Opinion
No. 15–P–1218.
10-27-2016
COMMONWEALTH v. Anthony NEWMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial in the Superior Court, the defendant, Anthony Newman, was convicted of trafficking in cocaine in an amount equal to or more than thirty-six grams. Prior to trial, the defendant filed a motion to suppress evidence seized at his residence on the ground that the affidavit in support of the search warrant application failed to establish (1) the basis of knowledge and the veracity of two first-time confidential informants, and (2) a nexus between the alleged criminal activity and the place to be searched. Following a hearing, a judge, who was not the trial judge, denied the motion in a written memorandum of decision. The defendant appeals. We affirm.
The defendant claimed other deficiencies in his motion, but he does not argue them here.
“When reviewing a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error,’ but ‘independently review the judge's ultimate findings and conclusions of law.’ ” Commonwealth v. Jewett, 471 Mass. 624, 628, 31 N.E.3d 1079 (2015), quoting from Commonwealth v. Tyree, 455 Mass. 676, 682, 919 N.E.2d 660 (2010). In determining whether probable cause existed to issue a search warrant, we consider the statements contained within the “four corners of the affidavit.” Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 460, 826 N.E.2d 761 (2005), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003).
Here, the affidavit provides as follows. Two first-time confidential informants (CI–1 and CI–2), unknown to each other, spoke to a detective in the Fall River police department about a tall, black male with a distinctive beard who sells “crack” cocaine in the Flint Street neighborhood of Fall River. The black male was known as “Duff,” but CI–1 believed the male's real name was Tony. The informants told the detective that they had each bought crack cocaine from Duff multiple times, both having done so as recently as within seventy-two hours of the filing of the affidavit. CI–1 would meet Duff on Pleasant Street, where he would retrieve the drugs from his pocket. As to CI–2, Duff promptly delivered drugs to CI–2's home when he telephoned. Both informants stated that Duff traveled by bicycle to deliver the drugs, and that he lived on the third floor of 249 Jencks Street. CI–2 additionally provided that Duff lived with a white female and a young child.
CI–1 said it is “unusual” and CI–2 said it is “sometimes tie[d] [at] the end ... with a rubber band.”
On the basis of this information, the detective surveilled 249 Jencks Street shortly thereafter. He twice observed a black male matching the informants' description leave the building, ride a bicycle, meet an individual on Pleasant Street, pass a small item from his pocket to the person in exchange for what appeared to be money, and then return to 249 Jencks Street. The detective observed a white female and a young child enter a vehicle at that location. The detective then entered the license plate number of that vehicle into the Registry of Motor Vehicles database and found that it was registered to the defendant, whose photograph matched the black male the detective had observed, and whose address was listed as 249 Jencks Street, apartment 3W.
1. Basis of knowledge and veracity. “Under the Aguilar–Spinelli standard,[ ]if an affidavit is based on information from an unknown informant, 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).” Commonwealth v. Upton, 394 Mass. 363, 374–375, 476 N.E.2d 548 (1985) (citation omitted). Independent police corroboration can make up for a lack in either or both prongs. Commonwealth v. Cast, 407 Mass. 891, 896, 556 N.E.2d 69 (1990).
See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Although the informants here did not tell the detective that they had seen drugs in the defendant's residence, they provided a detailed basis of knowledge of the defendant's drug-dealing operation, consistent with personal knowledge, that was later corroborated and supplemented by police surveillance. See and compare Commonwealth v. O'Day, 440 Mass. at 301–302, 798 N.E.2d 275 ; Commonwealth v. Rodriguez, 75 Mass.App.Ct. 290, 295–296, 913 N.E.2d 916 (2009). Their veracity was supported by their consistent, contemporaneous, and overlapping tips, again, later confirmed by independent police surveillance. See Commonwealth v. Russell, 46 Mass.App.Ct. 513, 519, 707 N.E.2d 394 (1999) ; Commonwealth v. Ilges, 64 Mass.App.Ct. 503, 509–510, 834 N.E.2d 276 (2005). The police corroboration sufficiently ameliorated any deficiencies that may have been present in the two Aguilar–Spinelli prongs.
Despite being unknown to each other, the informants provided tips that were consistent in several respects. They gave the detective matching physical descriptions of the defendant, including his unique facial hair, the same alias, and the same residential address. They also provided identical information about the type of drug sold and the manner of transportation the defendant employed.
2. Nexus. “[T]here must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant's drug-selling activity and his residence to establish probable cause to search the residence.’ “ Commonwealth v. Pina, 453 Mass. 438, 440–441, 902 N.E.2d 917 (2009), quoting from Commonwealth v. O'Day, supra at 304, 798 N.E.2d 275.
Although, standing alone, the informants' tips would not have established a nexus to the defendant's home, the additional information gathered by the detective's investigation provided the requisite nexus. The affidavit sets out the detective's observations of two drug deals corresponding to the informants' tips, with the defendant leaving and returning to his residence each time. Finally, the detective confirmed the defendant's identity and residence as that provided by the informants. See Commonwealth v. Escalera, 462 Mass. 636, 643, 970 N.E.2d 319 (2012).
The defendant's attempt to factually distinguish Escalera is unavailing. First, the court in Escalera, supra, emphasized that each case “must be considered in light of a unique set of circumstances.” Second, although both Escalera and the present case involve police observation of multiple drug deals, even “[a] single observation of a suspect leaving his home for a drug deal may ... support an inference that drugs will be found in the home where it is coupled with other information, such as statements from credible informants.” Id. at 644, 970 N.E.2d 319. Finally, that the observations here were not controlled buys is not determinative, as controlled buys are not required to support probable cause in an affidavit in support of a search warrant application. See Commonwealth v. Russell, 46 Mass.App.Ct. at 519, 707 N.E.2d 394.
For these reasons, we conclude that the judge did not err in denying the defendant's motion to suppress.