Opinion
14-P-1690
02-05-2016
COMMONWEALTH v. MICHAEL DOUGLAS.
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
Pursuant to leave granted by a single justice of the Supreme Judicial Court, see Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), the Commonwealth appeals from an order of the Superior Court allowing the defendant's motion to suppress evidence seized from the defendant's apartment pursuant to a search warrant. We discern no error of law in the conclusion of the motion judge that the affidavit supporting the application for the warrant failed to establish probable cause that the items sought reasonably could be expected to be located in the apartment at the time the search warrant issued. See Commonwealth v. Matias, 440 Mass. 787, 792 (2004).
The affidavit includes two paragraphs attributing to the informant knowledge of drug activity in the defendant's apartment. In the first, the affidavit recites that "[p]receding the making of this affidavit, CI-1 informed this affiant that a male known to it as Michael Douglas is selling cocaine from 2114 Phillips Rd, Apartment 33. CI-1 knows that Douglas sells cocaine because CI-1 has purchased cocaine from Douglas and continues to purchase cocaine from him at 2114 Phillips Rd, Apartment 33." Use of the present tense, coupled with a description of continuing purchase activity by the informant, connotes present sales activity, at least as of the time the informant made the statement. See Commonwealth v. Javier, 32 Mass. App. Ct. 988, 989 (1992). However, the affidavit offers no information whatsoever regarding when the informant made the statements attributed to him in the preceding quoted language.
The second reference in the affidavit to assertions by the informant of drug activity in the apartment recites that "[w]ithin the last 72 hours, Detective Sgt. Simmons and this affiant spoke with CI-1 regarding Douglas. CI-1 stated that it had purchased cocaine from Douglas at 2114 Phillips Rd, Apt. 33. CI-1 stated that it observed additional cocaine packaged for street level sales inside 2114 Phillips Rd, Apt. 33." In contrast to the language quoted in the preceding paragraph, this language furnishes temporal context for when the informant made the assertion. However, the assertion attributed to the informant provides no information about when the described drug activity occurred.
We recognize that "[i]n determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion." Commonwealth v. Dorelas, 473 Mass. 496, 501 (2016), quoting from Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). "The affidavit should not be 'parsed, severed, and subjected to hypercritical analysis.'" Dorelas, supra, quoting from Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). Additionally, "[a]ll reasonable inferences which may be drawn from the information in the affidavit may also be considered as to whether probable cause has been established." Dorelas,.supra, quoting from Donahue, supra.
In the present case, however, as the motion judge observed, "[t]here is simply no way to tell from the affidavit when the informant claimed to have seen drugs in the defendant's apartment." As described supra, the first statement attributed to the informant described activity contemporaneous with the time the statement was made, but included no reference to when the statement was made, while the second statement attributed to the informant was described as having been made shortly before the warrant application, but included no temporal reference for when the drug activity it described had taken place. Nor may any rational inference be drawn from the four corners of the affidavit regarding the time that elapsed between the two statements. In short, we discern no error in the conclusion of the motion judge that the affidavit did not establish probable cause to believe that drugs would be located in the defendant's apartment at the time the warrant was issued.
The affidavit described various activities that occurred between the two statements, including review of birth and police records, and review of billing records maintained by a utility company. Notably, the affidavit also stated that the affiant conducted surveillance of the defendant's apartment "on numerous days at various times of the day." However, nothing in the description of the various investigative activities undertaken by police establishes the duration of the investigation, or suggests any inference concerning the time that elapsed from commencement of the investigation to the application for a search warrant.
Order allowing motion to suppress affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.