Opinion
20-P-938
01-26-2022
COMMONWEALTH v. Earl MEJIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of trafficking in cocaine, unlawful possession of a large capacity firearm, and possession of a firearm during the commission of a felony. Prior to trial, the defendant filed a motion to suppress evidence that was found during the execution of two search warrants, one that authorized the search of the defendant's person and another that authorized the search of an apartment located in Dorchester where the defendant allegedly lived with his girlfriend. A judge of the Superior Court denied the motion and the evidence, which included the cocaine and firearm on which the convictions were based, was introduced at trial. On appeal, the defendant no longer challenges the search of his person, but renews his challenge to the search of the apartment. At issue is whether the affidavit submitted in support of the search warrant established probable cause. We conclude that the affidavit in this case did not do so and, therefore, the evidence seized during the search of the apartment should have been suppressed.
The defendant also claims that his convictions should be reversed based on a number of alleged trial errors and the failure of the Commonwealth to prove constructive possession of the contraband. Given our conclusion, it is not necessary to address these issues.
Because the defendant does not challenge the search of his person, we need not address whether that search was supported by probable cause.
1. Standard of review. We review the question whether there was probable cause to issue a search warrant de novo. Commonwealth v. Hart, 95 Mass. App. Ct. 165, 167 (2019). Our inquiry "begins and ends with the four corners of the affidavit" (quotation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). Although "[t]he probable cause necessary to support the issuance of a search warrant does not require definitive proof of criminal activity," Commonwealth v. Keown, 478 Mass. 232, 238 (2017), cert. denied, 138 S.Ct. 1038 (2018) (quotation omitted), "(a)n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Id., quoting Commonwealth v. McDermott, 448 Mass. 750, 767, cert. denied, 552 U.S. 910 (2007).
2. The search warrant application. The search warrant was issued based on the affidavit of Omar Borges, a Boston police officer with extensive training and experience in controlled substance and firearm investigations. At the time he submitted the affidavit, Borges was assigned to the Citywide Drug Control Unit (CDCU). He averred that, "Within the last 30 days," members of the CDCU received information from a confidential informant (CI) regarding the illegal possession of a firearm by a person known to the CI as "Earl." Borges explained that the CI is a carded Boston police informant and has provided information in the past that led to several successful drug and firearm investigations. The CI relayed that he observed Earl "within the last 30 days" in possession of a small black semiautomatic firearm inside apartment number one at 40 Oldfields Road in Dorchester. The CI stated that Earl "removed the firearm from a discreet location on his body and held it with his right hand." The CI also described the car Earl drove (a grey minivan) and told Borges that Earl lived in the apartment with his girlfriend, but the CI did not know the girlfriend's name.
Borges then reviewed records maintained by the Registry of Motor Vehicles (RMV) and learned that the car described by the CI was registered to Earl Mejia at a different address in Boston. Borges obtained a photograph of Mejia from the RMV and showed it to the CI, who identified the person depicted as the man he knew as "Earl."
Through additional investigation, Borges learned that an individual by the name of Melissa Rivera has a Massachusetts driver's license that lists 40 Oldfields Road, Apartment 1 as her residential address. In addition, utility records obtained by Borges revealed that Rivera has an NSTAR energy account associated with that address. Borges showed the CI a photograph of Rivera, which he obtained from the RMV, and the CI identified Rivera as Earl's "live-in girlfriend." Borges further determined that Mejia could not lawfully own a firearm and did not have a firearm identification (FID) card.
Next, Borges conducted surveillance of the premises. He observed Rivera drive up in a car registered to her at the above address and enter the apartment. Approximately one hour later, Borges saw Mejia leave the residence and drive off in his car.
The affidavit does not set forth the date or time of day/night the surveillance was conducted.
Based on this information and his training and experience, Borges alleged that there was probable cause to believe that evidence of the crime of unlawful possession of a firearm would be found on Mejia's person or within the apartment located at 40 Oldfields Road, Apartment 1. An assistant clerk magistrate determined that probable cause existed and issued the search warrants on December 15, 2015.
Although not pertinent our analysis, we note that the evidence presented at trial established that the warrants were executed the following day "at approximately 12:00 noon." The defendant was stopped and searched after he left the premises in his car. The police recovered the keys to the apartment, two cellular telephones and approximately $2,000 in cash. The police then went to the apartment and used the keys they had obtained from the defendant to enter the premises. During the search, the police found a bulletproof vest, multiple safes containing RMV documents in the defendant's name, and more than $4,700 in cash located in a bedroom that appeared to be used by the defendant and Rivera. They also retrieved a knapsack from a toy car in the garage that contained cocaine, a firearm, digital scales, baggies and scissors.
3. Analysis. The defendant argues that the search warrant was not supported by probable cause because the affidavit failed to establish a sufficient nexus between the alleged criminal activity (unlawful possession of a firearm) and the premises to be searched (40 Oldfields Road, Apartment 1). More specifically, he claims that the information contained in the affidavit did not adequately establish his connection to the apartment. He also argues that the CI's one-time observation of him with a firearm thirty days before the warrant issued was stale information that could not support a finding of probable cause. Last, he asserts that the warrant was impermissibly broad.
The CI's reliability and basis of knowledge are not contested.
We agree with the defendant that the affidavit contains insufficient information from which the magistrate could reasonably conclude that the defendant's connection to the apartment was such that it was likely he would store a firearm there. We acknowledge, as the Commonwealth asserts, that it is reasonably likely that individuals who own or possess firearms will keep them on their person or in their residence. See generally Commonwealth v. James, 424 Mass. 770, 778 (1997) ; Commonwealth v. Suggs, 100 Mass. App. Ct. 102, 107-108 (2021). Here, however, it was not reasonable to conclude that the defendant resided at the apartment or that he had a substantial connection to it. Consequently, it was not reasonable to conclude that the firearm would be found there.
According to the affidavit, the defendant was seen at the premises on two occasions. The CI observed him there once about thirty days before the warrant issued, and Officer Borges observed him leave the premises on one unspecified day or night during the course of the investigation. These two observations did not establish a "substantial basis" for concluding that the defendant resided at the apartment or that he was keeping a firearm or related items there. Commonwealth v. Smith, 57 Mass. App. Ct. 907, 909 (2003). Contrast Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475 (2020), where, although an affidavit submitted in support of the search warrant did not affirmatively establish that the premises to be searched for evidence of a drug distribution scheme was the defendant's primary residence, it established a substantial connection between the defendant and the premises where the police (i) observed a vehicle registered to the defendant at the address in question parked outside overnight, and (ii) on two occasions saw the defendant either depart from and/or return to the premises after selling drugs to a confidential informant. Id. at 482-483.
Furthermore, although the CI reported that the defendant lived at the address in question with his girlfriend, who apparently did live at the apartment, the police subsequently determined that the defendant's driver's license listed a different residential address. Had the police investigated this discrepancy further, there might have been a different outcome.
We express no view on whether the observation of the firearm by the CI thirty days before the warrant issued was stale information. See generally Hart, 95 Mass. App. Ct. at 167-169.
Conclusion. So much of the order as denied the defendant's motion to suppress evidence seized under the warrant for the premises is reversed. Because the defendant's convictions on indictments 1, 2, and 4 derive almost entirely from the evidence that should have been suppressed, those judgments are vacated and the verdicts are set aside. Smith, 57 Mass. App. Ct. at 909. The case is remanded to the Superior Court for entry of an order allowing the defendant's motion to suppress evidence seized from the premises and to determine whether the Commonwealth has enough evidence to reprosecute the defendant, a decision we leave to the district attorney and the trial court. See Commonwealth v. Torres, 424 Mass. 153, 164 (1997) ; Commonwealth v. Kirouac, 405 Mass. 557, 564 (1989).
So ordered.
reversed in part; vacated in part and set aside; remanded