Opinion
No. 2010-0718.
August 22, 2011, September 22, 2011.
MEMORANDUM OF DECISION AND ORDER ON MOTION TO SUPPRESS
A Norfolk County grand jury returned indictments against the defendant, Wilfredo Duran, charging him with trafficking in heroin and illegal possession of a firearm without an identification card. The case is before the court on the defendant's Motion to Suppress Evidence obtained upon the execution of search warrants authorizing the search of 1017 South Franklin Street in Holbrook (1017 Franklin), 30 Dale Road in Holbrook (30 Dale), and a certain white Nissan Maxima (the Maxima) for heroin, money, and drug related paraphernalia. The warrants were executed on April 8, 2010. On that date heroin, cash, and a cell phone were seized from the defendant's person upon his arrest. A search of 1017 Franklin resulted in the seizure of a larger quantity of heroin, over $12,000 of United States currency, and various drug related paraphernalia. A search of 30 Dale resulted in the seizure of a quantity of marijuana and slightly more that $1,000 of United States currency. The defendant's motion seeks suppression of the evidence seized from 1017 Franklin and 30 Dale, as well as the evidence taken from his person.
The grounds for the defendant's argument that evidence seized from his person must be suppressed were not clear in his supporting memorandum. At oral argument, his counsel suggested that the search of defendant's person was associated with the execution of a putatively defective search warrant. It is clear, however, that there was probable cause to arrest the defendant for illegally selling narcotics, and, therefore, that he could be searched for evidence of that crime upon his arrest. The motion to suppress evidence seized from the defendant's person is denied because that search need not rest on a search warrant. It will not be addressed in the balance of this memorandum of decision.
The application for the search warrants was supported by the affidavit of Massachusetts State Trooper Robert E. Dubois (the Affidavit and Dubois, respectively). The defendant does not argue that the Affidavit does not adequately establish that there was probable cause to believe that he was engaged in the sale of heroin. Rather, the question presented by his motion is whether the Affidavit establishes the requisite nexus between 1017 Franklin and 30 Dale and the defendant's illegal drug operations to support a warrant for their search. For the reasons that follow, the motion is ALLOWED, in part, and DENIED, in part.
RELEVANT FACTS
This Memorandum and Order incorporates by reference the Affidavit. The facts relevant to the nexus issue are as follows.
Dubois had been a state trooper for approximately ten years at the time he submitted the Affidavit and had substantial training and experience in the investigation of narcotics distribution and the arrest of drug dealers. In January 2010, a confidential informant (CI), whose identity was known to Dubois, but who was not identified in the Affidavit because of concerns for his safety, told Dubois that he had been purchasing heroin from an individual known to him as Carlito for more than three months. Dubois knew that CI was a heroin user and would be familiar with the way heroin was packaged and sold on the street. CI described Carlito as a medium skinned, Hispanic male, 20 to 23 years old, five feet four to five feet five inches in height, with short, dark hair and a skinny build. CI provided Dubois with the cell phone numbers that he used to contact Carlito and explained that he would meet Carlito at 690 North Montello Street in Brockton or at public locations in Brockton, Holbrook or Taunton, including a neighborhood in Holbrook off South Street near a lake. CI also described the cars that Carlito drove, which included a red Ford Taurus and a white Nissan Maxima.
Masculine pronouns are used with respect to CI in this memorandum of decision for simplicity. The Affidavit does not reveal CI's gender.
Dubois and another trooper conducted surveillance of 690 North Montello and observed a red Tauros parked at that location. They followed the Tauros and observed the operator to be a male who matched the description of Carlito. The driver eventually parked outside 30 Dale and entered that residence.
A registry search revealed that the defendant Wilfredo Duran listed 30 Dale as his residence. His registry photograph appeared to be that of the driver of the Tauros. A copy of the photograph was shown to CI who stated that it was a photograph of Carlito. The Tauros was not, however, registered to the defendant. A search of Board of Probation (BOP) records revealed that a Wilfred Duran had a single arraignment in the Brockton District Court, although the BOP listed a different address for him. The physical description of Duran in the BOP matched that of the person observed in the Tauros and described by CI. The BOP listed Duran's mother as having the first name Mildred.
On January 18, 2010, a trooper observed the defendant as he exited 30 Dale and got into the Maxima. A registry search disclosed that the Maxima was registered to Mildred Rodriguez who lived at 30 Dale. The police reasonably concluded that Mildred was the defendant's mother.
Beginning on January 18, 2010, CI made a series of five controlled buys of heroin from the defendant. Each of these controlled buys was conducted using the standard procedures for such transactions: CI was searched to be certain that he had no narcotics or money on him; he was given money to purchase heroin from the defendant; he was observed as he called the defendant, traveled to an arranged meeting place, met the defendant, and traveled to a place where he would again meet with the troopers; and the substance which CI reported he had just purchased from the defendant was recovered and field tested positive for heroin. Because in this case the defendant's motion turns on the question of whether the Affidavit establishes probable cause to believe that evidence of the defendant's alleged illegal narcotics sales would be found at 1017 Franklin and 30 Dale, the court will focus on the relationship between the controlled buys and those locations.
The first controlled buy occurred in Brockton. Police observed the defendant arrive at the meet location in the Maxima, interact with CI, and then travel to a multi-family dwelling at 69 Washington Street in Taunton, which the police learned was then the defendant's residence. The second took place on January 21, 2010. Police observed the defendant depart 69 Washington in the Maxima after receiving a call from CI and drive directly to the meet location in Brockton. After the buy, CI drove directly to 30 Dale.
During approximately the first two weeks of February, the police observed the Maxima parked in front of 1017 Franklin, and on February 19, 2010, they learned from the landlord of that building that the defendant had moved to that address. On February 23, 2010, CI engaged in a third controlled buy. The defendant was observed as he left 1017 Franklin and traveled directly to the meet location in Holbrook where he met briefly with CI. On March 9, 2010, CI engaged in the fourth controlled buy and again the defendant was observed to leave 1017 Franklin and travel directly to the meet location, again in Holbrook. After selling heroin to CI, the defendant drove directly to 30 Dale. The fifth and final controlled buy occurred on March 28, 2010. On this occasion, the defendant was observed to exit his 1017 Franklin address and drive to 30 Dale. While at 30 Dale he received the call from CI. The defendant then traveled directly from 30 Dale to a meet location in Holbrook where he sold heroin to CI.
There is other evidence, in addition to the controlled buys, linking the defendant's illegal narcotics distribution activities to 1017 Franklin. On February 22, 2010, police observed him exit that residence and drive to a stop sign, where he paused for an extended period until a white Cadillac pulled-up behind the Maxima. The Cadillac then proceeded to follow the Maxima as it drove into a "condensed neighborhood." At that point, the police discontinued surveillance because they believed that following the cars into this neighborhood would jeopardize their investigation. Soon thereafter, however, the police observed the Cadillac and Maxima to exit this neighborhood, one behind the other, and then drive in opposite directions. Based on his experience, Dubois concluded that the defendant had just engaged in a hand-to-hand drug transaction with the driver of the Cadillac.
On April 6, 2010, the police followed the defendant as he exited 1017 Franklin and drove his Maxima in a circuitous manner to a Wal-Mart parking lot in Avon. There the Maxima looped through the lot and a Toyota began to follow it. The two cars left the lot and soon thereafter the Toyota pulled along side the Maxima and the operators exchanged something. Again, Dubois concluded that a narcotics transaction had just occurred.
Based on foregoing and other information, Dubois applied for and was issued the warrants that are the subject of this motion on April 8, 2010.
The Affidavit describes certain other acts that link the defendant to alleged illegal drug transactions, but do not link him to 69 Washington, 1017 Franklin, or 30 Dale.
DISCUSSION
To establish probable cause for a search warrant, an affidavit must contain sufficient information for an issuing magistrate to determine "that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues."Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). "The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that the evidence connected to the crime will be found on the specified premises."Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). In considering the sufficiency of a search warrant affidavit, the court considers the facts contained on the face of the affidavit (the "four corners" of the document) and makes reasonable inferences based on such facts. Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995) ("[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the `four corners of the affidavit.'") In the present case, the defendant argues that the Affidavit does not establish the necessary connection between the defendant's heroin distribution activities and either 1017 Franklin or 30 Dale to support a warrant for their search.
In support of his Motion to Suppress, the defendant relies primarily on the Supreme Judicial Court's ("SJC") decision inCommonwealth v. Pina, 453 Mass. 438 (2009). InPina, after a confidential informant told the police that he had purchased drugs from Pina, they undertook a single controlled buy.Id. at 439. The informant phoned Pina and made arrangements to engage in a drug transaction. Id. After receiving the call, police observed Pina leave his apartment and proceed directly to the prearranged meet location. Id. Three days later, a search warrant issued based solely on these observations. Id. at 440. The SJC noted that "in drug cases such as the present one, the affidavit accompanying the 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." Id. See O'Day, 440 Mass. at 304 (noting that information contained in affidavit together with reasonable inferences must establish "a sufficient nexus between the defendant's drug-selling activity and his residence to establish probable cause to search the residence").
The Pina majority concluded that a confidential informant's tip coupled with a single observation of Pina leaving his home before conducting a drug transaction was not enough to establish the necessary nexus between Pina's drug selling activity and his residence to support a warrant to search his residence. Pina, 453 Mass. at 442 ("The only particularized information contained in the affidavit connecting the defendant's observed drug activity with the apartment in which he lived was a single observation of the defendant driving from the apartment to a location where he sold an unspecified quantity of cocaine to the informant.").
The Pina decision cited Commonwealth v. Smith, 57 Mass. App. Ct. 907 (2003) as an example of another case in which the affidavit supporting a search warrant was insufficient to establish nexus with the defendant's residence. In Smith, a confidential informant participated in a controlled buy of narcotics after which defendant was observed returning to his residence. Id. at 907. On two other occasions, police conducted controlled buys with defendant using an undercover police officer. Id. On one of these occasions, defendant was observed leaving his residence and proceeding directly to the meet location. Id. at 908. The court held that the search warrant was not supported by probable cause. Id. The court explained that, "[t]he `fundamental flaw' in the affidavit before us is that it does not explain why there was probable cause to believe that drugs or related evidence would be found at [defendant's residence] other than it being the residence of the defendant." Id Pina may be contrasted with the SJC's earlier decision,Commonwealth v. O'Day. In O'Day, police officers were alerted to defendant's drug activity by a confidential informant's tip. 440 Mass. at 298. They observed activity consistent with the drug trade both at defendant's residence and another location familiar to the confidential informant as the location where the defendant regularly sold drugs. Id. at 302. Police observed the confidential informant engage in controlled buys of narcotics with defendant.Id. at 299-300. Police also observed people entering defendant's residence for short periods of time consistent with the drug trade, and the defendant engaging in behavior consistent with the drug trade with individuals other than the confidential informant outside of his residence. Id. The court concluded that:
Here, the observations made on two occasions during surveillance of the defendant's home, plus surveillance tracking him proceeding directly from home to the bar where he immediately began dealing drugs, combined with observations of the defendant's going out to the truck as part of his sales activity, provided the requisite nexus between the residence and the drug dealing.
Id. at 304-305.
Three recent Appeals Court cases address factual situations in which the court found sufficient nexus when the defendant traveled from his residence to a drug transaction, and there were additional facts linking the residence to drug distribution activity.
In Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290 (2009), the police observed the defendant drive from his residence to the drug sale location only once. However, a confidential informant reported that on two occasions in which he had purchased cocaine from the defendant, he observed that the defendant had additional quantities of cocaine packaged for sale on his person. The court reasoned that inventory of this quantity requires a secure place for storage and drug paraphernalia and records of drug transactions — all of which would more likely be hidden in a residence than in a car.
Similarly, in Commonwealth v. Young, 77 Mass. App Ct. 381 (2010), the Appeals Court held that a search warrant was supported by probable cause. 77 Mass. App. Ct. at 386-387. There, too, the affidavit stated that the police became aware of the defendant's drug distribution through a confidential informant. Police arranged for the confidential informant to make a controlled buy. They observed the defendant leave his apartment, walk directly to the meet location, conduct the transaction with the confidential informant, and return on foot directly to his residence. Id. at 384. Although the search warrant application was based on this single controlled buy and the confidential informant's information regarding previous transactions with the defendant, the Appeals Court found the fact that defendant walked to and from the meet location conclusive. Id. at 386-387. The court noted that, "[i]t is difficult to discern . . . where else other than his apartment the drugs that the drug dealer peddled could have been stored." Id. at 382.
In Commonwealth v. Escalara, 79 Mass. App. Ct. 262 (2011), the Appeals Court found sufficient nexus between the defendant's sale of narcotics and his residence to support a warrant for the search of that residence where the defendant and a confidential informant engaged in four controlled buys and the defendant was observed to leave his residence and travel directly to only one controlled buy, but to return to his residence directly after all four controlled buys. Additionally, however, on two other occasions, the police watched the defendant leave his residence and then engage in conduct that police reasonably concluded were hand-to-hand drug transactions. The court reasoned that "the defendant was seen leaving and returning to his residence multiple times to what were either known drug sales or to encounters that could readily be inferred to be drug transactions. A pattern of activity such as this, in our view, provides sufficient nexus to a dealer's residence to satisfy probable cause to search it."Id. at 267.
In the instant case, the first two controlled buys suggest some nexus between the defendant's drug sales and 69 Washington, which was then his residence. On February 19, 2010, the police were able to confirm that the defendant had moved to 1017 Franklin in Holbrook. Thereafter, each of the next three controlled buys were linked to that address. With respect to the third and fourth controlled buys, the defendant was observed to leave 1017 Franklin right after receiving calls from CI and travel directly to the meet location. Then, on March 28, 2010, the police observed the defendant drive to 30 Dale. Shortly thereafter, he received CI's call and drove directly to the meet location. The defendant had heroin available for sale each time that CI called to arrange a purchase. Additionally, on two other occasions, the last of which was April 6, 2010, two days before the search warrants issued, the police had the defendant under surveillance when he exited 1017 Franklin, got into the Maxima, and then engaged in actions that they could reasonably conclude included hand-to-hand drug sales. Clearly, there was probable cause to believe that the defendant had to have a place in which to store heroin, as well as cash and other paraphernalia necessary for the street sale of drugs.
On five occasions, the police followed the defendant as he left his residence and traveled directly to a drug sale: one controlled buy associated with 69 Washington; two controlled buys associated with 1017 Franklin; and two observations of hand-to-hand drug transactions after the defendant departed 1017 Franklin. Moreover, on the last controlled buy the defendant had recently been at 1017 Franklin, although he received the call from CI while at 30 Dale. Given this information, it is apparent that the most likely place for the defendant to store his drug inventory and paraphernalia at the time the warrants issued was his residence, and, therefore, the Affidavit supported the magistrate's conclusion that there was probable cause to believe that evidence of the defendant's illegal heroin sales could be found at 1017 Franklin.
That nexus, however, does not exist with respect to 30 Dale. The Affidavit described a number of instances in which the defendant was seen at 30 Dale. However, the Affidavit also establishes that the defendant's mother resided at that address. That fact gives rise to two important considerations: First, the defendant had reason to be at that location for purposes other than his illicit drug trade; and second, defendant's mother's constitutionally protected right to be secure in her home from unreasonable searches is implicated — there is no evidence in the Affidavit that she was involved with the defendant in his illegal activities.
The investigation described in the Affidavit began in January and ran until April 6th. During that period, the Affidavit references only three occasions in which 30 Dale could be said to have some nexus to the defendant's illicit conduct. Twice the defendant drove from a drug sale to 30 Dale and, on one occasion, he was at 30 Dale when he received the call from CI and drove from there to the meet location. However, on that occasion, he had also been at 1017 Franklin just prior to receiving the call from CI. While travel to a location after a drug sale may under some circumstances suggest that evidence of the crime may be found there, it is not evidence that inventory or packaging material is kept at that location, especially when in almost every instance the defendant is elsewhere when he departs to sell drugs. Moreover, 30 Dale is not a residence exclusively used by the defendant or his co-conspirators. His mother resides there. The court concludes that the Affidavit does not establish probable cause to believe that evidence of the defendant's criminal conduct was likely to be found at 30 Dale.
ORDER
For the foregoing reasons, the defendant's motion to suppress is ALLOWED, in part, and DENIED, in part. It is denied with respect to evidence seized from the defendant's person and 1017 Franklin; it is allowed with respect to evidence seized from 30 Dale.