Opinion
19-P-999 19-P-1000
08-03-2020
COMMONWEALTH v. KIVANNY SANCHEZ (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The Commonwealth appeals from an order allowing the defendants' motions to suppress evidence seized as a result of the execution of a search warrant. The judge ruled that the affidavit in support of the search warrant application failed to provide a sufficient nexus between the defendants' home and the items sought, and that the warrant consequently lacked probable cause. We reverse.
A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and transferred the matter to this court.
The motion judge initially denied the defendants' motions to suppress following a hearing. Upon the defendants' motions to reconsider, the judge later allowed the defendants' motions.
Background. On April 12, 2017, police obtained a warrant to search the second-floor apartment of 14 Laurel Street in Holyoke for certain items related to the sale of heroin including "books, receipts, pay/owe sheets," and "financial proceeds." The warrant was supported by an affidavit of a Holyoke police detective with specialized training and substantial experience in narcotics investigations. The affidavit detailed a police investigation, spanning four months from January through April 2017, into a heroin trafficking organization operating in the area of Sargent Street, between Chestnut and Elm, within the city of Holyoke.
According to a confidential and reliable informant (CRI), Kivanny controlled the organization and lived with his girlfriend Kayla on Laurel Street. The CRI also stated that Kivanny did not handle the drugs, except for procuring them in bulk for the organization, and that he rarely kept drugs at his home. The CRI related that Kivanny employed and relied on Omar Burgos "for the safe keeping and transport of heroin" to various locations and dealers. The CRI pointed out 39 O'Conner Avenue to the police, stating that Burgos lived there with his girlfriend and that the residence was being used as a location to "stash" the drugs. He also reported that Burgos drove a black BMW sedan. The CRI also reported that Kivanny had been involved in a shooting and that he had fled the scene by running into 304 Chestnut Street, apartment 3L.
The identity and residence of the CRI was known to the affiant, who indicated that he could contact the CRI at any time of the day or night. The CRI had in the past provided information to the police that led to the arrest of individuals and to the seizure of illegal narcotics. The CRI requested anonymity due to fear of reprisal.
Police searched the "Mass CJIS website" and learned that Kivanny's driver's license showed a residential address of 14 Laurel Street. Police also searched the "HPD database," which showed that Kayla had a residential address of 14 Laurel Street, second-floor apartment.
Police searched the "Mass RMV" and learned that a black BMW sedan was registered in the name of a woman at 39 O'Conner Avenue, basement apartment. The plate number of that vehicle matched the one attached to the car that the police had seen Burgos drive.
The affiant indicated that shots had been fired in front of 304 Chestnut Street and that six .40 caliber shell casings had been recovered on April 6, 2017. The police searched Kivanny's "BOP" and learned that he had in the past been "charged/convicted" of firearms offenses including "poss firearm w/out a permit" and "firearm carry w/ ammunition." After a check of firearms records, police learned that Kayla had a license to carry and owned a .40 caliber Smith & Wesson firearm.
During the course of the investigation, police conducted numerous controlled buys of heroin involving undercover officers, the CRI, as well as other confidential informants, in the target area around 298 Elm Street and 304 Chestnut Street. In particular, several controlled purchases were made at apartment 3L of 304 Chestnut Street from Stalin Juan Marte Castillo.
Police observed Castillo drive a gray Porsche with a license plate registered to a woman at 304 Chestnut Street, apartment 3A. A "City of Holyoke records database" check showed that apartment 3L of 304 Chestnut Street was rented by a person other than Castillo. The affidavit recited that Castillo was Kivanny's mother's boyfriend but provided no source for this information. Additionally, the affidavit recited, without attribution, that Kivanny worked with his father Julio Sanchez who controlled heroin sales in the 298 Elm Street area. Although the affiant stated that the police had conducted controlled buys directly from Kivanny's father, no such transaction was detailed in the affidavit.
Additionally, police observed Burgos engage in activity which appeared to be consistent with his role in the organization as stated by the CRI. For example, on one occasion, Burgos drove from 39 O'Conner Avenue to an alley along 138 Sargent Street where three men were waiting. The police drove around the block and when they returned within a couple of minutes, everyone had dispersed from the alley, leading police to suspect a drug transaction had occurred. On another occasion, police observed Burgos drive from his residence and park across from 123 Walnut Street, a place known to the police from prior controlled buys of heroin and a prior arrest of a resident for a drug offense. Several people crowded Burgos's car and looked inside. A tow truck then arrived and delivered a black car. Burgos handed the tow driver some paperwork and registration plates. He stood by as the plates were attached to the car.
On April 4, 2017, the CRI met with police near 39 O'Conner Avenue. Within fifteen minutes, the CRI notified the police that a shipment of heroin was going to be delivered to the organization in a black bag. The police then observed Burgos leave the rear parking area of 39 O'Conner Avenue in the black BMW sedan and drive to Laurel Street, where Burgos parked with the engine running. Police later observed that Kivanny was sitting in the BMW's front passenger seat. Kivanny got out of the car and entered 14 Laurel Street; a short time later, Kivanny emerged from 14 Laurel Street and got back into the front passenger seat of the black BMW sedan.
Parked just in front of the black BMW sedan was a black Audi A-7. The Audi was registered to Burgos at 138 Sargent Street. The CRI told the police that the car actually belonged to Kivanny, who had purchased it.
Several minutes later, police observed a pickup truck park behind the black BMW sedan. The driver of the truck and Kivanny both got out of their respective vehicles and met at the passenger side of the truck. In less than a minute, Kivanny reached in and retrieved a dark-colored travel bag which he placed in the trunk of the car in which Burgos was parked. Kivanny then returned to 14 Laurel Street.
Burgos then drove the black BMW to 304 Chestnut Street and stopped in front of the building. A man approached the car and less than a minute later, Burgos left and drove to 39 O'Conner Avenue where he parked in the rear. Shortly thereafter, the CRI reported to the police that a drop of heroin had occurred and that heroin had been delivered to Castillo at 304 Chestnut Street, apartment 3L.
The affiant stated that, based on his training and experience, drug dealers used various methods to avoid detection and minimize exposure including listing vehicles and residences in the names of other individuals and separating bulk drugs, readily accessible drugs for sale, and monies into different locations. The affiant also stated that, based on his training and experience, drug dealers keep written records and proceeds of their dealings in secure locations like their homes, businesses, storage lockers and safe deposit boxes.
Discussion. Whether there was probable cause to issue the search warrant is a question of law that we review de novo. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). Our inquiry as to the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003).
To support a finding of probable cause, the search warrant affidavit must establish a substantial basis for concluding that evidence connected to the crime will be found in the specified premises. See Perkins, 478 Mass. at 104. The "nexus between the items to be seized and the place to be searched need not be based on direct observation." See Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). It may be grounded in "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 [keep the items sought] [quotation omitted]." Id.
When the affidavit is based on information supplied from an informant, the affidavit must set forth the informant's basis of knowledge and veracity. See Commonwealth v. Depiero, 473 Mass. 450, 454 (2016). Independent police corroboration may make up for deficiencies in either or both prongs. See id. We consider only the facts recited in the affidavit and any reasonable inferences therefrom. See Commonwealth v. Kaupp, 453 Mass. 102, 107 (2009).
Here, the affidavit in support of the warrant recited facts from which the magistrate could reasonably infer that Kivanny was a controlling member of a heroin trafficking organization and his role was to procure heroin in bulk for distribution by other members of the organization. The affidavit described how the organization operated: Kivanny employed Burgos to store drugs at his residence and then transport them to dealers at different locations.
The information was provided by the CRI, a confidential informant whose credibility had been established through prior assistance to police. See Commonwealth v. Perez-Baez, 410 Mass. 43, 45-46 (1991) (informant reliable where he had previously provided information leading to arrest and seizure of drugs). Although the CRI's basis of knowledge was not revealed, likely to protect the informant's identity, it may fairly be inferred that the information was based on personal knowledge rather than casual rumor. See Commonwealth v. Alvarez, 422 Mass. 198, 207 (1996).
The affidavit stated that the confidential informant was "involved in the use and procurement of illegal narcotics" and therefore had "occasion to associate with individuals involved in the procurement and distribution of illegal narcotics." Moreover, during the course of the investigation, the CRI participated in controlled buys directly from Castillo at 304 Chestnut Street, apartment 3L.
Evidence of the CRI's personal familiarity with the organization was further bolstered by corroboration of the various details the informant provided to police during the course of the investigation. For example, the CRI knew that Kivanny lived with his girlfriend, identified as "Kayla," at 14 Laurel Street and that Burgos lived with his girlfriend at 39 O'Conner Avenue. The police were able to confirm 14 Laurel Street as the residential address of both Kivanny and Kayla. Additionally, police were able to confirm that the car that Burgos drove was registered to a woman at 39 O'Conner Avenue, an address where the police observed Burgos depart and return regularly. The CRI also knew about a shooting in front of 304 Chestnut Street, in which the informant claimed Kivanny was involved. The police recovered .40 caliber ammunition from the scene, the same caliber as the firearm registered to Kayla. Additionally, police confirmed that Kivanny had a record of firearms violations.
The police investigation also corroborated the CRI's information concerning the role of the different members in the organization. After the CRI informed the police of a shipment of heroin coming in a black bag, police observed Kivanny and Burgos sitting together in Burgos's car in front of 14 Laurel Street. Kivanny went into 14 Laurel Street, came back out, got back into Burgos's car and waited until a pickup truck arrived. Kivanny retrieved the dark-colored bag and placed it into the trunk of Burgos's car and then went back into 14 Laurel Street. Burgos drove to and stopped in front of 304 Chestnut Street at which point a man approached. Within a minute, Burgos continued on his way and returned to 39 O'Conner Avenue. The CRI then confirmed that heroin had been delivered to Castillo at apartment 3L at 304 Chestnut Street. Although the content of the dark-colored bag was not independently confirmed by the police to be heroin, the nature of the transactions, coupled with the substantial evidence of heroin dealing out of that apartment, allowed a reasonable inference that it was so.
The affidavit established that Kivanny was a controlling member of a heroin trafficking organization, responsible for procuring heroin in bulk, although he did not store it in his home. In addition, the affidavit established that 14 Laurel Street was "involved in the operation," in the sense that police observed Kivanny enter it just prior to the arrival of a shipment of heroin to that location and again just after he retrieved the package of heroin and sent it on with Burgos for delivery to 304 Chestnut Street, apartment 3L, a known location of drug sales.
Although the affidavit provided insufficient information to suggest that heroin would be found at Kivanny's home, it did provide probable cause to believe that records and proceeds related to the heroin trafficking organization would be found there based on information derived from the affiant's specialized training and experience in the operations of drug trafficking organizations. See Commonwealth v. Lima, 80 Mass. App. Ct. 114, 118-119 (2011) (affidavit premised on affiant's specialized knowledge supported inference that organization used specific dwelling to store proceeds and records); Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521-522 (2006) (facts drawn from affiant's experience supported conclusion that records and proceeds were contained in particular dwelling).
Specifically, the affiant related his training and experience that drug trafficking organizations often separated their bulk drugs, readily accessible drugs for sale, and monies into different locations in order to circumvent law enforcement and minimize losses. His training and experience revealed that drug trafficking is primarily a cash business, requiring large amounts of cash on hand, and often bought and sold on credit with drugs or monies being "fronted," thereby requiring record keeping to determine drugs distributed and monies owed. The affiant further related his training and experience that persons involved in drug trafficking organizations secrete their records and proceeds in secure locations such as their residences, private businesses, storage lockers, and safe deposit boxes. The affiant's specialized training and experience thus supported the inference that records and proceeds of the drug trafficking organization would be found at Kivanny's home. Contrast Perkins, 478 Mass at 109 (affidavit insufficient to support search for records and proceeds in drug dealer's home where it was supported by "a single, conclusory statement that probable cause existed based on the affiant's 'training and experience and the facts and circumstances learned during the course of this investigation'").
Although we recognize that "special protections are extended to a person's home under both the Federal and State Constitutions," the affidavit here did provide "particularized information . . . that would permit a reasonable inference" that Kivanny likely kept drug records and proceeds in his home. Commonwealth v. Escalera, 462 Mass. 636, 643 (2012) (quotation omitted). The affiant's training and experience concerning how drug trafficking organizations operate and where records and proceeds are typically kept, in conjunction with the CRI's information concerning how this particular organization operated, specifically including Kivanny's role in it (corroborated by police observation of Kivanny entering his home immediately before and immediately after a bulk drug transaction), sufficed to permit a reasonable inference that drug records and proceeds would be found at Kivanny's home. See Santiago, 66 Mass. App. Ct. at 522 ("Once it was established that the defendant was operating a drug business that included [the residence], little, if anything more, needed to be added in the affidavit to justify searching for 'records, ledgers, or proceeds'"). See also Commonwealth v. Moore, 473 Mass. 481, 490 (2016), quoting 2 W.R. LaFave, Search and Seizure § 3.7(d), at 530-531 (5th ed. 2012) ("it is commonly held . . . that drug dealers ordinarily keep their supply, records and monetary profits at home").
We conclude that the search warrant affidavit provided a substantial basis for concluding that evidence connected to the crime -- specifically drug records and proceeds -- would be found at Kivanny's home, especially given the type of crime, the nature of the items sought, opportunity for concealment and normal inferences as to where the items would likely be kept. See Perkins, 478 Mass. at 104. Therefore, the warrant to search 14 Laurel Street, second-floor apartment, was supported by probable cause and the items seized as a result of execution of the warrant should not have been suppressed.
Orders allowing motions to suppress reversed.
By the Court (Vuono, Blake & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 3, 2020.