathaway Street,” and that he “would be operating a black Chevrolet Malibu bearing Rhode Island registration plates.” The police conducted surveillance of the residence and observed the car described by the informant, which was registered to a rental company. A short time later, they observed the defendant and another man get into this car, drive to another residence in New Bedford, stop for a short time, then drive back “in the direction of 172 Hathaway Street.”⁶

Within seventy-two hours of applying for the search warrant, the police supervised the informant in a controlled buy from the defendant. Gonzalez searched the informant and determined that the informant “was not in possession of any illegal currency or contraband.” The police gave the informant an unspecified amount of money. Under surveillance, the informant traveled to a prearranged location where he met with the defendant. After the transaction, the officers followed the defendant to 172 Hathaway Street. Gonzalez, meanwhile, followed the informant to another location where the informant gave Gonzalez an unspecified amount of heroin purchased from the defendant.

On September 12, 2012, the informant told Gonzalez that the defendant “would be conducting a delivery of heroin at approximately 8:00 P.M. ” The police took up surveillance of 172 Hathaway Street and, at the designated hour, saw the defendant and another man “exit the residence and get into a silver vehicle,” a Dodge Avenger with Rhode Island license plates. The defendant drove⁷ the silver car to a Getty gasoline station on Mount Pleasant Street in New Bedford and parked on the side of the parking lot away from the gas pumps and mini-mart.

A short time later, a black Kia pulled into the gas station and parked beside the silver car. Detective Sergeant Mark Blouin, one of the surveillance officers, observed a hand-to-hand transaction between the driver of the Kia and “the occupants of the silver Dodge which occurred through the passenger side window.” The officers followed both cars after they left the gas station. The officers stopped the Kia, which was driven by Edward Combs, and searched it. Inside they discovered “an amount of heroin which weighed approximately 11.9 grams.” During police questioning, when asked whether he had gotten “ ‘a good deal’ from the male whom Combs had just met up with,” Combs stated the he had just purchased “a full stick, or ten grams” of heroin for $700. The New Bedford officers, assisted by members of the State police, stopped the silver Dodge on Route 24, “just north of the on-ramp following exit 17A on Route 24 North.” Three men occupied the car: the defendant, sitting in the driver's seat, a man in the front passenger's seat, and a man in the back seat. The police searched the men and found “multiple cellular phones and a large sum of monies.” The defendant had $1,473 in cash: $973 loose in his pocket and $500 in his wallet. The front seat passenger had $714 in cash: $410 in his pocket and $304 in his wallet.

Fearing that word of the arrests would reach other residents of the apartment, who might destroy any drugs secreted there, New Bedford officers secured the premises while Gonzalez sought a search warrant. Based on the information recited above, a clerk-magistrate issued the warrant to search apartment 3 east of 172 Hathaway Street.

Discussion. Probable cause “nexus.” “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. Escalera, 462 Mass. 636, 638, 970 N.E.2d 319 (2012) (quotation omitted). We must determine independently whether the affidavit supporting the search warrant provides “a substantial basis for concluding that any of the articles described in the warrant are probably in the place to be searched.” Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). “Strong reason to suspect is not adequate.” Ibid. “In dealing with probable cause, however, as the very name implies, 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.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The motion judge began and ended his review of the search warrant application by applying the Aguilar –Spinelli test to the information that the confidential informant provided. We start instead by reviewing the information obtained independently by police investigation to determine whether the affidavit established a “nexus” between the defendant's suspected drug dealing and the target apartment. See Commonwealth v. O'Day, 440 Mass. 296, 302, 798 N.E.2d 275 (2003) ; Escalera, 462 Mass. at 642–643, 970 N.E.2d 319 ; Commonwealth v. Tapia, 463 Mass. 721, 725–726, 978 N.E.2d 534 (2012).

1. Direct police observations. The police made three observations that connected the defendant to the apartment, two involving confirmed drug transactions. The first time, the defendant and another man left the building and returned there after driving to another location in New Bedford.⁸ Next, the police observed the defendant returning to the apartment after he participated in the controlled buy, although the affidavit does not establish that he started out from the apartment to conduct this transaction. See Escalera, 462 Mass. at 645, 970 N.E.2d 319 (with respect to presence of drugs at defendant's home, “the suspect's location immediately prior to the sale is of greater significance to the nexus determination than are his activities after the sale”). Finally, the police observed the defendant and another man leave the apartment immediately before the sale of ten grams of heroin to Combs for $700.

The police investigation, as described in the affidavit, provided no other information to tie the defendant to the apartment. The New Bedford police and RMV data bases did not connect the defendant to 172 Hathaway Street. The police did not observe him spend the night. Contrast Escalera, 462 Mass. at 639, 970 N.E.2d 319. Although the utility bills were in Cruz's name, only the informant's word established that the defendant lived with Cruz and that Cruz was the defendant's son. Apart from one observation of the defendant leaving the apartment to sell heroin and one observation of him entering the apartment after a controlled buy, “the affidavit provides no details about the amount and quantity of drugs the defendant had sold in the past, or any other facts tending to demonstrate that the defendant sold drugs from his apartment or that he kept his supply of drugs there.” Commonwealth v. Pina, 453 Mass. 438, 442, 902 N.E.2d 917 (2009).

However, we cannot and need not decide whether the affidavit demonstrated probable cause by counting the number of drug transactions the defendant originated from or concluded at the apartment. “No bright-line rule can establish whether there is a nexus between suspected drug dealing and a defendant's home.” Escalera, 462 Mass. at 643, 970 N.E.2d 319. Indeed, “[a] single observation of a suspect leaving his home for a drug deal may ......