Opinion
14-P-731
10-02-2015
COMMONWEALTH v. EDWARD NUGENT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
These are consolidated appeals by the defendant, Edward Nugent, after jury-waived trials from convictions on indictments charging burglary, larceny over $250, and other offenses. The sole question is whether the affidavit in support of the search warrant, approving the installation of a global positioning system (GPS) tracking device on the defendant's vehicle, established probable cause. For the reasons that follow, we conclude that it did, and therefore affirm.
The defendant does not challenge any other aspect of the affidavit or warrant, nor raise any other issue about the use of the GPS tracking device.
Background. In his affidavit, Detective Joseph R. Leeman of the Boston police department described the vehicle on which the tracking device was to be installed as a 1999 red Ford Taurus sedan. The affidavit set forth the registration, plate number, and vehicle identification number for the Ford Taurus. It further stated that the vehicle was registered to the defendant, whose date of birth and mailing address were included.
Detective Leeman confirmed that the defendant owned a 1999 red Ford Taurus sedan as a result of a motor vehicle stop of that car in the vicinity of 700 Dorchester Avenue in South Boston on February 20, 2012. The defendant was seated in the right front passenger seat and the defendant's son, Brian Benevides, was the operator of the vehicle. Detective Leeman's affidavit also stated that he saw the defendant's red Ford Taurus parked outside 24 Bellflower Street in Dorchester "on numerous occasions" even though it was registered to the address of 32 Snell Street in Holbrook.
Detective Leeman's affidavit explained that the police suspected that the defendant's vehicle was used in a series of break-ins at commercial businesses between September 11, 2011, and February 20, 2012. Detective Leeman first referenced a break-in at the Boloco restaurant, at 1080 Boylston Street in Boston, on January 28, 2012. Surveillance video from that location at 3:42 A.M. shows a red Ford Taurus sedan, described by the affiant as "identical" to the defendant's vehicle, being driven along the alleyway behind the restaurant, and then parked a short distance away from the rear entrance to the restaurant. The affiant added that the red Ford Taurus shown in the surveillance video has "the same identical nonfactory rims" as the vehicle owned by the defendant.
The surveillance video from outside Boloco also shows three individuals exit from the red Ford Taurus and then commit the actual break-in. The perpetrators are then seen carrying a safe out of the restaurant. Eventually, the safe is loaded into the trunk of the red Ford Taurus. The affiant alleged that one of the three perpetrators "ha[d] the same height, weight, and physique" as the defendant. The safe was recovered two days later in Moakley Park in South Boston. A week later, an identified civilian witness told detectives of a conversation he had had with one of the suspects as he stood against the red Ford Taurus and just before he left the area on the morning of the Boloco break-in. According to Detective Leeman, the witness identified the man from a photo array as "Michael Nugent."
Detective Leeman also detailed the events surrounding a break-in at the Flour Bakery, 1595 Washington Street in Boston, on February 12, 2012. Video surveillance from that incident shows three individuals approach the bakery on foot and break in through the front door. Two of the individuals remain inside the bakery for about ninety seconds, then emerge carrying a safe. Additional video surveillance from February 11, 2012, shows two white males wearing hooded sweatshirts who appear to be checking the strength of the bakery's front door. The affiant wrote that one of these two males was "of the same height, weight, and physique" as the defendant. Four days later, a passerby near 161 Granite Avenue in Dorchester discovered the safe that had been removed from the Flour Bakery. That safe and another safe were recovered in a nearby location. The other stolen safe was subsequently identified as one stolen from The American Provision Company, on East Broadway in South Boston, on February 6, 2012.
The affiant described a third break-in at the Flour Bakery, located at 190 Massachusetts Avenue in Cambridge, on September 12, 2011. Two suspects seen on a surveillance video enter and exit the establishment carrying a large blue recycling bin. Although the safe inside the bakery was "disturbed," nothing of value was taken during this incident. However, the affidavit stated that the video surveillance shows the two suspects walking away from the bakery onto Albany Street and then entering "a red Ford Taurus." Detective Leeman identified these suspects as Bruce Donaldson and John Joyce. The affiant stated that "[o]ne minute after suspect Donaldson and suspect Joyce are observed entering the vehicle, an individual with the same height, weight, and physique as [the defendant] entered the operator's seat of the motor vehicle and drove away from the area." Based on the size and shape of the vehicle, and its windows, headlights, and taillights, the affiant stated that he believed this vehicle to be a 1999 Red Ford Taurus sedan, featuring "the same distinctive nonfactory rims as observed during the Boloco [r]estaurant break-in."
Detective Leeman's affidavit further described a fourth break-in at the Toro restaurant, at 1704 Washington Street in Boston, on February 19, 2012. Video surveillance from that incident shows the suspects break and enter a locked rear door and leave with a safe. Police recovered that safe the following day in the Savin Hill section of Dorchester.
The affidavit also stated that the defendant's vehicle, in which there were four occupants, was stopped for a traffic infraction and the vehicle's registration was queried by Detective Leeman. On February 19, 2012, and again on February 20, 2012, the Wayland police department conducted queries involving the red Ford Taurus. According to the Wayland police department, there was a break-in at an automotive store at 8:49 A.M. on February 19, 2012, about half a mile from where the defendant's vehicle was queried the second time.
Discussion. Our assessment whether there was probable cause for the issuance of the search warrant is guided by familiar principles: we confine ourselves to the "four corners of the affidavit" and read it as a whole in a commonsense manner. See, e.g., Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). Although our review of the motion judge's decision is de novo, see Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), it is our duty, no less than the motion judge's, to give "considerable deference to the magistrate's determination of probable cause." Commonwealth v. Walker, 438 Mass. 246, 249 (2002). The question in a case such as this is whether there was a "substantial basis" to believe that tracking the movement of the defendant's Ford Taurus over a several-week period by means of a GPS device would produce evidence of its involvement in commercial break-ins, which in turn would assist the police in identifying the perpetrators. Commonwealth v. Upton, 394 Mass. 363, 370 (1985). "[T]he test is probable cause, not certainty." Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 826 (2012). Finally, "[t]he resolution of doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants." Commonwealth v. Germain, 396 Mass. 413, 418 (1985), quoting from United States v. Ventresca, 380 U.S. 102, 108-109 (1965).
A commonsense reading of Detective Leeman's affidavit, drawing all reasonable inferences from the facts and viewing it as a whole, is that the defendant's Ford Taurus had been used by a group of individuals -- one of whom matched the physical characteristics of the defendant -- over the preceding five months to commit a series of commercial break-ins. Detective Leeman made firsthand comparisons between the vehicle owned by the defendant and the red vehicle in several surveillance videos, concluding that they were "identical." Beyond noting the two vehicles' similarities in color, make, and model, the affiant noted that each car had wheels with "distinctive rims." The detective's conclusion was based on observations and comparisons that a police officer, no less than a lay witness, is qualified to make. See Commonwealth v. Cappellano, 392 Mass. 676, 679 (1984), quoting from Mielke v. Dobrydnio, 244 Mass. 89, 92 (1923) ("A witness may state the result of his observation, although it involves in some measure his opinion or judgment"). Cf. Commonwealth v. O'Connell, 438 Mass. 658, 663 (2003) (jurors are competent to perform handwriting comparisons themselves, without expert testimony). These observations, combined with the pattern of activity involved in several of the break-ins (through the rear entrance and involving several persons and the removal of a safe), suggested a continuing course of criminal activity involving the use of the defendant's vehicle. Moreover, the fact that four different safes from the break-ins were recovered in areas in close proximity to the defendant's home bolsters the finding of probable cause.
Judgments affirmed.
By the Court (Vuono, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 2, 2015.