Opinion
19-P-911
07-06-2020
COMMONWEALTH v. FRANKIE WRIGHT.
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
This case involves the frequently litigated question of whether a search warrant affidavit arising out of a drug investigation demonstrated a sufficient nexus between the residence of the defendant and the drug-crime-related items sought to establish probable cause to search the residence for those items. The defendant was charged with twelve counts including trafficking in cocaine with a net weight over eighteen grams but under thirty-six grams, in violation of G. L. c. 94C, § 32E (b) (1), and a number of firearm-related offenses. He filed a motion to suppress, which was denied after a nonevidentiary hearing, and subsequently pleaded guilty to all twelve charges as part of a conditional plea pursuant to Commonwealth v. Gomez, 480 Mass. 240 (2018), under which he was permitted to plead guilty but pursue the instant appeal from the denial of his motion to suppress.
Seven indictments for possession of a large capacity feeding device in violation of G. L. c. 269, § 10 (m), issued for the defendant. He was also charged with possession of a rifle without a firearms identification card in violation of G. L. c. 269, § 10 (h), possession of a firearm without a firearms identification card in violation of G. L. c. 269, § 10 (h), possession of ammunition without a firearms identification card in violation of G. L. c. 269, § 10 (h), and possession of a firearm with a serial number defaced in violation of G. L. c. 269, § 11C.
Background. The items of evidence that the defendant sought to suppress were a loaded .40 caliber Glock 22 handgun with a magazine loaded with fourteen rounds of ammunition, two fifteen-round feeding devices loaded with ammunition, a blue gun box with a fifteen-round feeding device loaded with nine-millimeter rounds, a safe containing a bag of cocaine weighing 27.6 grams, boxes of ammunition, and paperwork, a large capacity feeding device for an AR-15, a Rolex watch, a box of sandwich bags located with the safe, a bag containing a Palmetto State Armory AR-15 assault rifle containing a loaded thirty-round large capacity feeding device, a backpack containing additional boxes of ammunition, an envelope containing receipts, a digital scale, and $380 in cash. These items were seized from his residence, an apartment at 103 Hart Street in Taunton, pursuant to a search warrant. The operative language of the search warrant authorized police "to search for the following property: Any books, notes and/or ledgers denoting sales or transactions, money or other proceeds associated with or derived from the sale, use, or purchase of a controlled substance. Also, any additional instruments or equipment, electronic or otherwise, used to further the sale of controlled substances, including but not limited to keys, safes and/or safe boxes and surveillance equipment, communication equipment and/or devices capable of destroying data such as computers or PDA's. Additionally, I request that said search warrant allow officers to seize any phones and/ or phone records associated with phone (857) 259-0919."
The search warrant affidavit described the following: Detective Sherrick of the Braintree Police Department began his investigation into a cocaine dealer known by the street name "Frizz" on May 7, 2018. He received a call from a detective at the Randolph Police Department, telling him that a reliable source had disclosed that a black male in his mid-twenties was selling cocaine in Braintree. He also learned that one of the suspects was identified as defendant Frankie Wright. Braintree police had already investigated the defendant as a source for fentanyl that resulted in an overdose on River Street in Braintree. They knew that the defendant drove a black BMW that was registered to his home address at 103 Hart Street in Taunton.
Sherrick went to River Street in Braintree on May 8 looking for the defendant and, after observing his car in a parking lot, followed him back to a residence at 51 River Street and surveilled the residence. Sherrick saw several individuals entering the residence and then departing again minutes later. Sherrick followed one such individual whom he suspected might be a customer of the defendant's, based on information from the Randolph Police Department. Relying on assistance from patrol units, he had this individual and his passenger pulled over for a traffic stop. The officers discovered bags of white powder in the car that field tests indicated were presumptively positive for cocaine. After the driver and passenger were arrested for possession of the cocaine, the driver, Thomas Mayo, agreed to speak with Sherrick about where he purchased the cocaine.
Officers asked the individuals in the car to exit the vehicle and when they did, Sherrick saw the passenger take a plastic bag, containing unknown white powder, from his pocket and throw it back into the car. They arrested the passenger and Sherrick removed the driver, Thomas Mayo, from the car. Sherrick indicated that he read Mayo his Miranda rights before asking to speak with him. Mayo indicated that there was another bag of white powder in the car, which officers collected and field tested; it came back with a presumptive positive indication for cocaine.
Mayo said that he bought the drugs from a male named "Frizz," that he had been buying cocaine from him for a while, and that he made the purchases at Frizz's second-floor apartment at 51 River Street. Mayo described the apartment's entrance, including a sign outside of the apartment door, located at the end of the hallway. Sherrick later investigated inside the building at 51 River Street, confirming that there was, indeed a sign taped to the apartment door at the end of the second-floor hallway, consistent with Mayo's description of the outside of Frizz's apartment.
Mayo confirmed that Wright, depicted in his registry of motor vehicles (RMV) photo, was the man he knew as Frizz. He provided Sherrick with Frizz's price list for his drugs. He also reported fearing Frizz and believing that Frizz had firearms at the 51 River Street apartment.
Mayo said that one day he saw a female whom he believed lived in the apartment with a mark on her forehead. She had said it was caused by Frizz holding the barrel of a gun to her head.
Mayo then told Sherrick that he had a cell phone number for Frizz in his contacts: (857) 800-7426. By researching this cell phone number, Sherrick learned that it was indeed registered to a Metro PCS account that listed the defendant's name and his address at 103 Hart Street in Taunton. Sherrick requested that a subpoena be sent to Metro PCS requesting a phone toll analysis and subscriber information for this number.
Over the next several days, detectives set up surveillance of the defendant at 51 River Street. Detectives observed several interactions in which someone arrived, entered, and then left 51 River Street within minutes. Some of these individuals appeared to leave carrying something or to hand something off immediately after leaving.
On May 16, officers recovered and searched through the trash from the apartment at 51 River Street and found thirty-eight sandwich bags with the corners cut off and ten plastic knots cut off and tied from plastic sandwich bags, both consistent with materials used to package narcotics. On June 13, officers conducted another trash search at 51 River Street and found thirty-three sandwich bags with the corners cut off, a sandwich bag and a cut-corner baggie each containing white powder, and a digital scale. On both occasions, a drug-sniffing dog indicated that there was a drug odor to these items and Sherrick did field tests on the white powder, which came back presumptively positive for cocaine.
On both occasions officers also found mail indicating that the defendant was not a primary resident of this apartment. They found that the defendant instead resided at 103 Hart Street in Taunton. Officers believed that he used the apartment at 51 River Street as a "stash house," or a packaging location, for the drugs he distributed.
The mail was addressed to the occupants of apartment three: Laurie Deloatch and Jamal Johnson.
Sherrick apprised detectives of the Taunton Police Department of his investigation and told them that the defendant was believed to reside at apartment 1/203 at 103 Hart Street in Taunton. One of these detectives, Detective Corr, agreed to drive by this address to locate the defendant's vehicle. Corr indicated that the defendant's vehicle was parked at 103 Hart Street. Corr continued "frequently checking" the defendant's 103 Hart Street address and observed his car in the parking lot numerous times. On May 21 and May 23, Detective Corr observed the defendant's car in the parking lot of 103 Hart Street, seeing the car there after 11 P.M. Sherrick, too, went to the building at 103 Hart Street on May 18. In the doorway of the building he saw the defendant's name on the call box, listed next to apartment number 203.
Sherrick and other detectives continued surveilling the defendant at 51 River Street throughout May and June. They observed, on a number of occasions, what they believed to be hand-to-hand drug transactions between the defendant and various individuals, some of whom were known to Sherrick to be customers of the defendant.
On May 18, for example, Sherrick followed the defendant's car from 51 River Street to a parking lot, where he observed another car pull into the lot, park next to the defendant's car, and the driver exit the car and enter the passenger side of the defendant's car. Officers identified the driver as Charles Johnston. From the defendant's phone records, officers were aware that Johnston frequently called the defendant's cell phone. Johnston remained in the defendant's car for less than a minute. Officers believed that they had observed a narcotics transaction between the defendant and Johnston. On June 6, Sherrick and other officers observed several unknown individuals entering 51 River Street and exiting within five minutes and suspected that these individuals had purchased narcotics inside. The next day, a Braintree detective surveilling 51 River Street followed the defendant when he drove to the residence of one of his known customers. He observed a quick, hand-to-hand exchange between the customer and the defendant. While at this residence, he saw the defendant conduct two more hand-to-hand exchanges with two other individuals who arrived at the residence.
Sherrick also received information from a confidential informant in June of 2018; this informant reported that Frizz was distributing cocaine and that the informant had been purchasing cocaine from Frizz for some time. The informant had never before provided reliable information to the Braintree police. The informant confirmed, based on the defendant's RMV photo, that the man the informant knows as Frizz is the defendant. This informant stated that the informant had purchased narcotics from the defendant at both 51 River Street and the defendant's actual residence at 103 Hart Street in Taunton. The informant also provided the phone number the informant would call to arrange purchases: (781) 709-6425. This number was tied to a prepaid phone with no name attached to the account.
In early June, Sherrick coordinated a controlled purchase between the informant and the defendant. The informant met with police and, after being searched for contraband, called that number and placed an order for drugs. Sherrick gave the informant police funds and had the informant meet the defendant at a predetermined location, where police had set up surveillance. The defendant met with the informant and they had a brief exchange before the informant returned to a predetermined location to meet with Braintree police. The informant turned the drugs over to the police and was searched again for any other contraband. Following this same procedure, Sherrick had the informant conduct another controlled purchase within seventy-two hours of seeking the search warrant.
Sherrick indicated in the search warrant application that there was probable cause to believe that the defendant was a drug dealer. He averred that drug dealers may store their supply of drugs at a safe house or stash house, in addition to their residence, which is often leased or owned under a different name. He concluded that the defendant utilized the apartment at 51 River Street as a stash house while maintaining 103 Hart Street as his residence. Sherrick also indicated that drug dealers use cell phones, usually prepaid, and that they often use different phones to limit law enforcement's ability to establish a pattern of telephone usage. Sherrick also stated that drug dealers using stash houses may store or transport the drugs back and forth in their cars; they will store money and records pertaining to the drugs in their cars. The defendant's car was registered to the defendant at his address at 103 Hart Street.
With respect to the residence, Sherrick requested that the "search warrant allow officers to search for any books, notes and/or ledgers denoting sales or transactions, money or other proceeds associated with or derived from the sale, use, or purchase of a controlled substance. Also, any additional instruments or equipment, electronic or otherwise, used to further the sale of controlled substances, including but not limited to keys, safes and/or safe boxes and surveillance equipment, communication equipment and/or devices capable of storing data such as computers or PDA's. Additionally, any records linking WRIGHT to the telephone numbers (857) 800-7426 and more recently (781) 709-6425 used by CS-3 to purchase narcotics from WRIGHT."
With respect to the alleged stash house, the apartment on River Street, his request was slightly different. He asked that the "search warrants allow officers to search for cocaine, any instruments or paraphernalia used in the cutting, procuring, weighing, packaging and/or distribution of controlled substance, paraphernalia, implements, and other articles necessary for the business of distributing controlled substances inside their storage unit. Additionally, I request that said search warrant allow officers to search for any books, notes and/or ledgers denoting sales or transactions, money or other proceeds associated with or derived from the sale, use, or purchase of a controlled substance. Also, any additional instruments or equipment, electronic or otherwise, used to further the sale of controlled substances, including but not limited to keys, safes and/or safe boxes and surveillance equipment, communication equipment and/or devices capable of storing data such as computers or PDA's. Additionally, I request that said search warrant allow officers to seize any phones and/ or phone records associated with WRIGHT'S [drug trafficking organization]."
Sherrick also sought permission to search the defendant's vehicle.
Discussion. This case is controlled in all relevant respects by the Supreme Judicial Court's latest decision with respect to the nexus that must be shown in a search warrant affidavit between a suspected drug dealer and his residence before that residence may be searched for particular items of evidence. In its 2017 decision in Commonwealth v. Perkins, 478 Mass. 97, 104 (2017), the Supreme Judicial Court applied an item-by-item analysis of whether there was a sufficient nexus for each item to permit police to search the residence for it. The court found with regard to a search for clothing worn during a drug deal, for example, that even in the absence of evidence that the suspect was followed to a drug deal directly from the residence, or was followed home from a controlled purchase, the police may establish a sufficient link between the suspect's clothing and his residence because clothing is "durable, of continuing utility . . . and it was reasonable to expect that [it] would be kept at home, particularly as [clothing is] not inherently incriminating to possess." Perkins, supra at 107-108, quoting Commonwealth v. James, 424 Mass. 770, 778 (1997). Cf. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 108 (2007) (search was permissible because suspected drug dealer remained under surveillance following controlled purchase until he returned to his house; police confirmed that his method of operation included his residence). The court also concluded that, in such circumstances, a search for cell phones used during the commission of a drug crime might also be sought from the suspect's residence. Perkins, supra at 105-106. Although the court did not make explicit the reasoning behind this, presumably it is because the same analysis applies to cell phones as to clothing.
By contrast, there must be "particularized information to justify a search of [a] defendant's [residence] for drug-related records, proceeds, and paraphernalia." Id. at 109. In Perkins, the Supreme Judicial Court held that the search warrant was too broad because "[t]he affidavit contained no facts, or opinion based upon the affiant's considerable experience as a narcotics officer, that would have established probable cause to believe that the defendant would be likely to store particular items of evidence in his home." Id.
On appeal, the Commonwealth argues only that "there was probable cause to believe that records and proceeds relating to the defendant's drug distribution would be found at his residence." And, indeed, almost everything inside the residence for which the warrant authorized a search falls into this last category of "drug related records, proceeds, and paraphernalia." Yet beyond a single conclusory sentence stating that "[t]here is a strong likelihood that the proceeds of Wright's drug sales will be found inside his residence" there is no particularized evidence establishing the required nexus between these items and the defendant's apartment at 103 Hart Street. See Perkins, 478 Mass. at 109 ("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" was insufficient to establish nexus [quotation omitted]). The mere fact that the defendant's car was registered to this address also fails to provide particularized evidence connecting the defendant's residence to drug-related records, proceeds, and paraphernalia. Contrast Commonwealth v. Tapia, 463 Mass. 721, 727 (2012) ("officers observed the defendant leave from her home in the direction of a controlled purchase, [and] the officers twice followed the defendant from the site of a controlled purchase directly to her home"); Commonwealth v. Lima, 80 Mass. App. Ct. 114, 118-121 (2011) (affiant offered specialized knowledge that supported inference that defendant would use his dwelling to store his records and indicated that "[o]n multiple occasions police observed the defendant driving directly to or from [the home address] to consummate drug deals"); Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521-522 (2006) (particularized evidence existed where affiant concluded, based on his expertise and details about defendant's operation, "that in a drug operation of the size carried out by the defendant, the bulk of the drugs would usually be kept separate from any records or proceeds affiliated with the operation").
Insofar as the Commonwealth argues on appeal that the confidential informant's statement that the informant had previously purchased narcotics from the defendant at his actual residence at 103 Hart Street is sufficient to establish probable cause to search for drug-related records, proceeds, and paraphernalia there, we reject that argument. "The information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched." Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651 (2005). The affiant, however, provided no details as to when the informant allegedly made this purchase at 103 Hart Street. This information, therefore, cannot establish a timely nexus.
The final sentence of the paragraph of the search warrant authorizing the search for and seizure of specified items, however, addresses cell phones, which, like clothing, are treated differently under Perkins from records, proceeds, and paraphernalia. Although the Commonwealth does not rely on that sentence, we think that, under Perkins, the affidavit supports a finding of probable cause that the two cell phones identified in the affidavit were instrumentalities or contained evidence of crime, and that they would be found in the defendant's residence. To be sure, the affiant did not seek permission to search the residence for the phones associated with the case, asking, rather for authority to search there only for "any records linking WRIGHT to the telephone numbers (857) 800-7426 and more recently (781) 709-6425 used by CS-3 to purchase narcotics from WRIGHT." But we know of no rule prohibiting a judge or magistrate issuing a warrant authorizing a search for any item an affidavit demonstrates probable cause to believe is both evidence, fruit or instrumentality of crime, and will be found in the place to be searched, even if it is not specifically requested by the affiant.
By contrast, with respect to the stash house, the search of which is not at issue here, the affiant said, "I request that said search warrant allow officers to seize any phones and/or phone records associated with WRIGHT'S [drug trafficking organization]."
The harder question is presented by the actual wording in the warrant. The warrant itself states, "Additionally, I request that said search warrant allow officers to seize any phones and/or phone records associated with phone (857) 259-0919." Its syntax indicates that it was cut and pasted from a search warrant affidavit, although the language used does not come from the affidavit in this case. Nonetheless, this language appears in a paragraph that begins "YOU ARE THEREFORE COMMANDED within a reasonable time and in no event later than seven days from the issuance of this search warrant to search for the following property." Despite the way the sentence is written, we think an officer executing this warrant would understand it to support a search for, and the seizure of, the cell phone described.
A further hurdle, however, is presented by that description. The telephone described on the warrant -- the one with the number (857) 259-0919 -- is not related to this case. As described above, the officer did include in the affidavit two phone numbers associated with the defendant. But the number in the warrant is neither of them. This error is inexplicable, and serious.
Nonetheless, we think that, under our court's decision in Commonwealth v. Toledo, 66 Mass. App. Ct. 688, 699 (2006), suppression is not warranted. In that case, a warrant issued "authorizing a search of "80 West Newton st. apartment # 1310, Boston." Id. at 691. Although the affidavit mentioned that address several times, it "expressly stat[ed] that it sought a warrant to search 80 West Dedham Street," id. at 694, which was, in fact, where the officers searched.
Even though the warrant mistakenly authorized a search of a different house -- just as the warrant in this case mistakenly authorizes a search for a different cell phone -- the court upheld denial of the motion to suppress. The court said that because the affiant, who executed the warrant, had prepared it and had knowledge of what was in the affidavit, "there was no reasonable possibility, much less probability, that he would mistakenly search 80 West Newton Street, or any premises other than 80 West Dedham Street, the one address for which he was aware probable cause to search had been established, notwithstanding the address mistakenly mentioned in the warrant." Id. at 698. The same is true here. The court also went on to say, despite saying it was reasonable to conclude the officer himself had prepared the warrant as well as the application, id. at 699 n.17, "[e]ven 'if [the warrant was] so ambiguous as to be defective, we would see no prophylactic value in the application of the exclusionary rule in the circumstances of this case. The officers did nothing unreasonable which we would seek to deter from happening in the future.'" Id. at 699, quoting Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 582-583 (1982).
Consequently, as in Perkins, "[t]he affidavit here did not contain sufficient particularized information to justify a search of the defendant's apartment for drug-related records, proceeds, and paraphernalia." Perkins, 478 Mass. at 109. By contrast, the search for the cell phone authorized by the warrant was permissible, and the fruits of the search to that extent admissible. Most of what was seized could not have been found anyplace that could not have held a cell phone. We lack sufficient information, however, with respect to the search and seizure of paperwork, the envelope containing receipts, and the $380 in cash to make a determination "whether the search [in which they were found] exceeded the permissible scope of the warrant." Id. at 110. To the extent the defendant seeks to challenge the failure to suppress these items, therefore, further proceedings will be required. Thus, as in Perkins, we must remand for "further proceedings consistent with this opinion, to determine, consistent with this opinion, whether" the search that revealed the cash, the paperwork, and the receipts, "exceeded the permissible scope of the warrant." Id. at 110.
Conclusion. The order denying the motion to suppress is vacated only as to the paperwork, envelope containing receipts, and $380 found in the defendant's apartment; as to those items, the case is remanded for further proceedings consistent with this memorandum. The order is otherwise affirmed.
So ordered.
By the Court (Rubin, Maldonado & Shin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 6, 2020.