United States v. Norris

312 F.Supp.3d 215

UNITED STATES of America

v.Douglas NORRIS, Defendant.

Criminal Action No. 17–10249–PBS

United States District Court, D. Massachusetts.

Filed June 8, 2018

Robert E. Richardson, United States Attorney's Office MA, Boston, MA, for United States of America.

Mark W. Shea, Shea & LaRocque, Cambridge, MA, for Defendant.

MEMORANDUM AND ORDER

Patti B. Saris, Chief United States District Judge

INTRODUCTION

Defendant Douglas Norris, charged with drug and gun crimes, moves to suppress the fruits of a warrant-authorized search of his Brockton apartment. His motion attacks the search on three primary grounds. First, he argues the search warrant affidavit failed to provide probable cause to believe contraband would be found in the apartment. Second, he contends the search exceeded the scope of the warrant. Third, he argues the affidavit omitted information and included misinformation material to the probable cause determination, and thus he seeks a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For the reasons that follow, the motion (Dkt. No. 53) is DENIED in all respects.

FACTUAL BACKGROUND

The search warrant affidavit at issue in this case was signed by Brockton Police Detective Gary Mercurio, Jr. See generally Dkt. No. 54–1 ("Aff."). At the time he signed the affidavit, Mercurio had been a police officer for 17 years and was a member of the Brockton Police Department's narcotics/vice unit. Aff. 1. In the course of that work, Mercurio attended numerous trainings related to narcotics investigations, and he amassed an array of pertinent investigative experience, including working with informants. Aff. 1–2.

I. Confidential Informant

In June 2017, Det. Mercurio and Det. Graham spoke with a confidential informant ("CI"). Aff. 3. On June 13, the CI told the detectives that someone by the name of "LD" or "Dougie" was distributing cocaine base and powder from a multifamily dwelling at 145 North Warren Avenue, Apt. 2A, in Brockton ("Apt. 2A"). Aff. 3. The CI identified the building to Det. Graham and stated that a number of aggressive pit bulls lived inside. Aff. 3. The CI also provided the phone number of a male resident who sold drugs from the building. Aff. 3. The phone number was assigned to a prepaid cell phone. Aff. 3.

The detectives were already familiar with the residence and believed that a narcotics dealer named Douglas Norris lived there. Aff. 3. In February 2017, the detectives received information from a "confidential source" (apparently different from the CI) that a male named "Dougie" was dealing cocaine base from Apt. 2A. Aff. 3. Also, Det. Graham had purchased cocaine base from Norris in 2014, albeit at a different location. See Aff. 3.

In response to the CI's tip, Det. Graham searched Brockton Police records and located a January 2017 police report regarding a domestic disturbance call from 145 North Warren Avenue, Apt. 2A. Aff. 3. The report identified Douglas Norris as a resident of Apt. 2A. Aff. 3. The report also mentioned loose pit bulls inside the residence. Aff. 3. Additionally, Det. Graham found a November 2016 record indicating that a Nakaitia Brown called Brockton Police for a welfare check on Douglas Norris at Apt. 2A. Aff. 3–4.

Det. Graham then showed the CI a color booking photo of Norris with "long braids." Aff. 4. The CI positively identified Norris as the individual from whom the CI had purchased cocaine. Aff. 4. The CI stated that although Norris had since cut his hair, the CI was "certain" it was the same person. Aff. 4.

The CI told the detectives that he had purchased cocaine numerous times from this individual. Aff. 4. Typically, the CI would order drugs by calling the phone number mentioned above and would then be directed to arrive at Apt. 2A within a specified time frame. Aff. 4. After knocking on an outside door, the man known as "LD" or "Dougie" would bring the CI up to a second-floor apartment, the door to which was marked with "2A." Aff. 4. Inside, "Dougie" would sell the CI cocaine. Aff. 4. The CI described the seller as "a black male, in his late 30's [sic], medium build, with black hair." Aff. 4.

II. Controlled Buys

The CI agreed to make controlled drug buys from Apt. 2A. Aff. 4–5. On June 13, 2017, the detectives met the CI at a prearranged location and checked to make sure the CI was not carrying any drugs or money. Aff. 5. The detectives then gave the CI a sum of money to execute a controlled buy. Aff. 5. The CI called the number described above and placed an order for cocaine base. Aff. 5. The CI traveled to Apt. 2A under the observation of Det. Graham, Det. Mercurio, and a third detective. Aff. 5. They watched the CI knock on the door, which was opened by a "black male." Aff. 5. After about three minutes inside, the detectives saw the CI exit by the same door. Aff. 5.

The CI returned to the prearranged location, still under observation by the three detectives. Aff. 5. The CI told the detectives that "Dougie" had let him inside and led him up to Apt. 2A. Aff. 5. Once inside, the CI exchanged money for what was believed to be cocaine base before leaving the residence. Aff. 5. The CI handed Det. Graham an unspecified amount of what later field-tested positive for cocaine. Aff. 5–6.

Two days later, on June 15, 2017, Det. Mercurio was conducting surveillance on 145 North Warren Avenue. Aff. 6. Around 4 p.m., he saw Norris exit the residence and recognized him from a police photograph. Aff. 6. Norris then entered a gray 2003 Infiniti G35, with Massachusetts license plate number 5YH163, that was parked nearby. Aff. 6. Norris started the car and remained inside for a "short time." Aff. 6. He then exited and went back inside 145 North Warren Avenue. Aff. 6.

The CI made another controlled buy the following day, June 16, 2017. Aff. 6. After repeating the steps described above, the CI knocked on the door to 145 North Warren Avenue and was let inside. Aff. 6. After remaining inside for about two minutes, the CI returned to the prearranged location. Aff. 6–7. The CI provided the detectives with another unspecified quantity of a substance that later field-tested positive for cocaine. Aff. 7.

III. Scope of the Warrant

The search warrant affidavit sought permission to search Apt. 2A for "[a]ll controlled substances," materials related to the production or distribution of controlled substances, and any records (electronic or otherwise) related to such an enterprise. Aff. 8. The affidavit also requested permission to enter Apt. 2A without officers first knocking and announcing their presence. Aff. 7. Det. Mercurio cited three reasons: (1) the presence of "several aggressive pit bulls" inside the residence; (2) Norris's criminal history, which included convictions for narcotics offenses, firearm and ammunition offenses, armed robbery, resisting arrest, assault and battery with a dangerous weapon, and assault and battery; and (3) the potential destruction of evidence. Aff. 7.

IV. Execution of the Warrant

According to a police report by Det. Mercurio, a team of officers executed the search warrant at 5 a.m. on June 20, 2017. Dkt. No. 54–2 ("Rpt."). Officers broke open the outside door to 145 North Warren Avenue using a battering ram and did the same to the door of Apt. 2A. Rpt. 1. Inside, they found four individuals: Norris's girlfriend, Nakaitia Brown; their son, Douglas Norris, Jr.; Jose Lora; and Adris Pimental. Rpt. 1. Norris was not there. Rpt. 1.

Inside the closet of what was believed to be Norris's bedroom, officers located a backpack that contained a Smith & Wesson 9mm pistol loaded with a large-capacity magazine, a plastic bag containing 20 rounds of 9mm ammunition, one round of 45–caliber ammunition, a plastic bag containing 48.2 grams of suspected cocaine base, a plastic bag containing 31.8 grams of suspected cocaine powder, a plastic bag containing 2.5 grams of suspected cocaine powder, and two digital scales. Rpt. 2. Inside the room, officers also found a kilo press, two other digital scales that had white residue on them, cut baggies, a razor blade, and a box of sandwich bags. Rpt. 2. And they found mail addressed to Norris at the target address. Rpt. 2.

In the kitchen, officers located scale-calibration weights, one bag plastic bag containing 12.2 grams of suspected cocaine base, and another plastic bag containing 18.7 grams of suspected cocaine powder. Rpt. 1–2. In a back bedroom, officers located kilo press equipment, an electric money counter, a rifle scope, and a Smith & Wesson magazine. Rpt. 1. In another bedroom, they found $147 and two digital scales. Rpt. 1.

Field tests on each bag of suspected cocaine yielded positive results. Rpt. 2. All of the above items were photographed and placed into the Brockton Police evidence locker. Rpt. 2.

V. Arrest of Defendant

At around 7:50 a.m. that same morning, Det. Brian Donohue observed Norris leave 145 North Warren Avenue and get into the aforementioned gray Infiniti G35. Rpt. 2. Norris drove off. Rpt. 2. After following the vehicle for a short time, police stopped it and placed Norris under arrest. Rpt. 2.

VI. Charges

Norris was charged in this Court by criminal complaint in July 2017, Dkt. No. 1, followed by an initial indictment in August 2017, Dkt. No. 11. In October 2017, a superseding indictment charged Norris with four counts: (1) being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) ; (2) possession of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1) ; (3) possession of cocaine powder with intent to distribute, 21 U.S.C. § 841(a)(1) ; and (4) possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). Dkt. No. 28.

DISCUSSION

Defendant takes a shotgun approach to his attack on the search of Apt. 2A. Primarily, he argues there was no probable cause to believe contraband would be present in the apartment because police relied on dubious information from a confidential source and defective controlled buys. He also argues the affidavit failed...