Opinion
22-P-521
01-19-2023
COMMONWEALTH v. AUSTIN MENDES.
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 2 3.0
The Commonwealth appeals from an order of a District Court judge allowing in part the defendant's motion to suppress evidence seized during two separate searches of his apartment. Because we agree with the motion judge that the affidavit authored in support of the search warrant application at issue failed to establish a nexus between the apartment and the criminal activity under investigation, we affirm.
Background.
We summarize the facts contained in the affidavit in support of the search warrant at issue because our de novo review of a search warrant application begins and ends with the four corners of the affidavit supporting it. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). During an investigation into a series of dirt bike thefts across Bristol County, Detective Shawn Robert of the New Bedford police learned that on September 1, 2019, a 1986 Honda CR500 dirt bike was stolen from a garage in Dartmouth. Detective Robert later received global positioning system (GPS) data from the electronic monitoring program showing that a certain individual (informant) subject to monitoring was present at the Dartmouth address at the time of the theft.
On October 17, 2019, during an interview with Detective Robert, the informant admitted to stealing the bike and bringing it to 206-208 Sycamore Street in New Bedford. While at that address, the informant observed a stolen vehicle being disassembled, followed by its parts being placed into a shipping crate. The informant stated that the stolen Honda CR500 would also be broken down and shipped overseas. The informant further reported that similar stolen dirt bikes were brought to the property and disassembled in the basement.
Following this interview, Detective Robert obtained a warrant to search the basement of the property, which is described in the affidavit as a two-family residence with the numbers 206 and 208 affixed to the front of the building above each door, respectively. While surveilling the property in preparation to execute the warrant, officers observed a vehicle back out of the driveway. The vehicle was registered to the defendant and had a revoked registration and an expired inspection sticker. Officers initiated a traffic stop of the vehicle.
As officers spoke with the driver, the defendant (who was not the driver) approached the scene and asked what was going on. Detective Robert explained the reasons for the traffic stop and asked the defendant if he resided at the property and had access to the basement; the defendant stated that he did. Detective Robert then escorted the defendant back to the 206-208 Sycamore address and gave him a copy of the search warrant. The defendant made his way to the front door of the first-floor apartment, where he lived (208 Sycamore Street), prompting Detective Robert to follow him. As the defendant inserted a key into the door, he asked Detective Robert why he was following him. Detective Robert advised the defendant that it was to ensure that he did not interfere with the search of the basement. The defendant then stepped back from the door and walked to the rear of the property.
Once in the back, the defendant entered the property and ensured that the rear door to the first-floor apartment was locked. He then brought Detective Robert and other officers on scene to the basement. Upon entering the basement, Detective Robert observed a 1986 Honda CR500 leaning up against a column. Next to the bike were rolls of industrial shrink wrap and an open toolbox with tools. Also present were several small pallets leaning up against a nearby wall. After running the vehicle identification number to confirm that the dirt bike was stolen, officers arrested the defendant. The defendant admitted that he knew the dirt bike was in the basement and stated that he did not have any papers for it.
Based on this information, Detective Robert sought and obtained the search warrant that is the subject of this appeal. This second warrant authorized a search of the defendant's apartment for items associated with the theft of the 1986 Honda CR500, including "all stolen parts" from the bike and "other stolen vehicle parts, [and] tools used in the disassembly, packaging of the stolen vehicles and the parts." The warrant also authorized a search for materials related to the shipping and packaging of stolen goods, including shipping labels, manifests, and other related items. While executing the second warrant, police observed numerous bags of marijuana in the defendant's apartment.
Following this discovery, Detective Robert sought and obtained a third warrant, which authorized a search of the defendant's apartment for evidence of drug possession and distribution. The ensuing search of the defendant's apartment revealed a firearm, ammunition, about six pounds of marijuana, and oxycodone pills.
On October 18, 2019, the defendant was charged with two counts of receiving stolen property and six counts related to the unlawful possession of the firearm, ammunition, marijuana, and oxycodone. The defendant moved to suppress the evidence seized from his apartment, arguing that the three search warrants that issued were not supported by probable cause. After a nonevidentiary hearing on the defendant's motion, the District Court judge issued a written decision denying the motion as to the first warrant, which authorized the search of the basement. The motion judge allowed the defendant's motion as to the second warrant, reasoning that the affidavit failed to establish probable cause that evidence of a crime would be found in the defendant's apartment. The motion judge also suppressed all evidence seized pursuant to the third warrant, as that warrant issued based on observations made during the execution of the second warrant. This appeal followed.
Discussion.
The Commonwealth contends that the motion judge erred in concluding that the information in Detective Robert's affidavit failed to establish probable cause to believe that evidence of a crime would be found in the defendant's apartment at 208 Sycamore Street. We disagree.
"Where the location to be searched is a residence, probable cause exists only if there is specific information in the search warrant affidavit to show a 'sufficient nexus' between the criminal activity and the residence" (citation omitted). Commonwealth v. Foster, 471 Mass. 236, 241 (2015). "In order to satisfy the nexus requirement, the affidavit must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises" (quotation and citation omitted) . Id. at 241-242.
Here, the affidavit established that the informant stole the Honda CR500 dirt bike and brought it to the 206-208 Sycamore address, where it was stored in the basement by an unidentified individual. The affidavit also established that the defendant lived in one of the two units at the property, had access to the basement and knew the dirt bike was stored there, and could not provide proof of ownership. The Commonwealth argues that this information, taken together with the defendant's behavior (locking his apartment door), his apartment's proximity to the basement, and the discovery of apparent disassembly and shipping materials in the basement suggests that the defendant possessed the stolen dirt bike and was involved in the "steal-and-sell" operation under investigation. From that, the Commonwealth argues that there was a substantial basis to believe that evidence related to the steal-and-sell operation and the stolen dirt bike would be found in the defendant's apartment. This chain of inferences, however, is simply "too attenuated" to supply probable cause. Commonwealth v. Kaupp, 453 Mass. 102, 112 (2009) .
The affidavit did not establish that the defendant knew the bike was stolen or that he had exclusive access to the basement. Nor did it contain information linking the defendant's apartment to the stolen dirt bike or the suspected large-scale theft operation. See Commonwealth v. Alexis, 481 Mass. 91, 102 (2018) ("Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search the person's residence" [citation omitted]). Put another way, the affidavit provides no explanation why Detective Robert believed that evidence of a crime would be found inside the apartment. See Commonwealth v. Taglieri, 378 Mass. 196, 199-201, cert, denied, 444 U.S. 937 (1979) (facts meaningful to trained law enforcement officer but not apparent from common knowledge and experience must be explained by disclosing both the facts and the officer's inferential process). While the circumstances here may have established a "[s]trong reason to suspect" that the defendant's apartment contained evidence of a crime, that is insufficient. Foster, 471 Mass. at 242, quoting Commonwealth v. Upton, 394 Mass. 363, 370 (1985). The evidence seized from the defendant's apartment during the execution of the second and third search warrant was properly suppressed.
Order allowing in part motion to suppress affirmed.
The panelists are listed in order of seniority.