Opinion
No. 15–P–104.
07-13-2016
COMMONWEALTH v. Tyson MAGNETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a Superior Court judge allowing defendant's motion to suppress evidence seized pursuant to a search warrant obtained based on an informant's tip as well as police observation of three controlled drug purchases and additional surveillance. The judge allowed the motion on the ground that a nexus between the defendant's drug activities and the target premises had not been sufficiently well established. We affirm.
A grand jury ultimately indicted the defendant on charges of trafficking in heroin in excess of eighteen grams, G.L. c. 94C, § 32E(c )(1) ; possession of cocaine with the intent to distribute, G.L. c. 94C, § 32A(c ) ; possession of heroin with the intent to distribute, G.L. c. 94C, § 32(a ) ; and two counts of committing a violation of the controlled substance law near a school or public park, G.L. c. 94C, § 32J.
The defendant has filed a motion for attorney's fees and costs. We decline to award any fees and costs as we determine that the Commonwealth's appeal was not without merit.
Background. Our review of the sufficiency of a search warrant “always begins and ends with the ‘four corners of the affidavit’ “ submitted in support of the warrant application. Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) ( O'Day ), quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995). “Because the sole issue is the sufficiency of that affidavit, we recite in detail the facts it sets forth.” Commonwealth v. Tapia, 463 Mass. 721, 722 (2012) (Tapia ).
The affiant was Detective Evan A. Bielski of the New Bedford police department's organized crime intelligence bureau. Bielski's unit specializes in narcotics investigations, and he is a veteran officer with extensive experience in drug enforcement. Around February, 2013, Bielski received a tip from a confidential informant heroin user (CI) that a black male in his mid-twenties named “Tyson” was selling heroin. Specifically, the CI informed Bielski that he had arranged to purchase heroin from Tyson by calling him at a given telephone number and that Tyson drove a new black Ford automobile.
The defendant does not challenge the CI's basis of knowledge or his veracity. See Commonwealth v. Upton, 394 Mass. 363, 374–375 (1985), citing Spinelli v. United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108 (1964). Moreover, as the CI's information was confirmed by three controlled buys, any possible defect was cured. See Commonwealth v. Clagon, 465 Mass. 1004, 1005 n. 3 (2013) ; Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 106 n. 8 (2007).
To protect confidentiality, the affidavit uses “it” in reference to the informant. We use the male pronoun for convenience. See Tapia, supra at 722 n. 2.
Bielski was already familiar with the defendant, a black male, based on prior arrests including at least one for heroin distribution. The defendant, a reputed gang member, had a record of convictions for drug violations, including possession of cocaine with intent to distribute. Bielski also knew that the defendant operated a black Ford Five Hundred with Massachusetts registration 263TZ9. Using a photo from the New Bedford police department's computer system, Bielski confirmed with the CI that the defendant was the same Tyson from whom he had purchased heroin.
Bielski's investigation revealed that the defendant's Ford was seen parked outside a multifamily apartment building at 554/556 Brock Avenue in New Bedford. Although the affidavit does not explain how Bielski came to specifically focus on the second floor of 554/556 Brock Avenue or even how many apartments are located in the building total or on the second floor in particular, it recites that, according to NSTAR, “the listed subscriber for utilities at 556 Brock Avenue 2nd floor is Alvaro Reboca.” Bielski knew from arresting the defendant in the past that Katia Reboca was the defendant's girl friend. Bielski then consulted multiple records to determine that Alvaro is Katia's father.
Because Katia and Alvaro share a last name, we will refer to them by their first names.
Bielski and his team conducted periodic surveillance of 554/556 Brock Avenue, observing the defendant's Ford parked on the side of the building on numerous occasions. A gray Chevrolet Malibu registered to Alvaro was also observed parked on the side of the building. On at least one occasion, the defendant was observed coming in and out of the side door of the building.
Bielski and his team then initiated a series of controlled buys between the CI and the defendant. The first buy took place during the week of February 17, 2013. Prior to the controlled buy, Bielski searched the CI to ensure that he did not possess any money or illegal drugs. Then, at Bielski's instruction, the CI contacted the defendant by telephone to order heroin. Bielski provided the CI with an unspecified amount of buy money and followed him as he traveled to meet the defendant. Meanwhile, other officers established surveillance at 554/556 Brock Avenue and observed the defendant exit the side of the building and travel to meet the CI. The officers lost sight of the defendant for a short period of time and then reestablished surveillance when he arrived at the meet location. The CI and the defendant met briefly and then separated. The officers did not maintain continuous surveillance of the defendant after he parted ways with the CI so as not to arouse suspicion.
The officers, however, did keep continuous watch on the CI, who did not meet with anyone else on his way back to the prearranged meeting location with the officers. The CI produced the substance he had just purchased from the defendant. Bielski searched the CI again and concluded that he once again had no other cash or illegal drugs on his person. Although the affidavit does not provide any indication as to quantity, the substance that the CI obtained from the defendant field-tested positive for heroin.
Bielski and his team conducted two more controlled purchases between the CI and the defendant, one more that same week of February 17, 2013, and the third and final transaction within seventy-two hours of Bielski's application for the warrant on March 6, 2013. The second and third controlled purchases unfolded exactly as the first in all particulars except that, on these subsequent occasions, the officers maintained continuous surveillance of the defendant without interruption as he travelled to meet the CI.
The affidavit does not indicate whether the defendant made any stops between leaving 554/556 Brock Avenue and meeting the CI.
The defendant moved to suppress evidence seized pursuant to the warrant that was issued on the basis of Bielski's affidavit. Following a nonevidentiary hearing, a Superior Court judge allowed the defendant's motion. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to prosecute an interlocutory appeal of the order allowing the motion to suppress, and the case was transferred to this court.
Discussion. The Commonwealth appeals the judge's ruling that the search warrant affidavit lacked the necessary nexus between the defendant, the criminal activity, and the location to be searched. “Because this is a question of law, we review the motion judge's probable cause determination de novo.” Tapia, 463 Mass. at 725 (citation and quotation omitted). We must determine “whether, based on the affidavit in its entirety, the magistrate had a substantial basis to conclude that a crime had been committed, and that the items described in the warrant were related to the criminal activity and probably in the place to be searched.” O'Day, 440 Mass. at 298 (citations omitted).
“Under both the Fourth Amendment and art. 14 [of the Massachusetts Declaration of Rights], a search warrant may issue only on a showing of probable cause. This probable cause inquiry requires a nexus between the items to be seized and the place to be searched.” Tapia, 463 Mass. at 725 (citations and quotations omitted). The primary issue in dispute is the sufficiency of the nexus between the defendant and the second floor apartment at 554/556 Brock Avenue. We conclude that the affidavit did not establish the necessary nexus.
1. Nexus to 554/556 Brock Avenue. In light of cases such as Commonwealth v. Escalera, 462 Mass. 636 (2012), and Commonwealth v. Luthy, 69 Mass.App.Ct. 102 (2007) (Luthy ), we are satisfied that the affidavit adequately tied the defendant and his drug delivery service to the building at 554/556 Brock Avenue. Specifically, the defendant's observed conduct in leaving that building in response to the CI's calls ordering heroin and then proceeding to meet the CI to deliver the heroin on three occasions furnishes a sufficient basis to believe that the apartment in which the defendant received those calls and from which he departed to consummate the sales probably contained narcotics. See Escalera, supra at 645 (“Before a sale, the drug dealer either is in possession of drugs, or must proceed to a location to obtain the drugs”).
“Although there may have been some ambiguity in the affidavit as to whether [the defendant] drove directly from his residence to the buy location, it was reasonable for the magistrate to infer that [he] likely took drugs from a cache stored in his residence and then proceeded directly to his destination .... Moreover, that [the defendant] was kept under surveillance during this trip allowed the magistrate to infer that it was less likely that [he] stopped at a separate location.” Luthy, supra at 107–108. See Escalera, supra at 643 (“Observations by police of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence”).
This inference regarding the apartment whence defendant departed for his meets with the CI holds regardless of whether that unit was the defendant's full-time residence or simply an apartment he utilized for his narcotics business. See Commonwealth v. Clagon, 465 Mass. 1004, 1007 (2013) (Clagon ) (affidavit need not “establish a suspect's legal relationship to the premises” as “[w]hether the suspect owns the premises, lives there, or merely conducts business there, the question is whether evidence is likely to be found there”). As the defendant conceded at oral argument, the defendant would not need to reside in the building in order to maintain a stash house there.
If 554/556 Brock Avenue were a single-family home, this would likely be the end of the inquiry. However, even if there was probable cause to believe that the defendant was storing narcotics somewhere in 554/556 Brock Avenue, given that this is an apartment building, the affidavit must establish the nexus to the specific apartment to be searched.
2. Nexus to second-floor apartment. Massachusetts case law demonstrates that police officers must adequately justify their belief that a particular apartment is connected with any criminal conduct that may be taking place in neighboring apartments or common areas within the larger multiunit building where it is situated. See, e.g., Commonwealth v. Lillis, 349 Mass. 422, 425 (1965) (warrant for search of one apartment does not allow search of second apartment in same building, in which different family resided, simply because occupant of first apartment occasionally visited second apartment); Commonwealth v. Hall, 366 Mass. 790, 800 (1975) (“different apartments in a single building are as distinct as separate dwelling houses, so that a separate warrant on probable cause is ordinarily needed for each”); Commonwealth v. Treadwell, 402 Mass. 355, 361 (1988) (invalidating search warrant where officers' “observations of the exterior of the building did not isolate with certainty which apartment or apartments the [drug buyer] entered” and “probable cause existed to search only one apartment”); Commonwealth v. Erickson, 14 Mass.App.Ct. 501, 504 (1982) (Erickson ) (“A warrant which directs the search of an entire multiple occupancy building, when probable cause exists to search only one or more separate dwelling units within the building, is void because of the likelihood that all units within the dwelling will be subjected to unjustified and indiscriminate search”). We therefore focus on the connection in Bielski's affidavit between the defendant's drug delivery service and the second-floor apartment that was the subject of the warrant.
(a) Detail concerning the building. The building at 554/556 Brock Avenue is described in the affidavit as “a multi-family apartment building.” The motion judge observed that, “having two street numbers, 554/556 Brock Avenue is likely a large building with numerous dwellings, and the selection of Mr. Reboca's second floor apartment seems to be, on this sketchy description, more of a guess than a reasoned inference.” We agree that the affidavit provides only minimal detail concerning the affiant's basis for concluding that the second-floor apartment of 554/556 Brock Avenue was probably the apartment in which the defendant was located when he received the CI's order and from which he departed in order to fulfill that order. The affidavit does not explain how Bielski settled on the second floor of 554/556 Brock Avenue but only that NSTAR informed him that the listed subscriber for utilities at this apartment was Alvaro Reboca.
The Commonwealth conceded at oral argument that the warrant address was not the defendant's full-time residence. We therefore do not dwell on conclusory statements made in passing in the affidavit that could be interpreted to assert the contrary.
The affidavit also does not contain reliably specific information concerning the total number of units in the building or how many units are served by the side door of the building that the defendant used as his means of ingress and egress. “[I]n dealing with probable cause we deal with probabilities.” Clagon, 465 Mass. at 1004 (quotation and original textual alteration omitted). As a matter of probabilities, logic suggests that the greater the number of units in the building and served by the side door, the lower the probability—and so the weaker inference—that the unit the defendant may be connected to in the building was the one associated with a woman he had been known to be dating at one time. See Commonwealth v. Figueroa, 74 Mass.App.Ct. 784, 788 (2009), reversed on other grounds, 77 Mass.App.Ct. 1117 (2010) (“probability is the touchstone for determining whether probable cause has been established” so fact that the apartment building “contained only a small number of units was a key factor” where officers were unable “to observe directly which apartment unit” their CI entered).
This inference is further weakened by the fact that, as reported by Bielski in his affidavit, 554/556 Brock Avenue was the subject of a prior search warrant execution the previous October, just five months earlier but prior to the date that the NSTAR account was opened in Alvaro's name. Given that there is no indication in the affidavit that either Katia or Alvaro is involved in the drug trade, but others in the building apparently are or were, the conclusion that the defendant was storing his drugs in the apartment where the utilities are paid by Alvaro is problematic and cannot be reached with any reasonable degree of confidence.
Bielski references Katia's criminal record, but does not indicate if it reflects any narcotics charges.
It is also somewhat troubling that the affidavit at no point lists an official address for the defendant. Although Bielski states that he consulted the defendant's Board of Probation report and Registry of Motor Vehicles file, he does not state the address those records indicated for the defendant. As far as can be determined from the affidavit, it is possible that the defendant himself lived at 554/556 Brock Avenue, albeit in a different unit. Thus, even if Katia was in fact his girl friend, she also may have been the girl next door.
(b) Detail concerning Katia. Given the Commonwealth's theory of the nexus here—in which Katia is essentially the linchpin—it is even more problematic that the affidavit contains little in the way of reliably specific information concerning her whereabouts, her living situation, and her relationship with the defendant. The affidavit does not state where Katia lived. Again, Bielski consulted records pertaining to Katia, but he did not include her listed address from those records in his affidavit. There is also no indication in the affidavit that Katia was ever seen in the vicinity of this building. At the time of the warrant application, Katia was a twenty-four year old adult, an age at which it is not automatic that she would live with her parents, if in fact her parents even lived in the building, a fact that was not established by the affidavit.
We note that the affidavit states that the NSTAR account in Alvaro's name at 554/556 Brock Avenue had only been opened the month preceding the commencement of the investigation, suggesting that this may have been a new address for Alvaro and, by extension and to the extent that she lived there, for Katia as well.
Nor can it be inferred with any reasonable probability from the affidavit that Katia and the defendant were still in a dating relationship in February and March, 2013. Bielski states that he is “familiar from arresting Tyson in the past that Katia Reboca [date of birth July 29, 1988] is his girlfriend.” (Emphasis added). But Bielski does not provide a timeframe for this arrest and therefore the affidavit does not provide a basis for determining the freshness of Bielski's knowledge concerning the defendant's love life. See Sgro v. United States, 287 U.S. 206, 210–211 (1932) (facts supporting probable cause cannot be stale and must be “closely related to the time of the issue of the warrant”); Commonwealth v. Reddington, 395 Mass. 315, 322–323 (1985) (seven month old tip about one drug transaction in defendant's house was “stale”); Commonwealth v. Cruz, 430 Mass. 838, 843 (2000) (Cruz ). The affidavit does not provide any basis for concluding that the defendant's relationship with Katia was ongoing, e.g., that they were living together, engaged, married, had a child together, or were even seen in each other's company—at the building or otherwise—during the relevant time frame.
(c) Sufficiency of available inferences. We consider these gaps in the affidavit amidst the backdrop of both the quantum of proof required and the deferential posture we adopt in reviewing search warrant affidavits “drafted in a hurly burly world.” Luthy, 69 Mass App.Ct. at 109 n. 10. “Because in dealing with probable cause we deal with probabilities, the affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis. A reviewing court gives considerable deference to the magistrate's determination of probable cause, and even the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.” Clagon, 465 Mass. at 1004 (quotations, citations, and original textual alterations omitted). See Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002) (Jiminez ) (“We also acknowledge that affidavits in support of search warrants are to be approached with a view toward common sense, read in their entirety and with considerable latitude allowed for the drawing of inferences”). Probable cause is also a considerably less exacting standard of proof than proof beyond a reasonable doubt, and the requisite quantum of proof is accordingly far lower. See, e.g., Cruz, supra at 840 (“Probable cause demands more than mere suspicion, but less than the quantum required for a conviction”).
In other contexts, courts have concluded that officers need not independently corroborate that part of an informant's tip specifying the apartment or unit in which a suspected drug dealer is operating within a larger multiunit or multifamily building. See Commonwealth v. Warren, 418 Mass. 86, 90 (1994) ( Warren ). But Warren and its progeny begin from a point where police have already received concrete information linking the defendant to a specific apartment. Those cases do not address the sufficiency of the information required to connect a suspect to a particular unit in a larger building in the first instance. Here, there is no indication in the affidavit that the CI ever told Bielski—or that the CI even knew—what apartment the defendant was using as his base of operations. Where courts have addressed the sufficiency of the primary connection between a suspect and the place to be searched, the Commonwealth has come forward with more than the guesswork—albeit informed and logical guesswork—utilized by Bielski here.
For example, in Commonwealth v. DeJesus, 439 Mass. 616 (2003) ( DeJesus ), the defendant and a cooperating codefendant were arrested after the sale of approximately 300 grams of cocaine to an undercover officer. Officers subsequently applied for a warrant to search the defendant's apartment in a three-story dwelling with at least two entrances. Id. at 625–626. The building entrance identified by the cooperating codefendant—who had never been inside the building—as the one utilized by the defendant actually led to two apartments, one on the second floor and one on the third floor. A tip from an unrelated confidential informant connected the third-floor apartment to a cocaine distribution operation. Ibid. Where the informant's tip was inadequate on its own under Aguilar–Spinelli, the court concluded that “[a]ny defect under the Aguilar–Spinelli standard with respect to this information, however, was cured by the recitation, in the affidavit, of police use of the keys seized from the defendant to unlock both the outside door of [the building] and the inside door to the third-floor apartment.” DeJesus, supra at 627. See Commonwealth v. Ortiz–Peguero, 51 Mass.App.Ct. 90, 97 (2001) (defendant's statement that he rented apartment in question and production of keys to apartment from his pants pocket were sufficient to establish nexus between defendant and apartment).
The line of drug delivery service cases (e.g., Luthy, Escalera, Clagon ) provides little guidance in this regard. In Luthy and Escalera, the suspects were seen leaving from their own residences to make narcotics deliveries, and while the defendants disputed the connection between their illegal activity and the premises to be searched, they did not challenge their general connection to the premises to be searched. Although the defendant in Clagon did challenge his nexus to the target premises, he was seen exiting what the affidavit describes as a “two (2) story single family attached town house.” Id. at 1005. In addition, the affidavit in Clagon established that a vehicle registered to the defendant's father was seen parked in front of the premises, that his father was seen exiting the vehicle and entering the premises using a key, and that his father had an extensive criminal record involving drug offenses. Ibid. Here, in contrast, we are confronted with a multifamily dwelling and a connection only to the father of an intimate acquaintance of the defendant with no known history of drug involvement.
Tapia, 463 Mass. 721, is more instructive. In Tapia, the drug delivery service defendant lived in a multiunit building and her Board of Probation record listed only the building address and not the apartment number, id. at 723 n. 5, but the search warrant affidavit demonstrated how officers had nonetheless determined in which unit the defendant resided. First, the officers observed a light turn on in the third-floor apartment after the defendant returned home from one of the controlled buys. They thereafter located a record of a motor vehicle stop in which the defendant's address was given as “Apt. # 3.” As part of their continuing surveillance, the officers reported that while the car used by the defendant to make her drug deliveries was parked in the driveway, the lights in the third-floor apartment were on. Id. at 724. In addition, “[t]he electricity statement for ... apartment # 3, was in the defendant's name, and the accompanying telephone number was identical to the one that the informant had called during the three controlled purchases.” Ibid. Finally, two officers actually went to the defendant's building and spoke with her, at which time she told the officers that she lived at that address. Ibid.
It was on the basis of this legwork that the Tapia court was able to conclude that it was “immaterial that police never saw the defendant enter or leave the door of apartment no. 3; it was enough that they observed her leaving from and returning to the apartment building.” Id. at 726 n. 9. As the court explained, “[t]he information in the affidavit was undoubtedly sufficient to establish that the defendant lived in the apartment searched. Police surveillance, utility records, police department records, probation department records, and the defendant's own statements indicated that the third-floor apartment, the location searched, was her residence.” Ibid. We do not suggest that the extensive investigative work in Tapia establishes a constitutional minimum, but we note that Bielski's affidavit did not make a remotely comparable showing. Here, the affidavit's sole connection between the defendant and the apartment that was the target of the warrant is that the listed utilities subscriber for the apartment was the father of a woman the defendant was known to date at some indeterminate point in the past.
The occasional presence in the building's vicinity of a vehicle registered to the same man may further support Alvaro's connection to the unit but adds nothing to the defendant's connection to that specific unit.
Starting from that point of reference, it may be a reasonable inference that Katia's father lives in the apartment where he subscribes for utilities and outside of which a vehicle registered to him has been seen. It may also be inferable that Katia may live in the apartment where her father pays the utility bill. There may also be a fair inference that Katia and the defendant are still dating. We also may infer from a reference to a “second-floor apartment” that a multifamily building that spans two street numbers contains only one apartment per floor and so likely has only a handful of apartments. Taken together, it may be a further inferable conclusion that where the defendant is spending time in a building with only a few apartments where his girl friend lives, he is likely spending time in her specific apartment. See Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009) (Kaupp ), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (“An inference drawn from the affidavit, ‘if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable’ ”).
Although these inferential connections may be reasonable and possible in and of themselves, the question is how many such inferences can be linked together before the logical chain from the explicit text of the affidavit is “too attenuated,” Kaupp, supra at 112, to support probable cause. The “basic question” is whether the magistrate “has a substantial basis for concluding” that the item to be located is “probably in the place to be searched;” even a “[s]trong reason to suspect” that contraband will be found there “is not adequate.” Commonwealth v. Upton, 394 Mass. 363, 370 (1985) (Upton ).
We conclude that more was needed here to demonstrate a connection between the defendant and the specific apartment on the second floor. See Erickson, 14 Mass.App.Ct. at 507 (while “a warrant must be read in its entirety and not in a hypertechnical fashion,” courts “cannot, however, overlook the particularity requirement where the presence of criminal activity” in one apartment in a “multiple-occupancy building” “is left to speculation”). Although Bielski's affidavit showed a “strong reason to suspect,” Upton, 394 Mass. at 370, that the defendant's stash would be found in the second-floor apartment, even according due preference to the warrant and reading it with considerable latitude for the drawing of inferences, Clagon, 465 Mass. at 1004 ; Jiminez, 438 Mass. at 218, it did not sufficiently connect the defendant to that specific apartment to establish a “substantial basis” that the drugs would “probably” be there, O'Day, 440 Mass. at 298.
Order allowing motion to suppress affirmed.