Opinion
10-P-1490
12-06-2011
COMMONWEALTH v. XAVIER HENSLEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions of possession of a Class B substance with intent to distribute (a lesser included offense of trafficking, G. L. c. 94C, § 32E[b]), and distribution of a Class D substance, G. L. c. 94C, § 32C(a). The defendant argues that the judge erroneously denied his motion to suppress evidence because the affidavit failed to set forth probable cause to show a sufficient nexus between the defendant's presumed residence and the contraband, and, specifically, that there was insufficient reason to believe the drugs would be found on the premises. We affirm.
Review of the sufficiency of a search warrant is confined to the 'four corners of the affidavit.' Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). ''The substance of all the definitions' of probable cause 'is a reasonable ground for belief." Commonwealth v. Vynorius, 369 Mass. 17, 23 (1975), quoting from Commonwealth v. Stewart, 358 Mass. 747, 749 (1971). The information set forth in the affidavit 'should be read as a whole, not parsed, severed, and subjected to hypercritical analysis.' Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 106 (2007), quoting from O'Day, 440 Mass. at 301. Moreover, given a strong preference for the 'informed and deliberate determinations of magistrates,' United States v. Lefkowitz, 285 U.S. 452, 464 (1932), courts reviewing warrants 'will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant." Aguilar v. Texas, 378 U.S. 108, 111 (1964), quoting from Jones v. United States, 362 U.S. 257, 270 (1960).
Specifically as regarding 'nexus,' to establish probable cause to search a residence, '[a]n affidavit must contain enough information for an issuing magistrate to determine 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. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). '[T]he nexus between the items to be seized and the place to be searched need not be based on direct observation,' ibid., and an issuing magistrate may consider '[a]ll reasonable inferences which may be drawn from the information presented in the affidavit.' Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). The affidavit 'need not establish to a certainty that the items to be seized will be found in the specified location, nor exclude any and all possibility that the items might be found elsewhere.' Commonwealth v. Young, 77 Mass. App. Ct. 381, 386 (2010). Rather, a nexus may be properly inferred from 'the type of crime, the nature of the items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [such] property.' Cinelli, 389 Mass. at 213, quoting from United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).
Viewed in its entirety, along with inferences that may be reasonably drawn therefrom, the affidavit manifests a sufficient nexus between the suspected criminal activity of drug trafficking and the targeted location. Included in the affidavit are the confidential informant's two detailed descriptions of suspected drug traffickers, along with a detailed statement describing the methods used in the defendant's drug-selling operation. The affiant further corroborates the purported method of operation with evidence of a controlled buy and surveillance evidence of the defendant traveling to and from said residence, on foot, to execute drug transactions. Police observations of one or both of the suspected drug dealers, each originating and returning to said residence, as well as a positive field test for cocaine, provide a substantial basis upon which to infer the cocaine was stored at 203 Ash Street. See Commonwealth v. Escalera, 79 Mass. App. Ct. 262, 266, further appellate review granted, 460 Mass. 1101 (2011) (defendant's 'pattern of leaving and returning to his residence for each drug sale' supported finding of probable cause to search residence). However, even if the affidavit can only be read to describe one drug transaction, the detailed information given by the confidential informant provided a sufficient nexus to link the sale of cocaine to 203 Ash Street. See Luthy, 69 Mass. App. Ct. at 108-109.
The confidential informant provided the affiant with detailed physical descriptions of 'Jay' and 'Ro,' two 'brothers' who had recently moved to New Bedford from Brockton, Massachusetts, and whom he had met a few times at 203 Ash Street, for the purpose of purchasing cocaine. After completion of the controlled purchase, the informant told the affiant he had just purchased cocaine from 'Jay.'
The affiant stated that on March 25, 2007, the affiant set up surveillance of 203 Ash Street and confirmed that a male matching one of the descriptions given by the informant exited 203 Ash Street, walked a few blocks, entered a vehicle for a short period of time in which he circled the block, exited the vehicle, and then walked a few blocks to return to 203 Ash Street.
As an alternative ground for reversing the denial of the motion to suppress, the defendant contends the confidential informant lacked a substantial basis of knowledge for his assertion that prior drug transactions were related to 203 Ash Street. The defendant argues that the Commonwealth failed to meet the test set forth in Commonwealth v. Upton, 394 Mass. 363, 374- 375 (1985), relying on Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), requiring a confidential informant to set forth his (1) basis of knowledge for knowing the whereabouts of the claimed contraband, and (2) credibility or reliability. We find this argument to be without merit. The affidavit clearly states both (1) the basis of knowledge, that the defendant had sold cocaine to the informant on prior occasions, and the informant had 'met [the defendant] at 203 Ash Street a few times'; and (2) that the informant is credible, as his identity was known to the affiant, and the informant had been reliable in the past.
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Moreover, that the defendant walked to the point of sale for the controlled buy, as well as walking to a number of other drug transactions reported by the confidential informant, rather than accessing a vehicle, negates any potential claim that the contraband was stored in a vehicle rather than the residence. See Young, 77 Mass. App. Ct. at 387 (reasonable inference that defendant kept drugs at apartment where he had a 'routine of walking directly from his apartment to the point of sale'). Compare Commonwealth v. Pina, 453 Mass. 438, 441-442 (2009) (single observation of defendant driving to drug transaction insufficient to permit a reasonable inference that defendant kept drug supply in his apartment). While the facts presented allow for the possibility of alternate explanations, the inference made need only be 'reasonable and possible,' and not an inescapable conclusion. Young, supra at 386.
As the denial of the defendant's motion to suppress was not erroneous, we affirm.
Judgments affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),