Commonwealth v. Colondres

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SJC-11725

COMMONWEALTH vs. JOHNNY COLONDRES.

Hampden. December 2, 2014. - April 13, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Controlled Substances. Search and Seizure, Warrant, Affidavit,
Probable cause, Search incident to lawful arrest.
Constitutional Law, Search and seizure, Probable cause.
Probable Cause. Practice, Criminal, Warrant, Affidavit,
Motion to suppress.

Indictments found and returned in the Superior Court
Department on March 7, 2012.

A pretrial motion to suppress evidence was heard by
C. Jeffrey Kinder, J., and the cases were heard by Tina S.
Page, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Merritt Schnipper for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
 2

GANTS, C.J. Before trial, the defendant, Johnny Colondres,

moved to suppress evidence obtained from his apartment by

Springfield police during the execution of an "anticipatory

search warrant." The defendant claimed that police had executed

the search before the "triggering events" stated in the

affidavit had occurred, and that therefore the search should be

treated as warrantless and the evidence suppressed. The motion

judge denied the defendant's motion to suppress and, after a

jury-waived trial before a different judge, the defendant was

convicted of trafficking in heroin and cocaine, and of unlawful

possession of marijuana with intent to distribute.1 The

defendant appealed, and we granted his application for direct

appellate review. We conclude that where, as here, the

Commonwealth applies for an anticipatory search warrant and the

judicial authorization to execute the search is conditioned on

the occurrence of a specific future event, the search is

authorized by the warrant where there is equivalent compliance

with that condition precedent. Because we conclude that, in

this case, there was both equivalent compliance with the

warrant's condition precedent and probable cause to search the

1
The defendant was sentenced to from eleven to thirteen
years in State prison on the trafficking convictions, and one
year in the house of correction on the possession with intent to
distribute conviction, all to be served concurrently. He was
found not guilty on an indictment charging possession of
"Ecstasy" pills with intent to distribute.
 3

defendant's residence once equivalent compliance was achieved,

we affirm the denial of the motion to suppress and the resulting

convictions.

Background. The facts are not in dispute. The search of

the defendant's apartment at 250 Oakgrove Avenue in Springfield

arose out of an investigation by the Springfield police

department of the defendant's nephew, Carlos Colondres.2 As

detailed in the affidavit by Officer John Wadlegger in support

of the application for the warrant to search the defendant's

apartment, the police were investigating the sale of cocaine and

heroin by a man known as "Loso." The investigation was assisted

by an anonymous "cooperating source" (CS), who informed Officer

Wadlegger that the CS had purchased cocaine from Loso "numerous

times over the past month." The CS provided Officer Wadlegger

with Loso's cellular telephone number and the license plate

numbers of the two vehicles Loso operated, one of which the CS

identified as belonging to Loso's girl friend. The CS informed

Officer Wadlegger that Loso lived with his girl friend "on a

side street off of St. James Ave. in Springfield." The CS also

informed Officer Wadlegger that the CS had seen Loso in

possession of heroin for sale, and that Loso had offered to sell

heroin to the CS.

2
Because Carlos Colondres has the same last name as the
defendant, we refer to him as Carlos to avoid confusion.
 4

After conducting a registry of motor vehicles inquiry,

Officer Wadlegger determined that one of the vehicles identified

by the CS was registered to Carlos, and the second vehicle was

registered to a woman named Mychael Barnett who lived at 14

Berkeley Street in Springfield.3 When Officer Wadlegger showed

the CS the registry of motor vehicles photograph of Carlos, the

CS positively identified Carlos as Loso. Officer Wadlegger

conducted a surveillance of 14 Berkeley Street and observed both

vehicles parked in front of the address. He also observed

Carlos leave that address, travel to 250 Oakgrove Avenue, and

enter the building at that address. Carlos reemerged a short

time later and returned to 14 Berkeley Street.

Officer Wadlegger arranged for the CS to conduct two

"controlled buys" of narcotics from Carlos. The first was

initiated "[d]uring the week of December 25, 2011," when the CS

telephoned Carlos and asked to purchase heroin from him; the

second was initiated "[d]uring the week of January 8, 2012,"

when the CS telephoned Carlos and asked to purchase cocaine.

During both initiating telephone calls, Carlos told the CS to

meet him at a prearranged location; during the conversation

initiating the second controlled purchase, Carlos explained that

3
The Commonwealth claimed in its opposition to the
defendant's motion to suppress that 14 Berkeley Street is only
0.2 miles from St. James Avenue in Springfield, but this
information was not included in Officer John Wadlegger's
affidavit in support of his application for a search warrant.
 5

he "had to go and pick up the cocaine for the sale." Following

the telephone conversations, police conducted a surveillance of

Carlos's movements, observing the same sequence of events on

both occasions. Carlos traveled to 250 Oakgrove Avenue in

Springfield, where he parked his vehicle and entered the

building. Carlos took the elevator to the third floor and

entered apartment 304 with a set of keys.4 A short time later,

Carlos left the building and traveled to the arranged meeting

location, where he met with the CS. After the meetings, Carlos

returned to 14 Berkeley Street, and the CS met with Officer

Wadlegger to turn over the drugs that the CS had purchased from

Carlos using "buy money" the CS had been provided by the police.5

On January 19, 2012, Officer Wadlegger applied for a search

warrant for the defendant's apartment. In his affidavit,

Officer Wadlegger said that, based on his training and

experience and on the information obtained through his

investigation, the defendant's apartment was being used as a

4
After the first controlled purchase, Officer Wadlegger
entered the entryway of the building at 250 Oakgrove Avenue and
saw the defendant's name on the mailbox for apartment 304.
5
Before both controlled purchases, police searched the
confidential source (CS) for "currency and/or contraband" and
found none. The drugs that the CS turned over were "field
tested" by police, with the drugs from the first controlled
purchase testing positive for heroin, and the drugs from the
second controlled purchase testing positive for cocaine.
 6

"stash house" to store narcotics and cash.6 He stated in the

affidavit that he was "requesting an anticipatory search warrant

for 250 Oakgrove Ave., Apt. #304." He also attested that,

between 6 P.M. and 8 P.M. that day, he received information from

the CS that Carlos "would be making a delivery of cocaine to the

South End section of the city," and "would be leaving 14

Berkeley St. and then going to 250 Oakgrove Ave., Apt 304 to

retrieve the cocaine," which Carlos would then deliver to the

customer. Officer Wadlegger declared in his affidavit, "If this

occurs, this will trigger probable cause to believe that cocaine

is being kept inside 250 Oakgrove Ave., Apt #304."

Based on the affidavit, a warrant was issued by an

assistant clerk-magistrate of the Springfield Division of the

District Court Department to search the defendant's apartment

for cocaine, as well as for drug paraphernalia, monies, and

personal papers. Later that day, the police observed Carlos

travel from 14 Berkeley Street to the defendant's apartment,

leave a short time later, and reenter his vehicle. At that

time, not waiting for Carlos to make the anticipated delivery of

cocaine, the police approached Carlos, removed him from the

6
Officer Wadlegger explained in his affidavit that it is
"quite common for upper level narcotics dealers" to have a
"stash house" to protect their cash and narcotics from "'Rip
Off' crews" and other rival drug dealers, and to reduce the
likelihood that a cooperating source could inform police where
the dealers store their cash and narcotics.
 7

vehicle, and placed him under arrest. During the search

incident to arrest, two bags of cocaine, one weighing

approximately 57 grams and the other 4.5 grams, were seized from

Carlos's person. The police then executed the search warrant

for the defendant's apartment, seizing approximately 1,700 grams

of cocaine, 878 tablets of "Ecstasy," 101 grams of heroin, one

pound of marijuana, and drug packaging paraphernalia.7

The defendant moved to suppress the evidence obtained from

the search, claiming that the search was not authorized by the

warrant because it was conducted without the occurrence of the

warrant's triggering event, i.e., the delivery of cocaine by

Carlos to someone in the South End of Springfield. In denying

the defendant's motion to suppress, the motion judge concluded

that the warrant to search the defendant's apartment was not an

anticipatory search warrant. He recognized that "the affiant

. . . viewed probable cause as anticipatory," but found "no such

limitation in the warrant itself," which commanded a search of

the apartment within a reasonable time within seven days and

"was not predicated on the occurrence of any triggering event."

The judge also found that the search warrant affidavit

7
The defendant was at home when the police knocked and
announced themselves but he did not answer the door. When the
police forced open the door and entered the apartment, they saw
the defendant running from a couch in the living room before he
was secured.
 8

"established probable cause that evidence of criminal activity

would be found" at the apartment, "whether or not the triggering

events occurred." Having found that the search warrant was not

anticipatory and that there was probable cause to support the

warrant regardless of whether the triggering events occurred,

the judge denied the motion to suppress.

Discussion. We address first the judge's conclusion that

the search warrant was not anticipatory because the warrant

itself did not declare that a triggering event was a condition

precedent to the execution of the search. An anticipatory

search warrant is "not require[d] . . . to contain on its face

explicit directions about the triggering event, as long as the

conditions precedent to the warrant's execution are contained in

the affidavit supporting the application for the warrant."

Commonwealth v. Williams, 431 Mass. 71, 73 (2000). See United

States v. Grubbs, 547 U.S. 90, 97-99 (2006); Commonwealth v.

Gauthier, 425 Mass. 37, 41-45 (1997). Because the affidavit

here set forth the triggering events that were the conditions

precedent to execution of the warrant, the failure of the

warrant to recite those events on its face did not prevent the

warrant from being an anticipatory search warrant.

"An anticipatory search warrant is a warrant that takes

effect at a specified future time and not on its issuance."

Commonwealth v. Staines, 441 Mass. 521, 525 (2004). See
 9

Commonwealth v. Cruz, 430 Mass. 838, 844 n.3 (2000), quoting

United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert.

denied sub nom. Grant v. United States, 493 U.S. 943 (1989) ("An

anticipatory warrant, by definition, is a warrant that has been

issued before the necessary events have occurred which will

allow a constitutional search of the premises; if those events

do not transpire, the warrant is void"). See also Grubbs, 547

U.S. at 94, quoting 2 W.R. LaFave, Search and Seizure § 3.7(c),

at 398 (4th ed. 2004) ("An anticipatory warrant is 'a warrant

based upon an affidavit showing probable cause that at some

future time [but not presently] certain evidence of crime will

be located at a specific place'"). Implicit in this definition

is that the occurrence of the "so-called 'triggering condition'"

specified in the affidavit is necessary to establish probable

cause and therefore is a condition precedent to the execution of

the warrant. See Grubbs, supra ("by definition, the triggering

condition which establishes probable cause has not yet been

satisfied when the warrant is issued"). Cf. Cruz, supra at 843-

844 ("Because probable cause existed at the time the warrant was

issued, it was not an anticipatory warrant"). The judge or

clerk-magistrate who authorizes an anticipatory warrant must

find probable cause to believe that the evidence particularized

in the warrant "will be found when the search is conducted"

(emphasis in original), Grubbs, supra at 95, not when the search
 10

is authorized. See Staines, supra. The authorization of the

search, therefore, is conditioned on the occurrence of the

triggering condition, because only then will the judge's or

clerk-magistrate's "probable cause determination at the time of

issuance [have] reached fruition." United States v. Rowland,

145 F.3d 1194, 1202 (10th Cir. 1998).

Because judicial authorization for the search depends on

the occurrence of the condition precedent, the triggering

condition must be "clearly and narrowly defined," Gauthier, 425

Mass. at 43, both "to avoid misunderstanding or manipulation by

government agents," id. at 44, quoting United States v.

Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993), and to permit a

court to determine whether the triggering condition has

occurred. See Gauthier, supra. Here, the triggering conditions

were clearly defined: Carlos would leave his residence at 14

Berkeley Street, travel to the defendant's apartment at 250

Oakgrove Avenue, and then make a delivery to the customer. The

first two conditions occurred; the third did not because Carlos

was arrested after he left the defendant's apartment.

If strict compliance with the triggering conditions is

required, the conditions were not met and the search of the

defendant's apartment was not authorized by the warrant.

However, if equivalent compliance is required, the triggering

conditions were met because Carlos's delivery of the cocaine was
 11

instrumental in establishing probable cause only because it

would have demonstrated that Carlos had obtained cocaine from

the apartment, and that was demonstrated without a delivery once

two bags of cocaine were found on his person during the search

incident to arrest. In effect, the police substituted the

discovery of the bags of cocaine on Carlos's person for the

delivery of at least some of that cocaine to a third person.

We conclude that the execution of a search is authorized by

an anticipatory search warrant once there is equivalent

compliance, albeit not strict compliance, with the triggering

conditions in the affidavit. An anticipatory search warrant, by

definition, "takes effect at a specified future time," Staines,

441 Mass. at 525, which means that the affidavit supporting it

must make a prediction about the future events that will trigger

the warrant. Because the future rarely goes exactly according

to plan, the benefits of an anticipatory warrant would too often

be lost if we required that the triggering conditions be

satisfied to the letter before the warrant takes effect.8

8
"[O]ne of the major practical difficulties that confronts
law enforcement officials is the time required to obtain a
warrant. In many instances, the speed with which government
agents are required to act . . . demands that they proceed
without a warrant or risk losing both criminal and
contraband. . . . The question . . . is whether the objective
of the [F]ourth [A]mendment [to the United States Constitution]
is better served by allowing an agent to obtain a warrant in
advance of the delivery, or whether it is better served by
forcing him to go to the scene without a warrant, and, if
 12

In determining whether there has been equivalent

compliance, we look to the inference that would have been drawn

had the triggering conditions stated in the affidavit occurred -

- here, that the cocaine in Carlos's possession was obtained

from a stash in the defendant's apartment -- and determine

whether the weight of that inference is as strong or stronger

under the actual conditions. The Commonwealth bears the burden

of proving that the conditions that actually gave rise to the

search were as or more likely to establish probable cause as the

triggering conditions stated in the affidavit. Cf. United

States v. Miggins, 302 F.3d 384, 394-397 (6th Cir.), cert.

denied sub. nom. Moore v. United States, 537 U.S. 1097 (2002),

cert. denied, 537 U.S. 1130, and cert. denied sub. nom.

McDaniels v. United States, 538 U.S. 971 (2003) (reading

affidavit in "commonsense fashion" and concluding that

triggering condition, which required delivery and acceptance of

parcel containing cocaine by someone inside residence, was met

where someone who had been previously inside residence greeted

delivery person outside, accepted parcel, and immediately left

with it in vehicle, because these events "sufficiently

necessary, proceed under the constraints of the 'exigent
circumstances' exception, subject always to the risk of 'being
second-guessed' by judicial authorities at a later date as to
whether the known facts legally justified the search." United
States v. Garcia, 882 F.2d 699, 703 (2d Cir.), cert. denied sub.
nom. Grant v. United States, 493 U.S. 943 (1989), quoting 1 W.R.
LaFave, Search and Seizure § 3.7(c), at 700-701 (1978).
 13

establishe[d] a connection between the parcel and someone who

ha[d] access to the residence to which the parcel [was]

addressed"); People v. Martini, 265 Ill. App. 3d 698, 708-710

(1994) ("the standard to be adhered to in the context of police

execution of 'anticipatory' search warrants is the substantial

compliance standard," and was satisfied where "strict

compliance" was "not necessary"). Although here, by arresting

Carlos, the police actively interrupted the sequence of events

that the affidavit had said would trigger the warrant, that

should not prevent the warrant from taking effect where the

police otherwise established facts that provided equal support

for the same inference on which the probable cause determination

approved by the clerk-magistrate had been based.9

The requirement of equivalent compliance comports with our

opinion in Commonwealth v. Gauthier, 425 Mass. 37 (1997). Under

the anticipatory warrant authorized in that case, there were

three triggering conditions for the execution of the search

warrant of the defendant's residence: (1) the confidential

informant was to place an order to purchase marijuana from the

9
The record before the motion judge is silent as to why
police chose to arrest Carlos and search him for cocaine rather
than wait and see if he made the anticipated delivery. But we
recognize that there will sometimes be good reason for police to
make such a choice in response to a developing situation, for
instance, out of concern that crucial evidence will be lost or
destroyed or that the identity of a confidential informant will
be revealed.
 14

dealer identified in the affidavit, (2) the dealer was to enter

the defendant's residence (where marijuana was allegedly

stored), and (3) marijuana was to be found on the dealer after

he was searched upon leaving the residence. Id. at 39. The

first two conditions were met, but we concluded that the third

was not, because the police officer did not search the dealer as

he was leaving the residence but instead waited until the

officer saw him enter the vehicle that he had driven to the

defendant's residence and place something on the floor behind

the driver's seat.10 Id. at 40-41. We declared, "The triggering

event language in warrants such as this one should be read

sensibly and in context, and, when that is done, we must

conclude that the triggering event failed to materialize here."

Id. at 41. We reached that conclusion not simply because the

delay in searching the dealer departed from the letter of the

third condition, but because the actual evidence of probable

cause was significantly weaker where the marijuana was found in

the dealer's vehicle rather than on his person as he was leaving

the defendant's residence. We noted that the police officer did

not testify that he saw the dealer carry the package as he left

10
The dealer drove off before the police could reach him to
conduct a search. He was finally stopped by the police one and
one-half miles from the defendant's residence, "following an
attempted escape." The police searched the vehicle and found a
bag containing marijuana behind the driver's seat. Commonwealth
v. Gauthier, 425 Mass. 37, 39-40 (1997).
 15

the defendant's residence, and we further noted that where the

driver of the vehicle "was himself an active dealer in

narcotics," it was "possible that he had that particular bag of

narcotics in the car all along." Id. at 40-41.

Our conclusion that equivalent compliance with the

triggering conditions is sufficient to authorize the execution

of the search warrant does not give "unfettered discretion" to

the police. See Ricciardelli, 998 F.2d. at 12 ("magistrates who

are asked to issue such warrants must be particularly vigilant

in ensuring that the opportunities for exercising unfettered

discretion are eliminated"). Although the police are not bound

to the strict letter of the triggering conditions, they are very

much fettered: where probable cause depends on compliance with

the triggering conditions and the police do not strictly comply

with those conditions, the Commonwealth must demonstrate at the

motion to suppress hearing that the inference supporting

probable cause was at least as strong from the conditions that

actually gave rise to the search as it would have been from the

triggering conditions stated in the affidavit. Failing that,

the motion judge will rule that the execution of the search was

not authorized by the warrant, and any fruits will be suppressed
 16

unless the Commonwealth proves that the search was lawful as a

warrantless search.11

11
Because we conclude that there was equivalent compliance
with the triggering conditions in this case, we need not
consider whether a search is authorized by an anticipatory
warrant where there is not equivalent compliance with the
triggering conditions but where the information in the affidavit
provided probable cause at the time the search warrant was
approved regardless of whether there was compliance with the
triggering conditions. See Gauthier, 425 Mass. at 38 n.1. See
also United States v. Vigneau, 187 F.3d 70, 80 (1st Cir. 1999),
cert. denied, 528 U.S. 1172 (2000) ("whether the condition was
satisfied . . . is beside the point" where "leaving the package
at the door did nothing to establish probable cause to search
the premises" and "probable cause existed to search the premises
without delivery of the package [emphasis in original]").

Where an affiant believes that there might be probable
cause to conduct a search without any triggering conditions but
that probable cause would be stronger with triggering conditions
(e.g., where an affiant believes that the evidence described in
the affidavit might be regarded as stale), the affiant may
request in the affidavit both an anticipatory and a traditional
warrant to search the premises. A judge or clerk-magistrate
will determine whether to issue an anticipatory search warrant
based on whether there will be probable cause for the search
once the triggering condition is satisfied, and whether there is
probable cause to believe that the triggering condition will
occur. See United States v. Grubbs, 547 U.S. 90, 96-97 (2006),
quoting Illinois v. Gates, 462 U.S. 213, 238 (1983) ("[F]or a
conditioned anticipatory warrant to comply with the Fourth
Amendment's requirement of probable cause, two prerequisites of
probability must be satisfied. It must be true not only that if
the triggering condition occurs 'there is a fair probability
that contraband or evidence of a crime will be found in a
particular place,' . . . but also that there is probable cause
to believe the triggering condition will occur" [emphasis in
original]). The judge or clerk-magistrate will determine
whether to issue a traditional search warrant based on whether
there is probable cause for the search at the time of the
warrant request. If the warrant is allowed as both an
anticipatory and a traditional warrant (and the judge or clerk-
magistrate should so specify), a judge deciding a motion to
suppress the search should treat the warrant as an anticipatory
 17

Having found equivalent compliance with the triggering

conditions, we conclude that compliance with those conditions

provided probable cause to believe that evidence of Carlos's

drug trafficking would be located at the defendant's residence,

which Carlos appeared to use as a "stash house."12 Where, as

here, "the place to be searched is a residence," a showing of

probable cause requires that the affidavit establish "a

sufficient nexus" connecting the residence with evidence of

criminal activity, by "provid[ing] a substantial basis for

concluding that [such] evidence" will be found at the residence.

Commonwealth v. Tapia, 463 Mass. 721, 725-726 (2012), quoting

Commonwealth v. Pina, 453 Mass. 438, 441 (2009), and

Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). This nexus

"need not be based on direct observation," Donahue, supra,

quoting Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.

denied, 464 U.S. 860 (1983), but "may be found in ' . . . normal

inferences as to where a criminal would be likely to hide' the

drugs he sells." Commonwealth v. O'Day, 440 Mass. 296, 302

(2003), quoting Cinelli, supra. Although "[n]o bright-line rule

can establish whether there is a nexus between suspected drug

warrant if there is equivalent compliance with the triggering
condition and as a traditional warrant if there is not.
12
The defendant does not contend that there was not
probable cause to believe that Carlos was engaged in drug
trafficking at the time of his arrest.
 18

dealing and a defendant's home . . . [,] [o]bservations by

police of a suspect on multiple occasions leaving his residence

and proceeding directly to a prearranged location to sell drugs

can support a reasonable inference that the suspect is a drug

dealer who stores drugs or packages drugs for resale in his

residence." Commonwealth v. Escalera, 462 Mass. 636, 643 (2012)

(citing cases).

Officer Wadlegger's affidavit specified that during two

controlled purchases, one during "the week of December 25,

2011," and the second during "the week of January 8, 2012," the

police observed that, shortly after the CS had telephoned Carlos

to initiate the purchase of heroin or cocaine, Carlos left his

residence and stopped briefly at the defendant's apartment

before delivering the heroin or cocaine to the CS.13 If there

was any risk that the information regarding the earlier

controlled purchases was stale or that it was insufficient to

establish a pattern connecting the defendant's residence with

Carlos's drug trafficking, that risk was eliminated when, in

equivalent compliance with the triggering conditions for

execution of the search, the same pattern was repeated by Carlos

before he was found with two bags of cocaine on his person

outside the defendant's apartment. Considered together with

13
Carlos told the CS prior to one of these controlled
purchases that Carlos "had to go and pick up the cocaine."
 19

Officer Wadlegger's statement that, based on his experience,

narcotics dealers commonly store drugs at "stash houses" located

somewhere other than their primary residences, this evidence

provided probable cause to believe that Carlos used the

defendant's residence as a "stash house" from which he retrieved

drugs when he needed them for a sale.14

Conclusion. We therefore conclude, for reasons other than

those found by the motion judge, that the defendant's motion to

suppress was properly denied. The defendant's convictions are

affirmed.

So ordered.

14
For an anticipatory warrant to comply with the Fourth
Amendment, there must not only be probable cause for the search
once the triggering condition is satisfied; there must also be
probable cause to believe that the triggering condition will
occur. See Grubbs, 547 U.S. at 95-97. The defendant does not
specifically challenge on appeal whether there was probable
cause to believe that the triggering conditions set forth in the
affidavit would occur. Even if he had, such a challenge would
fail, because the belief that the triggering conditions would
occur was based on information from the CS, and in denying the
motion to suppress, the motion judge implicitly found that the
CS's basis of knowledge and veracity had been established in the
affidavit (as required to show probable cause) from the
corroboration obtained through independent police investigation
of the information provided by the CS and through the two
controlled purchases. See, e.g., Commonwealth v. Tapia, 463
Mass. 721, 728-730 (2012).