Opinion
No. 15–P–1738.
10-20-2016
COMMONWEALTH v. Ernest A. HARVIN (and a companion case).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following an nonevidentiary hearing, a judge of the Superior Court allowed the defendants' motions to suppress. Thereafter, the Commonwealth was granted leave to appeal. On appeal, it claims the judge erred in allowing the motions. We affirm.
The Commonwealth contends the motions to suppress evidence seized pursuant to three search warrants should have been denied because the supporting affidavits established the required nexus between defendant Harvin's drug dealing and the places to be searched. We disagree. “To establish probable cause to search, an affidavit must contain enough information for an issuing magistrate to determine that the items sought ... reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Donahue, 430 Mass. 710, 711–712 (2000) (quotation omitted). Here, the supporting affidavits submitted to the magistrate did not contain sufficient evidence to issue the resulting search warrants. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995) (“[S]ufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit’ ”).
924 Henderson Road in Williamstown, a Chevrolet Uplander, and 40 Pines Lodge Park in Williamstown.
No. 1428SW0047, 924 Henderson Road, Williamstown; No. 1428SW0048, Chevrolet Uplander; and No. 1428SW0049, 40 Pines Lodge Park, Williamstown.
The Commonwealth relies on Commonwealth v. Eller, 66 Mass.App.Ct. 564 (2006), to establish probable cause based on defendant Harvin's “history” of using his residence as a base for his drug-dealing operations. The Commonwealth points to the defendant's previous arrest and the search of his cabin eight months earlier in attempting to establish this history. However, one search eight months prior, without more, does not establish a pattern and certainly not the “decade-long history” shown in Eller that warranted a finding of probable cause. Id. at 570. See Commonwealth v. O'Day, 440 Mass. at 304 (residence searches require specific information in the affidavit providing “a sufficient nexus between the defendant's drug-selling activity and his residence to establish probable cause to search the residence”). “Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person's residence.” Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).
Furthermore, in Eller, the police had been investigating the defendant for a period of ten years for his drug activities and had information from a confidential informant about purchases from within the defendant's previous residences. See Eller, 66 Mass.App.Ct. at 565, 567–568. The affidavit established the defendant's “decade-long history of using his place of residence as a base for his drug selling operation” and we concluded it was “reasonable to infer that he continued this well-established pattern of selling drugs from his residence when he moved into a motel....” Id. at 570. Though there were no controlled purchases made, this inference was reinforced by police observations of the defendant's leaving the motel room, participating in “his nefarious business,” and returning to the motel thereafter. Ibid. Set out in the affidavit, this was enough to establish a reasonable basis for believing evidence of his drug crimes would be found inside his motel room. See id. at 571.
Here, as the motion judge found, the indicia of probable cause found in Eller, except for a previous search of the defendants' cabin in September of 2013, were absent. There were no controlled purchases, no police surveillance, and no specific evidence pertaining to any of the three places to be searched contained within the affidavits, besides the defendants' living at 924 Henderson Road, their ownership of the Chevrolet Uplander, and defendant Turgeon's rental of the trailer at 40 Pines Lodge Park. See Commonwealth v. Pina, 453 Mass. 438, 441 (2009) (“probable cause to expect that drugs will be present in a home is not established by the fact that the defendant lives there”); Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 599–601 (1991) (no specific information in affidavit about defendant's residence and drug transactions). Accordingly, the judge did not err in allowing the defendants' motions to suppress.
In fact, the affidavits tend to show probable cause to search a completely different residence, an apartment from which multiple people reported defendant Harvin to be selling heroin.
Defendant Turgeon's request for appellate attorney's fees and costs is allowed. The Commonwealth shall have fourteen days from the date of the rescript of this decision to respond to defendant Turgeon's motion (docketed in this court on May 26, 2016).