Opinion
No. 11–P–575.
2012-09-6
COMMONWEALTH v. Reginald CLAGON (and six companion cases ).
By the Court (BERRY, KAFKER & MILLS, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The three codefendants were indicted for drug-related crimes.
Their motions to suppress evidence seized by a search warrant were allowed. We examine the affidavit of Patrick Bryne, a Boston police officer, who observed one of the codefendants, Anthony Gerald, participate in three controlled buys with a confidential informant (CI). Our standard for this review is familiar. See Commonwealth v. Colon, 80 Mass.App. 162, 166 (2011).
One codefendant was also charged with firearm and ammunition offenses.
The first buy occurred within thirty days prior to the application for the warrant. Gerald was observed traveling from the location of the buy to a townhouse at 8 Blanvon Road in Jamaica Plain (8 Blanvon). The second controlled buy occurred within three weeks prior to the application. This time, Gerald was observed leaving 8 Blanvon shortly after a call from the CI and “going directly to the pre-determined meeting place without stopping anywhere before meeting with [the CI].” The third controlled buy occurred within three days
prior to the application. Again, Gerald was observed as he left 8 Blanvon and went directly to the buy location.
In Commonwealth v. Pina, 453 Mass. 438, 442 (2009), the court noted that the “lapse of time between [a single] observation and the application for the search warrant (three days) raises further concerns.” Neither the parties nor the judge addressed the lapse of time issue, nor will we. See Colon, supra at 170.
As to each buy, Bryne does not indicate the time Gerald left 8 Blanvon, how much time transpired between leaving the house and the buys, or the quantity of heroin sold at each buy. Bryne also does not indicate how Gerald traveled between 8 Blanvon and the buy locations. Further, Bryne does not identify 8 Blanvon as Gerald's residence, but only that Gerald “is a heroin dealer, who conduct [sic] business from 8 Blanvon.” While Bryne does recite that 8 Blanvon “is occupied by and/or in the possession of Anthony Gerald,” the only facts to support this conclusion are the observations we have noted. For example, there is no evidence of a tax bill, mailbox label, statement from the building manager, or the like, confirming the affiant's conclusion. See id. at 164 (address where defendant received mail and registered his motor vehicle).
While this case and Colon are close, we conclude that the affidavit here was insufficient and the motion to suppress was properly allowed.
Orders allowing motions to suppress evidence seized by search warrant affirmed.