Opinion
19-P-1594
12-30-2020
COMMONWEALTH v. RAFAEL CORTES.
NOTICE: 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 23.0
A jury convicted the defendant of possession with intent to distribute heroin, morphine, and suboxone. The convictions stemmed from an early morning execution of a search warrant on an apartment. On appeal the defendant challenges the denial of his motion to suppress, the denial of his motions to disclose an informant's identity, and the sufficiency of the evidence. We affirm.
1. Motion to suppress. The defendant argues that the warrant affidavit did not provide probable cause to search the target residence and did not justify a no-knock entry. Our probable cause determination "always begins and ends with the 'four corners of the affidavit.'" Commonwealth v. Anthony, 451 Mass. 59, 68 (2008), quoting Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). To establish probable cause, "the affidavit and reasonable inferences drawn therefrom 'must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.'" Commonwealth v. Clagon, 465 Mass. 1004, 1004 (2013), quoting Commonwealth v. Escalera, 462 Mass. 636, 642 (2012).
The affidavit, which was prepared by an experienced narcotics investigator, first detailed information received from a confidential source (CS-1) and three confidential informants (CI-1, CI-2, and CI-3). CS-1 informed police that a red-headed Hispanic male who went by "Red" and another Hispanic male who went by "Dre" were dealing drugs from the top-floor front apartment of 40 Nelson Street in Quincy. CI-1 identified a photograph of the defendant as the dealer CI-1 knew as Red, and from whom CI-1 had previously purchased drugs at 40 Nelson Street. CI-2 informed police that a "light skinned Hispanic male" with little or no hair named Dre was selling drugs from "the front apartment that faces Nelson Street." CI-3 informed police that a Hispanic male and white female, from whom CI-3 had purchased drugs in the past, were living in and selling drugs from the top-floor front apartment of 40 Nelson Street. CI-3 also provided detailed physical descriptions of both individuals.
Police knew Red to be the defendant and were familiar with him from a prior arrest for possession of cocaine with intent to distribute and altering a motor vehicle document.
The affidavit then described surveillance conducted on the top-floor front apartment during the week before police applied for the warrant. On multiple occasions officers saw what they believed to be drug transactions between known drug users and the unnamed Hispanic male and unnamed white female who were the targets of the investigation. Specifically, officers observed numerous instances where the unnamed white female left the top-floor front apartment, made exchanges with known drug users, and then returned to the apartment; where known drug users briefly met with the unnamed Hispanic male on the apartment balcony; and where known drug users entered the apartment and left after a short time. At one point officers saw the defendant carrying groceries into the apartment with the unnamed white female and another person.
Additionally, within seventy-two hours of applying for the warrant, police supervised a controlled purchase of cocaine, which CI-3 arranged by telephone. Officers searched CI-3 for money and contraband, provided CI-3 with money for the transaction, and followed CI-3 to 40 Nelson Street. Officers observed CI-3 enter the top-floor front apartment and leave after a short time. They then followed CI-3 to a prearranged location, where CI-3 handed over cocaine that CI-3 said was purchased from the unnamed Hispanic male.
These averments provided probable cause to search the target residence. Four informants, known to police, described a drug distribution operation being run out of 40 Nelson Street. Two informants specifically identified the top-floor front apartment as the base of the operation, and the tips corroborated each other in several respects. Furthermore, in their independent surveillance, police observed on multiple occasions what they believed to be drug transactions conducted from the top-floor front apartment. See Commonwealth v. Spano, 414 Mass. 178, 185 (1993) (police observations of known drug users visiting premises corroborated informant tip). Police also supervised the controlled purchase, during which CI-3 entered the top-floor front apartment and left shortly thereafter with the amount of cocaine that CI-3 had been instructed to purchase. See Commonwealth v. Mora, 82 Mass. App. Ct. 575, 577 (2012), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 427-428 (1995) ("It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant"). These direct police observations and the controlled purchase established probable cause and compensated for whatever deficiencies existed under either prong of the Aguilar-Spinelli test. See Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 482-485 (2018); Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926 (2004).
The affidavit stated that CS-1 and CI-2 provided information in the past that led to the arrests of individuals for narcotics-related charges.
See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
The affidavit also justified a no-knock entry. The interests of "avoiding the destruction of evidence and increasing officer safety" can overcome the common-law requirement that police knock and announce their presence. Commonwealth v. Silva, 94 Mass. App. Ct. 270, 275 (2018), quoting Commonwealth v. Perez, 87 Mass. App. Ct. 278, 282 (2015). Here, according to the affidavit, the apartment's unobstructed view of the street increased the possibility of detection and, consequently, the possibility of destruction of drug evidence. The narrow wooden staircase leading to the front door also increased the likelihood of danger to officers if there was a confrontation and would make it difficult for them to retreat. In addition, the defendant, whom police saw at the apartment and believed was staying there, had been convicted of a federal firearm possession charge and was listed at the time as "[W]anted" and "Armed and Dangerous" by the United States Marshal Service for a "[p]robation [v]iolation." These averments sufficiently supported the no-knock aspect of the search warrant. See Silva, supra at 274-275.
2. Identity of CI-3. "The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth [and] serves a substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity. The privilege, which is not absolute, should be respected as far as reasonably possible consistent with fairness to a defendant." Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989), quoting Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981). "[T]he burden is on [the] defendant to demonstrate that an exception to the privilege ought apply, that is, that the disclosure would provide him with 'material evidence needed . . . for a fair presentation of his case to the jury.'" Commonwealth v. Shaughessy, 455 Mass. 346, 353-354 (2009), quoting Commonwealth v. Lugo, 406 Mass. 565, 574 (1990).
We discern no error in the denial of the defendant's pretrial motions for disclosure of CI-3's identity. CI-3's involvement was limited to providing information to support issuance of the search warrant; CI-3 did not participate in or observe events underlying the possessory charges. See Brzezinski, 405 Mass. at 408 (judge did not err by denying request for informant identity where "informant did not participate in the crime charged, and was not present during the execution of the search warrant or seizure of the cocaine and cocaine paraphernalia" but "acted only as a 'tipster'"). Although the defendant posits that CI-3 could have testified that the defendant was not present during the controlled purchase, the defendant was not charged with selling drugs, and he knew the identities of other buyers who could have testified that he was not the person who sold them the drugs. Moreover, the defendant elicited on cross-examination of a detective that police did not see him participate in the drug transactions. CI-3's identity was thus not essential to a fair presentation of the defense to the jury. See Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 36 (2002), cert. denied, 538 U.S. 1064 (2003).
3. Sufficiency of the evidence. The jury could have found the following facts. During their surveillance of 40 Nelson Street, police observed known drug users purchase drugs on several occasions from the top-floor apartment. Police executed the search warrant at approximately 5 A.M. and discovered that the "door was fortified with two-by-four beams, brackets, and nails and screws," requiring at least one minute to break past the barriers. After gaining entry, police encountered three occupants, including the defendant, who was alone in one of the two bedrooms.
A search of the bedroom occupied by the defendant uncovered six strips and eight tablets (and a tablet fragment) of suboxone. Police also found a digital scale on top of a bureau, a roll of plastic sandwich bags, plastic sandwich bags with missing corners in the trash can, $850 separated into eight or nine folds in varying denominations, a cuff sheet, and five cell phones in various areas of the room in plain view. In the other bedroom, police found twelve knotted bags of brown powder, later confirmed to contain heroin, and a plastic bag with sixteen blue tablets (and a tablet fragment), later confirmed to contain morphine. Also in this bedroom were three cell phones, a box of sandwich bags, sandwich bags with missing corners, and another cuff sheet.
Officers explained at trial that the corners of plastic bags are used to package drugs for distribution.
The Commonwealth's expert explained that a cuff sheet is a record of drug transactions, which lists customer names, product sold, and any amounts owed.
The jury could have found that the defendant possessed the drugs based on this evidence. "Possession may be actual or constructive," Commonwealth v. Hernandez, 439 Mass. 688, 691 (2003), and can "be established by circumstantial evidence[] and the inferences that can be drawn therefrom." Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008), quoting Brzezinski, 405 Mass. at 409. Constructive possession requires proof of "knowledge coupled with the ability and intention to exercise dominion and control." Gonzalez, supra, quoting Commonwealth v. Boria, 440 Mass. 416, 418 (2003).
Here, the jury could have found that the defendant knew that the apartment was a drug distribution site, given the evidence that the door was heavily barricaded and that police observed numerous transactions with known drug users at the apartment. See Gonzalez, 452 Mass. at 147 (presence of heavy barricades "clearly suggested that the apartment was regularly used for illegal activity, and more particularly, in light of the drugs within, illegal drug activity"); Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999) (traffic pattern and door barricade "tended to establish that it was a drug trading post"). The jury could also have inferred that the defendant was staying at the apartment and was a participant in the distribution operation. Police observed the defendant carrying groceries into the apartment, and he was present there at five in the morning. See Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 302-303 (2012), quoting Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.5 (1991) ("A defendant's 'residential status at a premises is a relevant inculpatory factor to be considered'"). In the bedroom where the defendant was alone at the time of the search, police recovered suboxone and many items associated with distribution -- a digital scale and five cell phones in plain view, packaging materials, cut-off sandwich bags in the trash, a substantial amount of cash separated into folds, and a cuff sheet. This evidence demonstrated more than mere presence and allowed a reasonable inference that the defendant knew of the drugs and had the ability and intent to exercise dominion and control over them. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 165 (2010); Velasquez, supra.
For similar reasons the jury could have found that the defendant had the intent to distribute the drugs. The evidence established that the apartment was a drug trading post. The digital scale, packaging materials, manner of packaging, and cuff sheets were all consistent with drug distribution rather than personal use. There was no evidence that the defendant had user paraphernalia, see Commonwealth v. Gollman, 436 Mass. 111, 116 (2002), and the jury could have inferred that the large amount of cash in different folds was sales revenue and that the multiple cell phones were "instrument[s] of deals and delivery." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013).
Judgments affirmed.
By the Court (Kinder, Shin & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 30, 2020.