Opinion
CRIMINAL NO. 00-10208-PBS
May 21, 2003
MEMORANDUM AND ORDER
INTRODUCTION
Before trial, defendant Jeffrey Pina moved to suppress evidence seized during a police search of his apartment on January 11, 2002. The search was conducted pursuant to a search warrant issued by the Brockton District Court Clerk Magistrate. In his motion to suppress, Pina contended that the search warrant did not comply with the requirements of the Fourth Amendment, in two respects: (1) the police affidavit on which the warrant was based did not provide probable cause to authorize the search, because it failed to establish a nexus between the alleged criminal activity and Pina's apartment, and (2) the warrant did not describe the items to be seized with sufficient particularity. After hearing on January 24, 2003, the Court orally DENIED the motion to suppress. Now I state my reasons in writing.
DISCUSSION
I. The Nexus Requirement
The First Circuit has summarized the Fourth Amendment's nexus requirement for search warrants:
A warrant application must demonstrate probable cause to believe that (1) a crime has been committed — the "commission" element, and (2) enumerated evidence of the offense will be found at the place to be searched — the so-called "nexus" element. See United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996). With regard to the "nexus" element, the task of a magistrate in determining whether probable cause exists is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999).
Detective Thomas Keating's affidavit demonstrated a fair probability that contraband or evidence of drug trafficking would be found at Pina's apartment at 37 Foster Street in Brockton. In particular, the affidavit alleged:
1. On December 27, 2001, a confidential informant told Keating that Pina was selling crack cocaine out of his car, a brown Volvo. (Aff. at 1.) The Volvo's registration listed Pina as the owner and 37 Foster Street as his address. (Id. at 4.) According to Brockton police records, Pina had earlier told the police he lived at 37 Foster Street. (Id. at 5.)
2. Under the supervision of Keating, the confidential informant made two controlled purchases of crack from Pina, on January 1, 2002 and January 7, 2002. (Id. at 2, 4.) After each purchase, the informant gave the crack to the Brockton police, who positively identified the substance. (Id.) The affidavit does not describe the locations of the drug transactions, but does note that after both transactions back-up police units followed Pina to 37 Foster Street. (Id.)
3. On January 5, 2002, Brockton detectives surveilled 37 Foster Street. (Id. at 2-3.) On several occasions that night, the Volvo left the house and went to the Brockton Car Wash's parking lot. (Id. at 3.) At the parking lot, an unknown individual walked over to the Volvo's driver's-side window and then left within a minute. (Id.) After each such incident, the Volvo returned to 37 Foster Street. (Id.)
4. On January 6, 2002, the Brockton police again surveilled 37 Foster Street. (Id. at 3-4.) At approximately 6:45 p.m., the Volvo left the house and went to the intersection of Winthrop Street and Main Street in Brockton. (Id. at 3.) The driver, a black male, exited the vehicle and met a white male on foot. (Id.) After about a minute, the parties went in opposite directions, with the black male walking back toward the Volvo. (Id.) On his way to the car, a white female walked up to him. (Id.) After about forty-five seconds, she walked away. (Id.) The Volvo returned to 37 Foster Street, and the driver entered the building. (Id. at 3-4.)
Pina argues that the affidavit's failure to state that he "directly" returned to 37 Foster Street is telling, and gives rise to an inference that Pina stopped elsewhere, disrupting any nexus between the drug deals and Pina's apartment. The Court rejects this argument as an overly creative reading of the affidavit, which does not describe Pina stopping anywhere.
The affidavit does not indicate whether the same person went to the Volvo's driver's-side window each time.
Reading these allegations in a common-sense fashion, the Brockton District Court Clerk Magistrate had good cause to believe (1) Pina had been confirmed as a crack dealer who lived at 37 Foster Street, (2) Pina had returned to 37 Foster Street after both of his drug sales to the confidential informant, (3) the Brockton police had observed brief meetings between Pina and other individuals, at which drugs may have been sold, and (4) Pina went from 37 Foster Street to these meetings, and then returned back to 37 Foster Street after these meetings. While the affidavit does not describe surveillance within 37 Foster Street, Pina's presence at 37 Foster Street before and/or after each of the described incidents gave rise to a fair probability that Pina had placed inculpatory evidence (such as cocaine, money from drug sales, and records of drug transactions) in the building.
Indeed, in United States v. Feliz, the First Circuit rejected the same nexus argument pressed by Pina, on similar facts. See 182 F.3d at 83-88. In Feliz, Special Agent John Dumas of the Maine Drug Enforcement Agency received information from a confidential informant, who stated that he had purchased drugs from Yanokura Feliz for the past twelve years. Id. at 84. Under the supervision of the Maine DEA, the confidential informant made two controlled purchases of drugs from Feliz. Id. Soon thereafter, a cooperating defendant in another case told Agent Dumas that Feliz had talked with him about a large cocaine transaction. Id. at 84-85. Based on these facts, Agent Dumas sought and received a warrant to search Feliz's apartment at 401 Cumberland Avenue in Portland, Maine. Id. The search revealed approximately 516 grams of cocaine, and Feliz was charged with possession with intent to distribute. Id. at 85.
Prior to trial, Feliz challenged the search on the ground that "the facts set forth in Agent Dumas's affidavit failed to establish a `nexus' between the drug trafficking information and his apartment." Id. at 85-86. The district court agreed, but nonetheless admitted the evidence obtained in the search, on the ground that the "good-faith exception" to the exclusionary rule applied. Id. at 86. See generally United States v. Leon, 468 U.S. 897, 905-26 (1984) (setting out the standards for the good-faith exception). Feliz pleaded guilty, "reserving his right to challenge on appeal the denial of the motion to suppress." Feliz, 182 F.3d at 86.
On appeal, the First Circuit held that Agent Dumas's affidavit had provided a sufficient nexus between the alleged crimes and Feliz's apartment:
The affidavit indicated that Felix resided in apartment #1006 at 401 Cumberland Avenue, Portland. No other residence or drug-dealing headquarters of his was identified in the affidavit. It followed that a likely place to seek to find incriminating items would be Feliz's residence. See, e.g., United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (stating that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live"). If he did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his apartment, where else would he keep them? . . .
The nexus between the objects to be seized and the premises searched need not, and often will not, rest on direct observation, but rather "can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime]. . . ." United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). In the case of drug peddlers like Feliz, other circuits have upheld searches of the suspect's residence in circumstances somewhat similar to these. See Angulo-Lopez, 791 F.2d at 1399 (holding that direct evidence that contraband or evidence indicating drug trafficking is at a suspect's residence is not essential to establish probable cause); United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam) (observations of drug trafficking occurring away from suspect's residence can provide probable cause for search of house); United States v. Williams, 974 F.2d 480, 482 (4th Cir. 1992) (per curiam) (affidavit establishing that known drug dealer currently resided in motel room held sufficient to establish probable cause that drug paraphernalia would be found in room); United States v. Cruz, 785 F.2d 399, 406 (2nd Cir. 1986) (probable cause for search of drug dealer's apartment even though defendant was not seen using apartment). We do not find it unreasonable for the issuing judge in this case to have relied upon her common sense, buttressed by affiant's opinion as a law enforcement officer, that Feliz would be likely to keep proceeds from his drug trafficking and records relating to drug transactions at his apartment.
Id. at 88.
Pina's attempts to distinguish Feliz are unpersuasive. First, Pina argues that Feliz was a "long-time trafficker," unlike Pina. But while evidence of long-time trafficking may increase the odds that inculpatory material exists at a dealer's residence (because, presumably, such material accumulates over time), lack of evidence of long-time trafficking does not eliminate the nexus. Second, Pina argues that Agent Dumas directly observed one of the controlled purchases from Feliz, but Detective Keating's affidavit did not explicitly state that he observed his confidential informant making the two controlled buys from Pina. But Keating's affidavit provided certain details that implied he observed the transactions (i.e., the proximity of his car to the crack purchases), although to be sure, there is no indication that he identified Pina. In any event, Keating's supervision of the controlled buys was amply sufficient to confirm that cocaine sales had taken place. Third, Pina contends that Keating's affidavit failed to provide "expert opinion" concerning the practices of drug dealers with respect to keeping inculpatory material at their residences. But Keating's affidavit did discuss his extensive narcotics experience — including participating in the execution of hundreds of search warrants involving narcotics — and the magistrate could reasonably have inferred that Keating's background informed Keating's request for a warrant. Finally, the Court notes one respect in which the warrant was stronger here than in Feliz: Detective Keating sought the warrant on January 8, 2002, within a week of the two controlled buys and the other meetings observed by the police, and executed the warrant on January 11, 2002; in contrast, Agent Dumas did not seek a warrant until three months after the drug transactions described in his affidavit. See id. at 84-85, 87.
In sum, the First Circuit's decision in Feliz firmly supports the Court's judgment that Detective Keating's affidavit demonstrated a sufficient nexus between Pina's alleged drug trafficking and his residence at 37 Foster Street. As an alternative holding, the Court finds that if the nexus requirement was not satisfied, the good-faith exception to the exclusionary rule applied. See Leon, 468 U.S. at 905-926; Feliz, 182 F.3d at 88-89 ("As in the totality of circumstances here there was a sufficient showing of probable cause, we see no need to pursue the issue of good faith under Leon, although we have no doubt the district court was well justified in applying the Leon criteria in this case had that been necessary.").
II. The Particularity Requirement
Pina briefly argues that the warrant to search Pina's apartment did not describe the items to be seized with sufficient particularity. See generally United States v. Fuccillo, 808 F.2d 173, 175-76 (1st Cir. 1987) (describing the Fourth Amendment's requirements as to particularity). This argument must be rejected for two reasons. First, the warrant authorized the Brockton police to search for "any monies or drug paraphernalia," a phrase which embraced — with sufficient particularity — a number of the items seized by the detectives, including the cocaine packets, the scales, the plastic bags, and the bundles of cash.
Second, to the extent certain seized items fell outside the scope of the warrant, their seizure was authorized by the "plain-view" doctrine. See Horton v. California, 496 U.S. 128, 130-42 (1990) (providing the standards for the plain-view doctrine). As the First Circuit has noted, the plain-view doctrine has two requirements:
First, "an essential predicate to [the seizure of evidence not within a warrant's purview is] that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton, 496 U.S. at 136, 110 S.Ct. 2301. Second, the doctrine requires that the evidence's incriminating character be "immediately apparent" to the officer. Id.
United States v. Hamie, 165 F.3d 80, 82 (1st Cir. 1999). The Brockton police were specifically authorized to search any place that monies or drug paraphernalia could be secreted — which effectively gave them legal license to search the entire apartment. In the course of their search, they discovered certain items whose incriminating character was immediately apparent, including items (i.e., the gun, the bullets, and the brass knuckles) that may have been used in connection with Pina's drug-dealing, and items (e.g., Pina's ID and certain paperwork) that could be used to establish Pina's constructive possession of the contents of 37 Foster Street. In short, both elements of the plain-view test were satisfied.
ORDER
Defendant Jeffrey Pina's Motion to Suppress Evidence (Docket No. 22) is DENIED.