Opinion
11-P-922
04-05-2012
COMMONWEALTH v. DANIEL BROWN (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of the defendants' motions to suppress items recovered from their residence pursuant to a search warrant. The Commonwealth claims there was probable cause to search the residence and that the judge erred by not finding a sufficient nexus between the defendant's drug dealing activities and the residence. We agree and reverse.
Our reference to the defendant in the singular is to Daniel Brown.
'The central inquiry is whether the affidavit accompanying the search warrant sets forth probable cause to believe that the drugs or related evidence from the drug delivery service are likely to be found at the defendants' residence.' Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 105 (2007). Police Officer Flaherty's affidavit 'must [have] contain[ed] enough 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, cert. denied, 464 U.S. 860 (1983). The affidavit supporting the warrant must enable reasonable inferences to be drawn, providing a sufficient nexus between the drug selling activity and the residence. Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009).
Despite the defendant's reliance on Commonwealth v. Pina, supra, these circumstances are more akin to those in Commonwealth v. Colon, 80 Mass. App. Ct. 162 (2011). In Pina, the defendant was observed only once leaving his house to participate in a controlled buy. Pina, supra at 442. Without more, the Supreme Judicial Court held there was not a sufficient nexus between drug dealing activities and the defendant's residence. Ibid. Here, there were three controlled buys where the officers observed the defendant returning directly to his residence after each buy. During two of the buys, the defendant was observed leaving his residence and going directly to the meeting location previously agreed upon with the confidential informant. In Colon, supra at 167, the location searched was 'the point of departure for two of the controlled buys, and the point of return for three buys,' almost identical to the facts presented here. Those circumstances, we held, provided a sufficient nexus. Id. at 168. As in Colon, here, the warrant was supported by probable cause and there existed a sufficient nexus between the defendant's drug activities and his residence.
Here also, after seeing the defendant return to the residence in question, the search warrant affiant stated that he located two Boston police department incident reports, one in which the defendant was listed as a suspect with an address of the residence in question and one in which the defendant was arrested at the address of the residence in question. Furthermore, the affiant used two different confidential informants, including one who had previously 'provided [the police] with information and performed controlled purchases of drugs which have led to the issuance and execution of numerous search warrants, the seizures of controlled substances and U.S. currency, as well as the arrest and conviction of those charged with violations of the drug laws.'
Orders allowing motions to suppress reversed.
By the Court (Mills, Meade & Rubin, JJ.),