Opinion
20-P-1032, 20-P-1071
05-27-2021
COMMONWEALTH v. Billy T. DIXON (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Billy T. Dixon, was charged in the District Court with forgery of a check and conspiracy. While these charges were pending, the defendant was indicted and arraigned in the Superior Court on firearm and drug offenses. Both cases stem from evidence seized as a result of the same search warrant. The defendant filed motions to suppress in both courts, contending that the search warrant application did not establish probable cause. The motion was denied in the District Court and was allowed in the Superior Court. These appeals followed. We reverse the order of the District Court judge denying the motion to suppress and affirm the order of the Superior Court judge allowing the motion to suppress.
The District Court judge denied the motion, finding that probable cause existed to search the defendant's apartment for the firearms. He denied the motion as to the other items found during the search because "[e]vidence of other criminal activity found during the search for the firearms need not be ignored by the police."
Discussion. 1. The search warrant application. On January 17, 2019, Fall River Police Officer Gregory Homen, a member of the special operation division gang unit, applied for and was granted a no-knock search warrant for the first floor apartment of 259 Wade Street, Fall River. The following facts are taken from Homen's affidavit filed in support of the application for a search warrant.
The warrant authorized the police to search both the property and the defendant's person for "[f]irearms, large capacity ammunition magazines, ammunition magazines, ammunition, firearm accessories as well as computers, printers, bank records, bank cards, documents, letters of standing, and any and all evidence pertaining to [an alleged bank fraud scheme discussed in the officer's warrant application affidavit]."
As part of his duties, Homen actively monitored criminal activity associated with gangs including, as relevant here, firearm violations. During the month leading up to the warrant application, members of the special operations division received information regarding a violent street gang, "40 Blocc." They learned that upper ranking members of the gang, Melvin Cortez and the defendant, were involved in an illegal check cashing bank fraud scheme and possessed illegal firearms. Several victims had been defrauded out of thousands of dollars by the use of counterfeit checks, cashed at local businesses. Through a digital social media source, officers learned that Cortez possessed multiple firearms, including two black semi-automatic Glock handguns with extended high capacity magazines and one "silver/black Uzi or Mac-10" and was continuing his check cashing scheme.
In a report from an earlier investigation, New Bedford Police Detective Scott Brown described the scheme which involved social media posts (from 2016) that invited the readers to "LIKE, SHARE & INBOX" in order to make "$500-$1000" in approximately twenty-four hours. Victims contacted Cortez using the social media posts and provided their bank cards and personal identification numbers. Counterfeit checks were then deposited into the account. Video surveillance showed Cortez depositing counterfeit checks and withdrawing money from these accounts.
Within the seventy-two hours preceding the search warrant application, Homen met with a confidential informant (CI) who provided information regarding the firearms and illegal check cashing scheme. The CI did so voluntarily, without promises from the police, threats, or coercion. The CI, fearing reprisal to himself and his family, wished to remain anonymous. However, his identity, address, and telephone number were known to Homen and other police officers. Homen could contact the CI at any time.
"Our use of the masculine pronouns should not be considered any indication of the CI's gender, about which we have no information." Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 476 n.5 (2020).
The CI said that he was present with Cortez in an apartment at 23 Beetle Street (2nd floor south) in New Bedford, a multi-family dwelling consisting of six units with white siding. The CI described the location of the apartment relative to the street and how to access the unit within the building. While inside the apartment, the CI saw Cortez in possession of multiple firearms and a pistol equipped with an extended magazine. The CI, based on his experience with firearms, said that the he knew the firearms to be real. The CI's description of the firearms was consistent with pictures that police saw on social media. The CI also said that Victoria Caraballo was residing in the apartment. Homen confirmed that Caraballo's daughter listed an address of 23 Beetle Street, Apt. 2S.
Within the last week preceding the application, the CI was at two separate apartments occupied by 40 Blocc members, including an apartment at 259 Wade Street (1st floor). The CI described the building as a three-unit multi-family dwelling. The defendant's apartment was on the first floor. The CI reported that, while in the apartment, he saw the defendant with a black semi-automatic pistol, which he knew to be real, and electronic equipment (computer/printer) that he knew was still being used to make counterfeit checks.
Homen reviewed in-house police databases to confirm that the defendant resided at 259 Wade Street (1st floor).
Homen stated that he knew Cortez to be a member of the 40 Blocc gang and that Cortez had been designated as a member of the gang in law enforcement databases. He noted that, since 2017, members of the 40 Blocc gang were involved in at least four shootings in Fall River, and that Cortez was charged with possession of a firearm and possession of a firearm without a license to carry (LTC) in the past. Cortez's recent convictions included forgery, uttering, and possession of a firearm. At the time of the application, there were three active warrants for Cortez's arrest, some of which related to firearm possession and false or forged checks.
The police database also identified the defendant as a member of the 40 Blocc gang. He had been charged in the past with assault and battery, resisting arrest, assault and battery by means of a dangerous weapon, assault and battery on a police officer, and intimidation of a witness connected to a murder in Fall River. The defendant was convicted of larceny and uttering a forged instrument in June 2017.
Based on their criminal records, Homen knew that neither Cortez nor the defendant had a license to carry a firearm. Based on his training and experience, Homen averred that a firearm is a durable item, often used by gang members, to intimidate others and carry out criminal activities.
2. Probable cause. In both the District Court and Superior Court cases, the defendant moved to suppress the evidence seized, contending that the search warrant affidavit did not establish probable cause to search the first-floor apartment of 259 Wade Street. "Under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a search warrant may issue only upon a showing of probable cause." Commonwealth v. Long, 482 Mass. 804, 809 (2019). "Probable cause means a ‘substantial basis’ to conclude 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.’ " Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 81 (2020), quoting Long, supra. "[W]hether there was probable cause to issue the search warrant is a question of law that we review de novo ... in a commonsense and realistic manner." Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). "Our review is limited to the four corners of the affidavit," Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 505 (2019), such that "we consider only the facts recited in the affidavit and any reasonable inferences therefrom." Commonwealth v. Kaupp, 453 Mass. 102, 107 (2009). See Commonwealth v. Robertson, 480 Mass. 383, 387 (2018) ("Inferences drawn from the affidavit must be reasonable and possible, but no showing that the inferences are correct or more likely true than not true is required"). Further, "the affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis." Commonwealth v. Blake, 413 Mass. 823, 827 (1992).
Here, the police made no firsthand observations that a firearm or equipment related to the check cashing scheme was in the defendant's apartment. They relied on information received from the CI. Therefore, we utilize the familiar Aguilar-Spinelli standard to evaluate whether the affidavit established probable cause for the search. Under this standard,
See Spinelli v. United States, 393 U.S. 410 (1969) ; Aguilar v. Texas, 378 U.S. 108 (1964).
"the magistrate must ‘be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was "credible" or his information "reliable" (the veracity test). Aguilar v. Texas, [378 U.S. 108, 114 (1964) ]. If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause. Spinelli v. United States, [393 U.S. 410, 415 (1969) ]’ " (citation omitted).
Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985).
a. Basis of knowledge prong. The defendant contends that the search warrant affidavit did not satisfy the basis of knowledge prong because the CI's observations were merely consistent with a "casual rumor." See Commonwealth v. Alfonso A., 438 Mass. 372, 374 (2003), quoting Commonwealth v. Robinson, 403 Mass. 163, 165 (1988) ("it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation"). This argument ignores the fact that the CI was in the defendant's apartment, within a week prior to the search warrant application, and that he provided details about his observations including where the apartment was located within the context of the building and details about the gun, i.e. it was black (as opposed to silver), a semi-automatic (as opposed to a revolver), a pistol (as opposed to a rifle). See Commonwealth v. Alvarado, 423 Mass. 266, 271 (1996) (basis of knowledge requirement satisfied by anonymous caller's report of recent first-hand observation of handgun); Commonwealth v. Allen, 406 Mass. 575, 578 (1990) ("First-hand receipt of information through personal observation satisfies the basis of knowledge prong of Aguilar-Spinelli"). We conclude that the CI's personal observations, as set forth in affidavit, satisfied the basis of knowledge prong as to the firearm.
b. Veracity prong. The defendant contends that the CI did not satisfy the veracity prong. We agree. To satisfy the veracity prong of the Aguilar-Spinelli test, an affiant must apprise the magistrate of "some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable." Commonwealth v. Desper, 419 Mass. 163, 166 (1994), quoting Commonwealth v. Warren, 418 Mass. 86, 88 (1994). The "usual indicia of reliability to satisfy the veracity prong" includes showing "that the informant had a track record of providing reliable information in past investigations." Commonwealth v. Perez, 90 Mass. App. Ct. 548, 553-554 (2016). See Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 486 (1994) (informant's "track record traditionally used to show credibility"). Here, the affidavit contains no information that the CI had ever previously interacted with the police, let alone provided them with accurate information about criminal activity. Compare Commonwealth v. Amral, 407 Mass. 511, 515 (1990) (veracity shown where prior tips from CI led to arrest and conviction for offenses similar to those alleged in affidavit). Moreover, the CI did not make a statement against his own penal interest, which would have supported the veracity of his report. Compare Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996) ("The veracity prong has been met where, as here, there is a statement against penal interest"). And, although the police knew the CI's name, address, and telephone number, and could contact him at any time, this alone is inadequate. See Alfonso A., 438 Mass. at 376 ; Ponte, 97 Mass. App. Ct. at 81-82.
c. Independent police corroboration. In the absence of a CI's track record of providing reliable information, independent police corroboration of detailed information can compensate for any deficiencies in either prong of the Aguilar-Spinelli test. See Ponte, 97 Mass. App. Ct. at 81. Here, the police investigation did not make up for the deficiencies in the veracity prong. The defendant's alleged gang affiliation, although confirmed through a police database, contributes only minimally here because the affidavit did not disclose what the basis of the police database information was; it could have been street rumor.
The location of the defendant's residence was easily obtainable and corroboration of that type of information contributes only minimally on the issue of an informant's veracity. See Commonwealth v. Bottari, 395 Mass. 777, 784 (1985) ("Corroboration of innocent details is normally less significant in establishing probable cause than corroboration of facts suggestive of criminal conduct"); Commonwealth v. Matta, 34 Mass. App. Ct. 921, 922 (1993) ("The corroborating information was insufficient to establish the informant's reliability. The information supplied by the informant, which was corroborated by police investigation, did not include any specific details about the defendant which were not easily obtainable by an uninformed bystander"). See also Perkins, 478 Mass. at 109 ("single, conclusory statement" insufficient to show probable cause to search for "drug-related records, proceeds, and paraphernalia"). Because there is no detail about the source of the other corroborative information, the police investigation did not provide any significant corroboration.
"A defendant's criminal history may be factored into a probable cause determination as corroboration of an informant's tip, but only if the history is sufficiently recent and similar to the crime charged to demonstrate that ‘the defendant was not averse’ to committing such a crime." Allen, 406 Mass. at 579, quoting Commonwealth v. Germain, 396 Mass. 413, 418 n.7 (1985). Although the affidavit sets forth several charges filed against Dixon in the past, he has two convictions -- uttering a forged instrument and larceny. This information did not provide the magistrate with the details necessary to determine whether the arrests and convictions were sufficiently similar to the crimes alleged in the affidavit. Compare Commonwealth v. Reyes, 423 Mass. 568, 572-573 (1996) ("Although the affidavit intimated that the defendant had been arrested previously, ... the magistrate was told no details about the purported arrest, including when it occurred, whether charges were brought, whether contraband was seized, or the ultimate disposition of the arrest"); Ponte, 97 Mass. App. Ct. at 82 (same). To the extent that the Commonwealth asks us to consider the independent police corroboration of the CI's information relating to Cortez in evaluating the affidavit for the search warrant related to the defendant, we decline to do so, given all of the circumstances surrounding this case. First, the information regarding Cortez provides only a minimally stronger case for that portion of the warrant application. Second, in Cortez's case, a different Superior Court judge allowed his motion to suppress based on the same search warrant affidavit as that at issue here. Thereafter, the Commonwealth filed, and the judge allowed, a motion to dismiss the case against Cortez. In these circumstances, we do not consider whether any corroboration concerning Cortez can be used to make up for deficiencies in the warrant application for this defendant.
The Commonwealth argues that the defendant's conviction of uttering was sufficiently similar to the alleged check cashing scheme such that the magistrate could consider it as corroboration of the CI. However, even were we to agree, as discussed supra, this alone is insufficient corroboration to make up for the deficiencies in the Aguilar-Spinelli analysis.
We also note that the Commonwealth cites no cases, and nor have we found any cases, that rely on police corroboration of a CI's information about a codefendant in evaluating whether there was probable cause to search the defendant's residence.
We take judicial notice of the status of Cortez's case. See Mass. Guide to Evid. § 201 (b) (2021). The Commonwealth did not advise us of the status of Cortez's case, nor did it explain why it prosecuted this appeal in which the judge allowed the defendant's motion but did not appeal of the allowance of Cortez's motion based on the same search warrant application.
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Conclusion. We reverse the order of the District Court judge denying the motion to suppress, and we affirm the order of the Superior Court judge allowing the motion to suppress.
So ordered.
reversed in part; affirmed in part