Opinion
21-P-677
04-06-2022
COMMONWEALTH v. Jose Benjamin CAMILO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Having obtained leave from a single justice of the Supreme Judicial Court, the Commonwealth appeals from the interlocutory order of a Superior Court judge allowing in part the defendant's motion to suppress. We reverse.
Based on the information contained within the search warrant affidavit prepared by Watertown Police Detective Mark Lewis, which described eight controlled buys conducted over a three-month period, the motion judge concluded "that there was ample probable cause to believe that [the defendant] was engaged in drug dealing, and that he used the three vehicles that the police proposed to search as his transportation to meetings he arranged with buyers." The judge also determined that there was probable cause to believe that evidence of drug dealing would be found on the defendant's cell phone; therefore, the officers’ search of the defendant's rented Nissan Rogue for the phone was valid, and the judge denied the motion to suppress with respect to everything obtained from the search of the vehicle (including cell phones and nearly $4,000 cash). However, the judge held that Lewis's affidavit did not establish a sufficient nexus between the defendant's drug dealing and his person or his vehicles to justify a search for drugs. [Because the phones were in plain view on the seat of the car, and the police could have readily identified the target phone by dialing its number before searching the defendant, the judge reasoned that the police could not properly search the defendant's person for a cell phone. Accordingly, the judge suppressed all evidence obtained from the search of the defendant's person (cocaine, fentanyl, and $216 cash).
As the defendant does not challenge any of the judge's rulings, the only question raised in the Commonwealth's appeal is whether the warrant application established probable cause to believe that cocaine or evidence of drug dealing might be found on the defendant's person. This is a legal question that we review de novo. See Commonwealth v. Gosselin, 486 Mass. 256, 265 (2020). "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. Perez, 90 Mass. App. Ct. 548, 551 (2016), quoting Commonwealth v. Upton, 394 Mass. 363, 370 (1985).
This case is not meaningfully distinguishable from Commonwealth v. Defrancesco, 99 Mass. App. Ct. 208 (2021), in which this court reversed an order allowing a motion to suppress. In Defrancesco, the search warrant affidavit recounted that the police conducted three controlled buys using a confidential informant who knew the defendant as "J." Id. at 209-211. For each transaction, the confidential informant telephoned "J," who directed the informant to a meeting location. Id. On each occasion, "J" drove to the location and sold the confidential informant cocaine either inside or near the vehicle in which the defendant arrived. Id. For the last two transactions, "J" drove a Nissan Rogue. Id. at 210-211.
Defrancesco was issued after the judge decided the motion to suppress and denied the Commonwealth's first motion for reconsideration. When the Commonwealth, in its second motion for reconsideration, alerted the judge to the issuance of the Defrancesco decision, the judge concluded "that the police investigation in [Defrancesco ] yielded more evidence of nexus between Defrancesco's narcotics dealing and his motor vehicle than existed in this case."
Only two facts distinguish Defrancesco from the present case, and neither helps the defendant. First, the police conducted three controlled buys in Defrancesco, compared to the eight conducted here. Second, after the first controlled buy in Defrancesco, the police identified where the defendant lived, and for the next two transactions they watched as he left his house and drove to complete the sale. Id. On this basis, the motion judge in Defrancesco determined that the search warrant affidavit provided probable cause to believe that drugs and related evidence would be found "exclusively in the defendant's home." Id. at 213. This court rejected that conclusion:
"Probable cause does not require proof that it is more likely than not that evidence would be found in the Rogue; rather, it requires a quantum of proof from which the magistrate can conclude, applying common sense and reasonable inferences, that evidence is reasonably likely to be found in the Rogue.... Thus a search warrant affidavit may establish probable cause that evidence could be found in more than one location.... That is particularly true where the evidence sought is easily dispersed, like drugs."
(Emphasis added; quotation and citations omitted.) Id.
Here, Lewis's affidavit, "interpreted ‘in a commonsense fashion’ and ‘read as a whole,’ rather than ‘parsed, severed, and subjected to hypercritical analysis,’ " id. at 211, quoting Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 481 (2020), established that the defendant was an active drug dealer with cocaine readily available for sale upon the placement of a phone call or text message. It can readily be inferred that to complete these sales, if the defendant did not already have cocaine with him or stored in whichever of the three vehicles he was using that day, he must have obtained it somewhere and transported it -- necessarily on his person -- to whichever vehicle he was using. He then must have stored the drugs somewhere -- either in the car or on his person -- until he arrived at the predetermined site and completed the sale. Based on the depiction of the defendant's day-to-day activities that emerged, Lewis's affidavit established not only a nexus between the defendant's drug dealing activities and the vehicles he used, see Defrancesco, supra at 212-213, but also a nexus between drugs, evidence of drug dealing, and the defendant's person. See Commonwealth v. Suggs, 100 Mass. App. Ct. 102, 107-108 (2021).
As in Defrancesco, the nexus between the vehicles the defendant used and drug dealing activity described in Lewis's affidavit was more explicit, extensive, and current than in Commonwealth v. Wade, 64 Mass. App. Ct. 648 (2005).
So much of the order as suppressed evidence obtained from the search of the defendant's person is reversed. A new order shall enter denying the defendant's motion to suppress.
So ordered.
Reversed