Opinion
21-P-693
06-03-2022
COMMONWEALTH v. JORGE L. DELGADO-RIVERA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A jury convicted Jorge Delgado-Rivera of possessing ammunition without a firearm identification card (FID), after officers found a bullet on a nightstand in 84 Bow Street while conducting a search pursuant to a warrant. The defendant's motions to suppress evidence and for postconviction relief pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), or Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), were both denied. The defendant filed a timely appeal from his conviction and the denial of his motion for postconviction relief. He argues that (1) the motion judge erred in denying his motion to suppress evidence because the affidavit in support of the application for the warrant lacked probable cause for the search of the interior of 84 Bow Street and (2) there was insufficient evidence to support his conviction of possession of the bullet found on the nightstand. We affirm.
Discussion.
1. Probable cause.
The defendant contends that the judge erred in denying his motion to suppress because the affidavit in support of the application for the warrant lacked probable cause to search the residence for (1) evidence of a shooting and (2) security camera recording equipment. He argues that there was no nexus between the interior of the home and the shooting that had occurred outside and that there was no probable cause to believe the security camera equipment was stored in the residence, or that it was even owned or controlled by the defendant.
We review the issuance of the search warrant de novo, asking whether the affidavit provided "a substantial basis for concluding that evidence connected to the crime" would be found at the home. Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a search warrant may issue only on a showing of probable cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007). The validity of the warrant must be established from the four corners of the application and affidavit, unaided by extrinsic documents, testimony, or other considerations. See Commonwealth v. O'Day, 440 Mass. 296, 297-298 (2003); Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995). The affidavit must "contain the facts, information, and circumstances upon which [a magistrate] relies to establish sufficient grounds for the issuance of the warrant." G. L. c. 276, § 2B. The magistrate must ask, when reviewing a search warrant application, whether there is a substantial basis on which to conclude that the articles are probably present at the place to be searched. The probable cause necessary does not require definitive proof. Commonwealth v. Spano, 414 Mass. 178, 184 (1993). "In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). Accordingly, a review of a search warrant affidavit shall be conducted in a realistic and commonsense manner. Donahue, 430 Mass. at 712.
Here the defendant challenges the nexus between the items sought and the residence, and claims that the affidavit failed to support a conclusion that evidence of a shooting that occurred outside, and security camera recording equipment, would be found at 84 Bow Street, relying on Commonwealth v. Pina, 453 Mass. 438 (2009). The court held in Pina, supra at 442, that police must provide "particularized information based on police surveillance or otherwise, that would permit a reasonable inference that the defendant likely kept a supply of drugs" in the home. "We have not defined the precise contours of what constitutes 'particularized information' because each case presents its own facts and must be considered in light of a unique set of circumstances." Commonwealth v. Escalera, 462 Mass. 636, 643 (2012). "[A]n application need not establish to a certainty that the items to be seized will be found in the specified location, nor exclude any and all possibility that the items might be found elsewhere. The test is probable cause, not certainty." Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 461 (2005). "[T]he [requisite] nexus between the items sought and the place to be searched could be based on 'normal inferences as to where such items might be kept by the suspect.'" Commonwealth v. Anthony, 451 Mass. 59, 70 (2008), quoting Commonwealth v. Matias, 440 Mass. 787, 794 (2004). See also Commonwealth v. Santiago, 66 Mass.App.Ct. 515, 521 (2006).
The affidavit here allowed for a reasonable inference that evidence of a bullet hole in a house across from 84 Bow Street, found during the investigation of recent reports of shots fired at 84 Bow Street, possibly related to gang violence, may have been caused by a gun fired from 84 Bow Street. This inference provided a basis for concluding that officers would find evidence connected to the shooting -- firearms and ammunition (spent or unused) -- inside 84 Bow Street. See Commonwealth v. Thevenin, 82 Mass.App.Ct. 822, 826-827 (2012) (finding probable cause to search for evidence of shooting in residence). See also Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983) (finding probable cause to search for ammunition).
Further, there was a substantial basis to reasonably infer that there would be video footage of the shooting inside 84 Bow Street. The affiant knew from a prior, recent experience that the occupants of 84 Bow Street possessed a video security system that captures Bow Street. See Commonwealth v. John, 36 Mass.App.Ct. 702, 706 (1994), quoting Franks v. Delaware, 438 U.S. 154, 171 (1978) (affidavits supporting search warrants bear "a presumption of validity," and defendant bears burden of overcoming that presumption). See also Hason, 387 Mass. at 175 ("Probable cause does not require a showing that the police resolved all their doubts").
Upon a thorough review of the warrant, application, and affidavit, we are satisfied that the police investigation, outlined in the affidavit, allowed for a reasonable inference of the presence of evidence relating to a shooting including firearms and ammunition, as well as security recording equipment at 84 Bow Street, thus providing a sufficient nexus and ample probable cause to justify the issuance of a warrant to search 84 Bow Street.
2. Sufficiency of the evidence.
The defendant also contends that the Commonwealth presented insufficient evidence to establish, beyond a reasonable doubt, that the defendant knew of the bullet on the nightstand and had the intent and ability to exercise dominion and control over it. He argues that the absence of evidence of his clothing, papers, or personal effects in that room required a directed finding by the trial judge of not guilty. In determining whether there was sufficient evidence at trial, "an appellate court is not required to 'ask itself whether j_t_ believes that the evidence at the trial established guilt beyond a reasonable doubt.' [citation omitted] . . . Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009). Constructive possession requires proof beyond a reasonable doubt of "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019), quoting Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015). "This proof 'may be established by circumstantial evidence, and the inferences that can be drawn therefrom.'" Dagraca-Teixeira, supra, quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).
There was sufficient evidence from which a rational jury could find beyond a reasonable doubt that the defendant constructively possessed the bullet on a nightstand in 84 Bow Street. The jury could have found that 84 Bow Street was the defendant's home, because he arrived at the home shortly after shots were fired, his wife and son lived in the home and were there when officers arrived, and the defendant told officers that he and his family did not want anyone in the home without a warrant. Officers also found multiple pieces of mail inside the home, including a bank statement, addressed to the defendant at 84 Bow Street. These facts are sufficient for a jury to reasonably conclude that 84 Bow Street was the defendant's home.
A reasonable jury could have further inferred that the defendant resided in the bedroom in which officers found the bullet on the nightstand. The detective who searched the house described the three bedrooms to the jury and concluded that the bedroom in which the officers found the bullet was the "master bedroom." Officers found the mail addressed to the defendant in the hallway outside of the "master bedroom, ” and the media system for the security cameras was located in the closet of the "master bedroom." Based on these facts, a reasonable jury could conclude that the defendant occupied the "master bedroom" of the home he shared with his wife and sons. See Commonwealth v. Valentin, 474 Mass. 301, 310 (2016) (jurors may draw upon own life experience and common sense).
Officers also found paperwork belonging to the defendant's teenaged sons in one of the other bedrooms.
Since the jury could reasonably infer that the defendant resided in the bedroom in which officers found the bullet, the jury could also find beyond a reasonable doubt that the defendant constructively possessed the bullet. "[T]he jury may infer constructive possession upon a showing that the defendant occupied a particular area of the dwelling in which the contraband was found." Commonwealth v. Proia, 92 Mass.App.Ct. 824, 832 (2018). "[U]pon a showing that the defendant has a 'particular relationship' to the location within a home or apartment in which the contraband is found, the defendant is adequately linked to that contraband, and the jury may reasonably infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it." Id. at 833. See Id. (sufficient evidence of constructive possession where defendant occupied bedroom in which contraband found); Commonwealth v. Clarke, 44 Mass.App.Ct. 502, 506 (1998) (conviction affirmed where "the jury could reasonably have inferred that the defendant occupied the rear bedroom and was, indeed, in constructive possession of the contraband discovered therein"). "Moreover, where the defendant has a particular relationship to the location in which the contraband is found, it is not necessary that the defendant be in the vicinity of the contraband or even present in the location when the contraband is discovered in order for the jury to infer that [he] was in constructive possession of such contraband." Proia, supra at 833-834.
Because the jury could reasonably conclude that the defendant occupied the "master bedroom," the defendant was adequately linked to the bullet and the jury could infer that the defendant had knowledge of the contraband, as well as the ability and intention to exercise dominion and control over it. See Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235, 237 (1997) (ability to exercise control apparent from defendant's right of access). Contrast Commonwealth v. Humphries, 76 Mass.App.Ct. 702, 704-705 (2010) (identification belonging to defendant and drugs found together in room not enough to prove defendant constructively possessed drugs when there was no evidence he rented, occupied, or spent a great deal of time at apartment). Therefore, we conclude there was sufficient evidence to sustain the conviction.
Judgment affirmed.
Order denying motion for postconviction relief affirmed.
Blake, Neyman & Lemire, JJ. 2