Opinion
20-P-1323
02-18-2022
COMMONWEALTH v. Jammy Montine ALPHONSE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with trafficking one hundred grams or more of cocaine in violation of G. L. c. 94C, § 32E (b ), possession of a firearm without a firearm identification card in violation of G. L. c. 269, § 10 (h ), possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10 (h ) (1), possession of a firearm while in the commission of a felony in violation of G. L. c. 265, § 18B, and possession of counterfeit credit cards in violation of G. L. c. 266, § 37C. The defendant moved to suppress 2,023 grams of cocaine, paraphernalia consistent with trafficking, $77,630 in cash, a revolver, ammunition, a laptop computer with a credit card reader/encoder attached, an embossing machine, and various other items seized from the defendant's residence in Revere pursuant to a search warrant. The motion was allowed, and the Commonwealth has brought this interlocutory appeal, which was allowed by a single justice of the Supreme Judicial Court and referred to this court. We reverse the order allowing the motion to suppress.
The defendant also sought to suppress evidence obtained during a search of an apartment in Woburn. The judge denied the motion as to the Woburn apartment, and the defendant does not challenge that denial.
Background. The search warrant at issue permitted a search of 540 Revere Beach Boulevard, apartment 503, Revere, for "credit card embossing machines, credit card reader/encoder devices, documents indicating residency, any photo identification, credit cards, cards that can be magnetically encoded, credit card receipts, any credit card applications, documents related to the purchase of furniture from Bernie and Phyl's, notes containing credit card numbers," as well as the furniture from two orders placed at Bernie and Phyl's. A judge of the Superior Court concluded that the affidavit in support of the search warrant lacked probable cause.
Whether an affidavit contains probable cause to justify issuance of a search warrant is a question of law, reviewed de novo. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). The "inquiry as to the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit" (quotation and citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). Consequently, we turn to the affidavit of Detective Frank Morello of the Saugus police department submitted in support of the search warrant application.
In his affidavit, Detective Morello stated the following: On December 26, 2017, the Saugus police received information from an attorney that represented Bernie and Phyl's Furniture regarding two fraudulent purchases of furniture that had occurred in October 2017. On October 12, 2017, an order was placed by telephone to the Saugus Bernie and Phyl's store under the name Michael Alphonse. The order totaled $2,937.87, and was charged to a Visa credit card. The furniture was delivered on October 17, 2017. The delivery address was 5000 Inwood Drive in Woburn. At the time of delivery, a "Mr. Alphonse" signed the delivery receipt. The next day, "the credit card company disputed the charges and Bernie and Phyl's received a chargeback notice."
An order was placed by telephone to the same store on October 18, 2017, by a person identifying himself as Jeffrey Menard. This order totaled $3,977.10, and was charged to a Mastercard. Delivery was made on October 20, 2017, to 6000 Inwood Drive, Woburn. On November 7, 2017, "Bernie and Phyl's received notice of an additional chargeback." On December 6, 2017, a Bernie and Phyl's employee went to 6000 Inwood Drive, apartment 6301, "and spoke to a person there who claimed to be Mr. Menard, but not Jeffrey Menard. That person told the Bernie and Phyl's employee that he had to get ready for school, and he never came back to the door."
The detective discovered through a "public records check" that a person named Jammy Alphonse was reported to use the address 6000 Inwood Drive, apartment 6301, Woburn. He also discovered through the same public records check that Alphonse had a prior address of 14A Arlington Street, Everett, and that at the same time that Alphonse was reported to live at the Everett address, "a second person was attached to the same address. That person's name was Tedje Menard."
The defendant challenges the reliability of the information from the public records check, challenging both the basis of the officer's knowledge and the veracity of the information. The only relevance of this information, however, is that it provided the detective with the defendant's name, Jammy Alphonse. The relationship of Alphonse to the apartment was corroborated when on September 21, 2018, as described in the affidavit, the detective "requested the assistance of U.S. Postal Inspectors" to determine whether Jammy Alphonse or Tedje Menard were currently receiving mail at 6000 Inwood Drive, apartment 6301, in Woburn. On February 23, 2018, the affidavit reports, the detective received a reply from a postal inspector which indicated that Jammy Alphonse was currently receiving mail at that address, but that Menard had not received anything between February 21 and 23, 2018. We would caution police to provide more detail in explaining the nature of records checks and online searches they perform. However, even if the information from the records check linking the defendant to the apartment in Woburn would, by itself, have been unreliable, it was corroborated here by the postal inspector, such that the affidavit contains reliable information linking the defendant and the apartment.
The affidavit also recites that the detective did a police records search of Jammy Alphonse and discovered a police report from the Taunton police department dated October 4, 2017 (police report). The police report included the Taunton police incident number. According to the affidavit, the police report detailed an incident in which fraudulent credit cards were used in an attempt to obtain furniture from Jordan's Furniture, also in October 2017. The affidavit states that "Taunton Detective Robert McDonald was made aware of the fraudulent purchase and established surveillance at the time the furniture was to be picked up. A man, later identified as Jammy Alphonse, arrived on scene and presented himself to be Stanley Julce, a man who was authorized to pick up the furniture order." Ultimately, according to the police report as recounted in the affidavit, Alphonse and two codefendants were arrested. Alphonse was charged with operating a motor vehicle with a suspended license (subsequent), credit card fraud over $250, larceny over $250 by false pretense, identity theft, and attempt to commit a crime.
The police report, of course, is hearsay, and the defendant challenges both the affiant's basis of knowledge of the information in it, and the veracity of that information. See Aguilar v. Texas, 378 U.S. 108, 114 (1964) ; Spinelli v. United States, 393 U.S. 410, 415 (1969). It is well established that reliable hearsay evidence, standing alone can satisfy the basis of knowledge prong of the Aguilar-Spinelli standard, particularly where the "first link" in the hearsay chain personally observed the defendant's criminal behavior. Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 232-233 (2006) (holding that Department of Social Services report predicated on hearsay could form the basis of affidavit that provided probable cause for search warrant). Further, the veracity of the hearsay declarant is bolstered when he or she is a named informant and his or her actions, such as reporting the behavior to the authorities, corroborate the allegations and dispel suspicions of "inarticulated self-interest." Id. at 234, quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984). The affidavit here recounts the name of a police detective who personally observed someone with the defendant's name presenting himself to pick up furniture and using a false name to do so. The affidavit says this resulted in a police report, identified by the affiant by its number, which stated that the defendant had been charged with a series of crimes. This evidence suffices to meet the requirement of both basis of knowledge and veracity sufficient to render the hearsay police report reliable.
The affidavit also reports the results of Google searches of both Tedje Menard and Jammy Alphonse. The search of Menard revealed "an article on cbslocal.com that had an image of Tedje Menard at a court proceeding after being charged with credit card fraud." The search of Alphonse "revealed an article in the Union Leader newspaper that reported the arrest of Jammy Alphonse after using a fraudulent credit card to obtain liquor." The article indicated that at the time of arrest Alphonse possessed twenty-one different credit cards and identified himself as Stanley Julce.
The defendant argues that these two articles may not be relied upon because of inadequate evidence of basis of knowledge and veracity. Although the article about Alphonse, at least, contained some details, such as the use of the same alias as was identified in the Taunton police report, that might be viewed as corroborative, we need not rely on the articles, as the remaining information in the affidavit was sufficient without them.
The affidavit goes on to state that on March 21, 2018, the detective applied for and was granted a search warrant for 6000 Inwood Drive, apartment 6301, Woburn (Woburn apartment), which was executed on March 23, 2018. Although the defendant challenged in his motion the validity of the Woburn apartment warrant, the motion judge found it valid, and the defendant raises no issue about its validity here. The officers who executed that warrant, including the detective, found the Woburn apartment almost completely unfurnished. The detective observed only a child's "pack-and-play," a small console table, a "blow up" mattress, and a television, which was disconnected, on the floor of the living room. The officers searched the apartment and discovered one hundred credit cards. Some of these cards bore the names Tedje Menard, Stanley Julce, and Jammy Alphonse.
While conducting the search at the Woburn apartment, the police also discovered a brochure from the Beach House Apartments in Revere, a brochure the affidavit described as "typical of a sales brochure which is given to prospective tenants who are considering occupancy."
On March 26, 2018, the affidavit continues, the detective and other officers went to the Beach House Apartments at 540 Revere Beach Boulevard, Revere (Revere apartment). They met with the general manager of the property, Daniel MacIsaac. They learned from him both that Jammy Alphonse was listed as a current tenant in apartment 503 in the complex, and that "MacIsaac was familiar with Alphonse due to the fact that he had already received noise complaints about the unit from other tenants." We think it reasonable to infer from that phrasing that Alphonse had only recently become a tenant at the Revere apartment.
Discussion. In light of the special protections afforded the home under both the Fourth Amendment of the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, probable cause to search a suspect's residence cannot be established merely on the basis of information that he has committed a crime and that he lives there. See Commonwealth v. Pina, 453 Mass. 438, 441 (2009). "To establish probable cause to search an individual's house, the search warrant affidavit must establish a ‘substantial basis for concluding that evidence connected to the crime will be found on the specified premises.’ ... The nexus to search a residence for evidence of a crime ‘may be found in the type of crime, the nature of the ... items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought]’ " (citations omitted). Commonwealth v. Perkins, 478 Mass. 97, 104 (2017).
Given all the facts and circumstances described in the detective's affidavit, we think that it established probable cause to believe that stolen furniture, documents relating to its purchase, and fraudulent credit cards would be found in the Revere apartment. In permitting a search for those items, the warrant was valid and, in the absence of a claim that anything seized could not have been found during a search for those items, the motion to suppress should have been denied.
First, there was probable cause to believe that the defendant had been living at the Woburn apartment that was searched, but had vacated it and moved to the Revere apartment. He had received mail at the Woburn apartment, and credit cards bearing both his name and the aliases he had used to attempt to commit credit card fraud in the past were found in the Woburn apartment, as well as a brochure for the Revere apartment complex at which there was evidence he recently had become a tenant.
There was also probable cause to believe that he had had furniture that he had fraudulently obtained delivered to the Woburn apartment. While, of course, it might have been obtained for resale, furniture is cumbersome and difficult to move, and it is a durable good with a long life span. See Commonwealth v. Guastucci, 486 Mass. 22, 28 (2020) (durable goods, which are of "enduring use to its holder and not inherently incriminating might reasonably be found in the same location several weeks later"). See also Commonwealth v. Blye, 5 Mass. App. Ct. 817, 818 (1977) (seemingly innocuous stolen household goods were likely to be retained for longer periods of time). There was, therefore, probable cause to believe that the furniture delivered to the Woburn apartment might have been found in the Revere apartment. Probable cause, of course, does not amount to proof beyond a reasonable doubt, or even proof by a preponderance of the evidence, but there was a "fair probability" that the furniture would be found there. See United States v. Grubbs, 547 U.S. 90, 95 (2006).
And because one taking delivery of furniture might need to have paperwork to show delivery people, there also was a sufficient nexus between the Woburn apartment and documents relating to the fraudulent purchase of the furniture to provide probable cause to believe they might be found at that same address. Cf. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 300 (2009).
The evidence provided probable cause to believe further that the Woburn apartment had been vacated, and that the defendant had moved from that location to a new apartment in Revere. There was also probable cause to believe that he would have taken the furniture from the Woburn apartment to his new apartment in Revere. After all, it had not been left in the Woburn apartment, and whatever furniture had been in that apartment must have gone somewhere. Likewise, there was probable cause to believe that whatever documents might have been kept in the Woburn apartment would have been moved to the Revere apartment. Finally, that credit cards, including ones in a name he had used when attempting to commit credit card fraud, were found at the Woburn apartment provided probable cause to believe that he kept stolen credit cards at his residence, and therefore that some might be found at the new apartment in Revere. Cf. Commonwealth v. Colon, 80 Mass. App. Ct. 162, 169 (2011) ("Once it is established that a defendant is operating a drug business that includes his residence, it is unnecessary to add much more to an affidavit to justify searching for proceeds or records related to that business").
To the extent, therefore, that the warrant permitted a search for the furniture, documents, and credit cards in the Revere apartment, we think it was adequately supported. While one might question the basis for the inclusion of other items among the items to be searched for -- for example, credit card embossing machines -- any weakness in the affidavit as to such items does not require suppression unless any of the items found in the apartment in Revere were found someplace the police could not search for the furniture, documents related to it, or credit cards. The defendant makes no assertion any of the items was.
Consequently, so much of the order entered on October 22, 2019, allowing the motion to suppress is reversed.
So ordered.
reversed