United States v. Chalas

478 F.Supp.3d 143

UNITED STATES of America

v.Kelvin CHALAS

CRIMINAL ACTION NO. 17-10330-RGS

United States District Court, D. Massachusetts.

Filed August 4, 2020

Eric S. Rosen, Alathea E. Porter, Philip C. Cheng, United States Attorney's Office, Boston, MA, for United States of America.

Gordon W. Spencer, Law Office of Gordon W. Spencer, Framingham, MA, James Michael Caramanica, Law Office of James M. Caramanica, Attleboro, MA, for Kelvin Chalas.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

STEARNS, D.J.

Defendant Kelvin Chalas is charged in a two-count indictment with conspiracy to distribute cocaine and fentanyl and possession with intent to distribute fentanyl, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841. He seeks now to suppress evidence seized from his home, Apartment 8, 10 Abbotsford Street, in Roxbury, Massachusetts. The search was conducted pursuant to a warrant issued by a United States Magistrate Judge. Chalas's principal argument is that the warrant issued on stale information and failed to establish probable cause that drugs would be found in his home at the time the warrant was executed. After two hearings on the motion, for the reasons to be stated, suppression of the evidence seized from the home will be allowed.¹ A second motion challenges the validity of Title III wiretap warrants issued to intercept the communications of two brothers, Kevin Fraga and Alex Fraga, alleged Cape Cod drug dealers, and a third man, James Ramirez, alleged to be their principal supplier. Chalas, using the moniker "Keco," was caught on one conversation during the seven-week duration of the wiretaps. For reasons that need only briefly be explained, the motion to suppress the wiretap evidence will be denied.

LEGAL FRAMEWORK

In the law of search and seizure there is a strong preference for the "informed and deliberate determinations of magistrates." United States v. Lefkowitz , 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932), overruled on other grounds by Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In recognition of this preference, courts reviewing warrants "will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ " Aguilar v. Texas , 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). A search warrant may issue on a showing of probable cause — something more than a suspicion, but something significantly less than proof beyond a reasonable doubt. See Safford Unified Sch. Dist. No. 1 v. Redding , 557 U.S. 364, 371, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (probable cause is a fluid concept taking its substantive content from the particular circumstances – "the best that can be said generally about the required knowledge component of probable cause ... is that it raise a ‘fair probability,’ ... or a ‘substantial chance,’ ... of discovering evidence of criminal activity").² With respect to the search itself, there is a two-fold dimension to the showing of probable cause. First, a showing must be made that criminal activity is underfoot, United States v. Vigeant , 176 F.3d 565, 569 (1st Cir. 1999), and second, that "there is a fair probability that contraband or evidence of a crime will be in a particular place" at the time the warrant is executed. Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In reviewing the validity of a search warrant, a court is confined to the "four corners" of the affidavit – extrinsic evidence is not considered. Vigeant , 176 F.3d at 569. When the government has conducted a search or seizure pursuant to a warrant, the defendant has the burden of showing that the warrant is invalid – proof is by a preponderance of the evidence. United States v. Matlock , 415 U.S. 164, 177-178 n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), citing Lego v. Twomey , 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

FACTUAL BACKGROUND

The warrant was issued on August 22, 2017, and executed the same day. The warrant application was supported by an affidavit submitted by Drug Enforcement Administration Special Agent Daniel Golia. In its prefatory paragraphs, the affidavit follows a familiar pattern, setting out Agent Golia's training and experience, followed by a description of the typical behaviors and practices of persons engaged in drug trafficking and the types of incriminating evidence that can be expected to be found in their possession.

Turning to the investigation at hand, Agent Golia explained that the targets of the investigation were the two Fraga brothers and Ramirez. All three men had been under telephone surveillance pursuant to separate but related Title III warrants. Agent Golia related that the Fraga brothers had been arrested on August 16, 2017, while in possession of large quantities of heroin, fentanyl, and cocaine. Ramirez, however, remained at large and was still under telephone surveillance.

Chalas makes his first appearance as "Keco" in paragraph 25(c) of the affidavit in connection with a request to search his Abbotsford Street apartment. It appears from the affidavit that the agents were unsure of Keco's true identity but believed that he was most likely an individual known as Kevin Nunez, also known as Jose Sollivan. The paragraph then relates that prior to delivering drugs to the Fragas on July 7-8, 2017, "Ramirez mixed and packaged these narcotics at 10 Abbotsford." Agent Golia then explained how it had been determined that Kevin Nunez occupied Apartment 9 at 10 Abbotsford Street and noted that Nunez had a lengthy criminal history "which includes convictions for felony drug trafficking."

In the following paragraphs, the affidavit details the extensive evidence of drug dealing gathered by the investigators against Ramirez and the Fragas. Keco makes his next appearance in paragraph 46 of the affidavit when, on the evening of July 7, 2017, Ramirez called a telephone number associated with Keco. Referencing "two white ones," Ramirez told Keco that he would "stop by with them in the morning," and that "[w]e will do it tomorrow morning." Golia Aff. ¶ 46 [Dkt #105-1] Based on this conversation, Agent Golia believed that "Ramirez and Keco work together to distribute narcotics" and that they "possibly share or use the same drug stash house." Id. Ramirez called Keco early the next day to tell him that "I am almost there." Id. at 47. Presumably from call site location information (CSLI), investigators determined that Ramirez had traveled to the vicinity of Abbotsford Street. A few minutes later, Ramirez placed a call to one of the Fraga brothers. Id. ¶ 48. Before hanging up, Ramirez was heard complaining that the pills would not fit in the hide in his jeep. A voice, believed to be Keco's, is then heard suggesting that he "[s]plit it in two." Id.

Ramirez (who had left Keco's apartment after dropping off the drugs), called at 9:42 a.m. to discuss adding a "cut" to dilute one of the two kilograms of the unspecified narcotic that he and Keco were mixing. Id. ¶ 49. Ramirez then returned to Abbotsford Street where he stayed for 90 minutes before leaving to meet one of the Fraga brothers on Cape Cod. Id. ¶ 50. "From these factors," Agent Golia "believe[d] that Keco and Ramirez mixed and packaged narcotics at 10 Abbotsford Street, the home of Keco." Id. ¶ 50. The next substantive mention of Keco is in paragraph 56, and the date is now August 22, 2017. According to the affidavit, Ramirez was in the process of effecting a drug purchase that he had arranged the previous day. On the morning of August 22, Ramirez "tried on multiple times to reach Keco" on his cell, but the calls were never answered. There is no further mention of Keco in the remaining 35 paragraphs of the affidavit, nor is Abbotsford Street mentioned in the concluding paragraphs 86-91 as one of the targeted residences used by Ramirez to conduct drug trafficking.³

DISCUSSION

Police are not required to seek a warrant the moment they have information sufficient to establish probable cause. However, "[i]t is well established that the temporal proximity or remoteness of events observed has a bearing on the validity of a warrant." United States v. Dauphinee, 538 F.2d 1, 5 (1st Cir. 1976) ; see also Rosencranz v. United States , 356 F.2d 310, 315-316 n.3 (1st Cir. 1966). In practical terms, this means that the warrant affidavit must contain information sufficiently fresh to support an inference that the items sought will still be on the targeted premises when the warrant is executed. Sgro v. United States , 287 U.S. 206, 210-211, 53 S.Ct. 138, 77 L.Ed. 260 (1932).

Whether or not information is stale depends on the nature of the property to be seized, the nature of the alleged crime, and the nature of the premises to be searched. Andresen v. State , 24 Md.App. 128, 331 A.2d 78, 105 (1975), aff'd, sub nom. Andresen v. Maryland , 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). "The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock." Id. , 331 A.2d at 106. Certain types of contraband, like child pornography amassed for a pedophile's personal gratification, tend to remain in the hands of their possessors indefinitely. See United States v. Seiver , 692 F.3d 774, 777 (7th Cir. 2012) (seven months); Commonwealth v. Kenney , 449 Mass. 840, 846, 874 N.E.2d 1089 (2007) ("perhaps a lifetime"). Expensive marijuana cultivation equipment installed at a fixed location might reasonably support an ongoing drug operation for two or more years. United States v. Schaefer , 87 F.3d 562, 568 (1st Cir. 1996). A weapons collection is usually carefully curated by its owner. United States v. Batchelder , 824 F.2d 563, 564 (7th Cir. 1987) (illegal silencers properly seized on nine-month-old information). Drugs, on the other hand, are a fungible commodity that is typically quickly consumed or sold. See...