Opinion
19-P-842
05-11-2020
COMMONWEALTH v. LATASHA DOWNIE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of her motion to suppress evidence seized pursuant to a search warrant, and from the subsequent denial of a motion for reconsideration. On appeal, the defendant argues that the search warrant was not supported by probable cause because the confidential informant (CI) did not meet the requirements of the Aguilar-Spinelli test and that, excised of the information furnished by the CI, the affidavit supporting the warrant application was inadequate to establish the required nexus between the evidence targeted by the warrant and the apartment to be searched. We affirm.
On May 2, 2019, a single justice of the Supreme Judicial Court allowed the defendant's motion to pursue an interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as amended 476 Mass. 1501 (2017).
See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
Discussion. "The facts contained in the affidavit, and the reasonable inferences therefrom, must 'demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched.'" Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), quoting Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986). "Because this is a question of law, 'we review the motion judge's probable cause determination de novo.'" Tapia, supra, quoting Commonwealth v. Long, 454 Mass. 542, 555 (2009).
Probable cause "requires a 'nexus between the items to be seized and the place to be searched.'" Tapia, 463 Mass. at 725, quoting Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). When police seek to search a residence based on suspicion of drug-selling activity, "there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide 'a sufficient nexus between . . . drug-selling activity and [the] residence to establish probable cause to search the residence.'" Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009), quoting Commonwealth v. O'Day, 440 Mass. 296, 304 (2003). Thus, to meet the "nexus" requirement and furnish probable cause, the affidavit "must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).
Though the parties have devoted considerable discussion to the question of the CI's reliability, we need not decide whether the CI met the Aguilar-Spinelli test; even were we to excise the CI's statements from the affidavit, the detectives' observations during their surveillance of the apartment, coupled with their knowledge from prior investigations of the involvement of "Eddie, also known as, Bennie" Johnson in drug distribution activity, furnished the requisite nexus between drug-selling activity and 195 Hickory Street, Apartment C (apartment), to support probable cause.
The affidavit stated that the detectives were familiar with the target of their drug investigation, "Eddie Johnson," also known as "Benny," because he was known to them from past and present investigations for sales of narcotics. On two occasions the detectives observed Johnson exit the apartment and perform what they ultimately believed to be drug transactions, based on their experience and training. See Commonwealth v. Santaliz, 413 Mass. 238, 242 (1992). On February 23, 2018, Johnson left the apartment and got into a vehicle in the west parking lot. He appeared to make a phone call, and minutes later an Acura pulled into the east parking lot. Johnson drove from the west parking lot to the east parking lot and parked. An individual exited the Acura and entered Johnson's vehicle for a short period of time. After leaving the east parking lot, the Acura made two more stops, and engaged in brief meetings with two other individuals on both occasions.
Johnson was also the subject of an officer safety bulletin that, as described in the affidavit, "depict[ed] a picture of Eddie Johnson with the AKA of 'Benny'" and stated that "Benny's Boys," a Springfield-based gang, was moving heroin and crack cocaine from Springfield to Vermont and New Hampshire, using local runners to minimize the exposure of the Springfield operation.
We need not address whether the observations by the police of the encounter between the defendant and the driver, and the driver and others, on these three occasions in February provided probable cause to believe one or more drug transactions had taken place at those times, because when viewed in the context of subsequent events, that is the transaction between Johnson and Anthony Greene on March 30, the detectives' belief was warranted.
On March 30, 2018, Johnson left the apartment, walked to the east parking lot, got into someone else's vehicle parked in the east parking lot, and exchanged an item with the driver of that vehicle. While in the vehicle, both Johnson and the driver motioned and reached toward the center console of the vehicle. After the exchange, Johnson and the driver went on a short "ride to nowhere" before returning to the east parking lot again. Johnson got out of the car and returned to the apartment. The detectives stopped the vehicle and located two small bags of cocaine in the center console and one "large bag of [c]ocaine (approx. 50 grams)" on the person of the driver, whom they identified as Anthony Greene. In addition to these observations, the detectives had performed forty to fifty hours of surveillance on the apartment, and had observed Johnson "exit and enter the apartment numerous times using house keys," supporting the inference that he resided there.
Based on the information in the affidavit, including the familiarity of the police with Johnson as "Benny" of "Benny's Boys," there was probable cause to believe that the individuals with whom Johnson met in February and March were among "Benny's Boys," and that they met with Johnson on those occasions to obtain drugs for sale as part of a drug distribution scheme. Probable cause is also supported by the officers' observations of the two additional stops and brief interactions the individuals in the Acura made immediately after interacting with Johnson on February 23, 2018, and by the sizable quantity of cocaine found in Greene's possession after he transacted with Johnson on March 30. These events, when coupled with the detectives' observations of Johnson leaving and returning to the apartment before and after the observed drug transactions, provide a sufficient basis to conclude that evidence relating to Johnson's drug-selling activity would be found at the apartment. See Commonwealth v. Escalera, 462 Mass. 636, 644 (2012) ("A single observation of a suspect leaving his home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information . . .").
Citing Commonwealth v. Hill, 51 Mass. App. Ct. 598, 601 (2001), the defendant contends that the discovery of drugs in Greene's possession after he met with Johnson does not support the inference that Greene obtained the drugs from Johnson. The comparison is inapt. In Hill, the police stopped a woman and found her to be in possession of drugs shortly after observing her leave the defendant's residence. Id. But unlike the circumstances in the present case, the police had made no observation of an encounter between the woman and Hill that, based on their training and experience, they recognized to be a drug transaction. Id. at 608-609.
We likewise are unpersuaded by the defendant's suggestion that Johnson's role in the two observed drug transactions was equally likely to have been as buyer rather than as seller. To the contrary, when considered together with the knowledge of police of Johnson's prior drug distribution activity, and in particular his identity as "Benny" of "Benny's Boys," the fact that the two observed transactions were with different individuals (from which it may be inferred that both were acting as "runners" in Johnson's distribution scheme, rather than separate suppliers of drugs to Johnson), and the fact that one of the individuals with whom the defendant completed a transaction was then observed immediately thereafter to conduct transactions with others, support the conclusion that Johnson was the seller rather than the buyer in the two observed drug transactions.
Because the affidavit supporting the warrant application furnished probable cause to believe that evidence of drug-selling activity would be found in the apartment, there was no error in the motion judge's denial of the defendant's motion to suppress and subsequent motion for reconsideration; the orders denying both motions are accordingly affirmed.
So ordered.
By the Court (Green, C.J., Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 11, 2020.