Opinion
No. 11–P–1725.
2013-03-21
COMMONWEALTH v. Melvin JAMES (and five companion cases ).
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order by a Superior Court judge suppressing evidence gathered by police from a warranted search of a dwelling at 57 Clifton Avenue, Springfield. At the conclusion of a nonevidentiary hearing, the judge deemed the information within the “four corners” of the police affidavit submitted in support of the warrant application insufficient for a showing of probable cause. We find ample support for the issuance of the warrant and reverse the order allowing the motion to suppress.
Background. 1. Procedure. A Hampden County grand jury indicted the defendant Alexis Rodriguez for trafficking in heroin, G .L. c. 94C, § 32E( c ), possession of a class A substance with intent to distribute, G.L. c. 94C, § 32( a ), and violation of the school or park zone statute, G.L. c. 94C, § 32J. Rodriguez moved to suppress evidence seized during the execution of a search warrant at 57 Clifton Avenue, Springfield. The judge allowed codefendant Melvin James to join the motion. The defendants challenged the sufficiency of the supporting affidavit.
After the judge allowed the motion to suppress, the Commonwealth received leave from a single justice of the Supreme Judicial Court to pursue an interlocutory appeal to this court. See G.L. c. 278, § 28E, and Mass.R.Crim.P. 15(a)(2) and (b)(1), as appearing in 422 Mass. 1501 (1996).
2. Facts. Officer Gregg Bigda prepared the affidavit in support of the application for the search warrant for 55/57 Clifton Avenue. It related the following information. Bigda was a police officer assigned to the narcotics bureau of the Springfield police department. He had been a police officer in Springfield since July of 1994, and had been involved in hundreds of narcotics-related investigations in the Springfield area. Many of those investigations had resulted in the arrest and successful prosecution of suspected narcotics traffickers.
The affidavit dated April 10, 2010, described the results of a five-week investigation conducted by the police into crack cocaine and heroin distribution from 55/57 Clifton Avenue, a duplex, and first-floor apartments at 253 Mill Street and 259 Mill Street. Officer Bigda had received information from three confidential informants, referred to in the affidavit as “CRI(1),” “CRI(2),” and “CRI(3).” He described the informants as individuals who had provided information about narcotics dealers in the past and who had participated (in the form of controlled purchases of narcotics) directly in the investigation of the present suspects. The affidavit's account of the informants' prior work was not specific. “The CRI's participation has resulted in the seizures of narcotics and the arrest of their dealers. Some of [the] cases associated with these informants have been successfully prosecuted in our court system.”
As the result of their information, Springfield police conducted a five-week surveillance of the duplex at 55/57 Clifton Avenue and related apartments at 253 and 259 Mill Street and a series of six controlled purchases of narcotics from the defendant Rodriguez. The affidavit described in detail each of the six controlled purchases made by the confidential informants under police observation.
Four of the controlled purchases were directly connected to 57 Clifton Avenue, as either the point of departure for the drug seller, Alexis Rodriguez, or as the point of destination for him after the controlled purchase. As part of the fifth buy, a seller not identified as Rodriguez went to the designated transaction site from 57 Clifton Avenue.
Each of the controlled purchases conformed to the procedures required by Commonwealth v. Desper, 419 Mass. 163, 168 (1994).
Analysis. 1. Standard of review. Since the motion judge did not conduct an evidentiary hearing, her decision is not entitled to the deference usually accorded a judge receiving testimony and making credibility determinations. See Commonwealth v. Upton, 394 Mass. 363, 377 (1985). We assess the same affidavit. Our review is therefore de novo.
2. Merits. In reviewing the affidavit, we are mindful that it “should be read as a whole, not parsed, severed, and subjected to hypercritical analysis.” Commonwealth v. O'Day, 440 Mass. 296, 301 (2003), quoting from Commonwealth v. Blake, 413 Mass. 823, 827 (1992). This court's “inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ “ O'Day, supra at 297, quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995). Appellate courts “give considerable deference to the magistrate's determination.” Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 460 (2005). Additionally, “[a]ll reasonable inferences which may be drawn from the information in the affidavit may also be considered as to whether probable cause has been established.” Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). By these standards, we conclude that the affidavit in support of the application established an abundant nexus between suspected drug-dealing activities and 57 Clifton Avenue and thereby probable cause that a search would uncover cocaine, packaging, and distribution paraphernalia, cash, and financial records.
Police surveillance established that the target location was the point of departure for three controlled buys conducted by the confidential informants: one each during the weeks of March 7 and March 14, 2010; and one within twenty-four hours of the preparation of the affidavit. It was the point of destination after two controlled buys. 57 Clifton Avenue was connected to 253 Mill Street by the course taken by Rodriguez in two of the transactions; after each of his observed sales, Rodriguez brought the proceeds to either the target location or 253 Mill Street. 253 Mill Street served as the point of departure for two additional controlled purchases, as well as the apparent location for numerous other uncontrolled buys during surveillance by police throughout the investigation.
The magistrate could reasonably infer that Rodriguez and his associates picked up the drugs at the target location, delivered them to the confidential informants at the prearranged sale sites away from the target location, and returned the proceeds to one of their bases of operation, which included the target location. That well-supported inference established probable cause to search the target location. Compare Commonwealth v. Gallagher, 68 Mass.App.Ct. 56, 60 (2007) (nexus to defendant's residence established where surveillance officers saw defendant leave from and return to her residence before and after making two drug deliveries); Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 107–108 (2007) (same); Commonwealth v. Rodriguez, 75 Mass.App.Ct. 290, 298 (2009) (upholding search of defendant's residence based upon observation of defendant returning to residence after controlled buy and leaving from residence to make second controlled buy, and confidential informant's observation that defendant had more drugs for sale); Commonwealth v. Young, 77 Mass.App.Ct. 381, 387 (2010) (“The defendant's routine of walking directly from his apartment to the point of sale, and returning to his apartment immediately following the sale, raised a reasonable inference that he kept a cache of drugs in his apartment ..., which served as a base of operations for drug sales that he conducted within walking distance of his residence”); Commonwealth v. Colon, 80 Mass.App.Ct. 162, 168 (2011) ( “The routine of leaving from and returning to [the target location or 253 Mill Street] demonstrated a pattern of drug dealing consistent with a [narcotics] delivery service, and it was reasonable to infer that the delivery service was based out of [the target location] where the drugs were kept prior to delivery”).
The aggregate information reported by the affidavit furnished ample probable cause to believe that drug products, materials for preparation and distribution, proceeds of sales, and records of transactions and customers would be present at 57 Clifton Avenue. See Commonwealth v. Monteiro, 80 Mass.App.Ct. 171, 175 (2011), citing Commonwealth v. Pina, 453 Mass. 438, 400 (2009). See also Commonwealth v. Ortiz–Peguero, 51 Mass.App.Ct. 90, 97 (2001) (affidavit in support of search warrant application must set forth factual basis to establish that drugs would be found in target location).
The motion judge's observation that no controlled purchase occurred at the target location overlooks the reality, illustrated by abundant case law, of probable cause that evidence such as product, proceeds, packaging, and records may be stored at the targeted location. “The fact that police never observed ... evidence of drug transactions at the [target location] ... is not fatal to probable cause, because the defendant[s'] usual method of operation was to deliver drugs away from ... [the target location].” Commonwealth v. Hardy, 63 Mass.App.Ct. 210, 213 (2005). “The connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, nature of the items, the suspect's opportunity to conceal items, and inferences as to where the items are likely to be hidden.” Commonwealth v. Gallagher, 68 Mass.App.Ct. at 59, quoting from Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 600 (1991). Here, the totality of the evidence supported a strong inference that the defendants were maintaining caches of narcotics and narcotics sales proceeds at the target location.
Officer Bigda's opinion of the modus operandi of the traffickers was entitled to weight by reason of his experience. See Commonwealth v. Kennedy, 426 Mass. 703, 704–705 (1998) (magistrate may weigh specialized knowledge, training, and experience of investigating officers). See also Commonwealth v. Taglieri, 378 Mass. 196, 199, cert. denied, 444 U.S. 937 (1979). According to Officer Bigda, it is “common practice” for an organization to have multiple locations for their inventory and sales proceeds. See Commonwealth v. Anthony, 451 Mass. 59, 71–72 (2008) (magistrate could reasonably rely on experience of affiant and inferences which affiant drew from available information).
Finally, we conclude that the controlled purchases and sustained police investigatory observation of 57 Clifton Avenue and 253 Mill Street supersede the Aguilar–Spinelli deficiencies of the affidavit's opening references to the three confidential informants. Those references failed to furnish information satisfying the requirements of basis of knowledge and veracity. See Aguilar v. Texas, 378 U.S. 108, 114–115 (1964); Spinelli v. United States, 393 U.S. 410, 414–415 (1969); Commonwealth v. Upton, 394 Mass. at 375. “If an informant's tip fails to satisfy one of the two prongs, independent corroboration in the affidavit may supplement the informant's tip to support a finding of probable cause.” Commonwealth v. Parapar, 404 Mass. 319, 321–322 (1989), citing Commonwealth v. Saleh, 396 Mass. 406, 410 (1985).
The controlled buys and the police observations compensated for any deficiencies and provided the necessary linkage between suspected drug-dealing activities and the target location. See Commonwealth v. Valdez, 402 Mass. 65, 71 (1988) (“The police surveillance, in sum, lent credence to the informant and his statements, thereby remedying any arguable deficiency regarding the second prong of the Aguilar–Spinelli standard”). See also Commonwealth v. Colon, 80 Mass.App.Ct. at 166 n. 8 (“To the extent that any defects in [the confidential informants'] basis of knowledge or reliability existed, they were cured by police corroboration”). The motion judge failed to appreciate the considerable results of the extensive police investigation.
In sum, the affidavit established probable cause that the defendants were operating a drug delivery service from the targeted location of 57 Clifton Avenue, and that a search of the premises would yield evidence of their operation.
The Commonwealth does not appeal from the portion of the order suppressing any evidence resulting from the search of 55 Clifton Avenue.
Conclusion. We therefore reverse that portion of the order allowing the motion to suppress evidence found at 57 Clifton Avenue, affirm the remainder of the order, and remand the cases for further proceedings in Superior Court.
That portion of the order allowing the motion to suppress evidence found at 57 Clifton Avenue is reversed and the cases are remanded for further proceedings.
The order is otherwise affirmed.