Opinion
15-P-586
04-15-2016
COMMONWEALTH v. MICHAEL T. REBELLO.
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
Following a nonevidentiary hearing, a judge allowed the defendant's motion to suppress evidence that was seized following the execution of a search warrant on his property. On appeal, the Commonwealth claims the judge erred in allowing the motion. We reverse.
The Commonwealth contends the motion should have been denied because the search warrant's supporting affidavit established the required nexus between the defendant's drug dealing and his residence. We agree. "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) (citations and quotations omitted).
Here, the affidavit listed several significant facts sufficient to establish this nexus. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) ("[S]ufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit'"), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). First, the police relied on a first-time confidential informant (CI) who told the officer he had purchased heroin from the defendant within seventy-two hours of the affidavit being drafted. In addition, the informant accurately described the defendant's home and car to the police. Although the CI provided only the street address, and not the defendant's specific apartment number or floor in the three-family home, the officer verified the information through police records and the defendant's vehicle registration to determine that he resided in the first floor apartment. While the defendant argues the CI never explicitly stated he went inside or saw drugs in the apartment, the magistrate could properly infer a sufficient nexus because the affidavit contained additional, "nonobvious" corroborating information. See Commonwealth v. Lyons, 409 Mass. 16, 21 (1990).
The defendant also claims that the CI does not satisfy either the veracity or basis of knowledge prongs of Aguilar-Spinelli. The motion judge did not allow the motion to suppress on this basis. In any event, the claim is without merit. Contrary to the defendant's assertions, the CI established a basis of knowledge through personal observations, including a first-hand purchase of narcotics from the defendant that the CI described to the officer writing the affidavit. See Commonwealth v. Montanez, 410 Mass. 290, 299-300 (1991) (first hand purchase); Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664, 667-669 (2000) (personal observations satisfy basis of knowledge). The CI likewise satisfied the veracity test and because his statement admitting his narcotics purchase to the police went against his penal interest. See Commonwealth v. Parapar, 404 Mass. 319, 322 (1989) ("Admissions of crime . . . carry their own indicia of credibility -- sufficient at least to support a finding of probable cause to search"), quoting from United States v. Harris 403 U.S. 573, 585 (1971). Were there, as the defendant alleges, any deficiencies in either prong of Aguilar-Spinelli, the police nevertheless overcame them by independently corroborating the informant's statements. See Commonwealth v. Robinson, 403 Mass. 163, 166 (1988) ("[I]ndependent police corroboration can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli test"). The officer here did so in verifying the defendant's vehicle registration, determining his home address from police records, and conducting surveillance of the home to observe comings and goings indicative of drug dealing. Furthermore, the CI's successful controlled buy corroborated the information from the tip and significantly bolstered his credibility. See Commonwealth v. Connolly, 454 Mass. 808, 815 (2009).
The police also conducted surveillance of the defendant's residence and observed four individuals, including one who the observing officer knew was involved with heroin, arrive at and leave the apartment within the span of one half-hour. After making these observations, the police organized and conducted a controlled buy between the CI and defendant where police observed the defendant and CI engage in a "brief interaction" on the defendant's porch. Afterwards, the CI met the officer and gave him the heroin purchased in the buy. That the CI named only the defendant's street address and the police did not observe the defendant or drugs specifically inside his apartment is not dispositive. Police here observed the transaction just outside the defendant's residence, and not at a remote location requiring that the defendant drive to the exchange. See Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 593-594 (2002). These multiple observations therefore support the inference that the defendant remained in close proximity to the drugs -- namely, that he stored them in his apartment -- and establish a sufficient nexus to support the search warrant. See Commonwealth v. Young, 77 Mass. App. Ct. 381, 387 (2010) ("[D]efendant's routine of walking directly from his apartment to the point of sale, and returning to his apartment immediately following the sale, raised a reasonable inference that he kept a cache of drugs in his apartment"). Contrast Commonwealth v. Pina, 453 Mass. 438, 441-442 (2009); Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908-909 (2003).
The observing officer had significant narcotics training and experience.
The bulk of the defendant's arguments on appeal suggest the nexus is insufficient because the police relied on information obtained from a CI who fails to satisfy either prong of Aguilar-Spinelli. As set forth above, we disagree. While the defendant stresses the alleged faults in the CI's veracity and basis of knowledge, he ignores corroborating information that compensates for any alleged deficiencies. See Commonwealth v. Robinson, 403 Mass. 163, 166 (1988). The defendant appears to assert that the informant alone must establish the nexus between the drug dealing and the defendant's first floor apartment and erroneously ignores or discounts the other corroborating information available to the magistrate. See Commonwealth v. Blake, 413 Mass. 823, 827 (1992) ("[T]he affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis"). Taken together, however, all of the information in the affidavit established a proper nexus between the defendant's drug dealing and his residence to support probable cause to issue the search warrant. See Commonwealth v. Hardy, 63 Mass. App. Ct. 210, 213 (2005). Accordingly, the judge erred by allowing the motion to suppress.
Contrary to the defendant's assertions, the Commonwealth does not rely on the corroborating details alone to satisfy the veracity prong, but instead relies on this information to bolster the informant's credibility.
The order allowing the motion to suppress is reversed, and a new order is to enter denying the motion.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 15, 2016.