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15-P-1672 Appeals Court
COMMONWEALTH vs. SANTOS PEREZ.1
No. 15-P-1672.
Bristol. September 8, 2016. - October 21, 2016.
Present: Green, Wolohojian, & Massing, JJ.
Controlled Substances. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Probable cause,
Warrant, Affidavit. Practice, Criminal, Motion to
suppress, Warrant, Affidavit. Probable Cause.
Indictments found and returned in the Superior Court
Department on November 29, 2012.
A pretrial motion to suppress evidence was heard by Raymond
P. Veary, Jr., J.
An application for leave to prosecute an interlocutory
appeal was heard by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
Alexandra H. Deal for the defendant.
1
Also known as Luis Reyes-Ayala.
2
MASSING, J. The Commonwealth appeals from the allowance of
the defendant's motion to suppress evidence seized from an
apartment in the execution of a search warrant. The motion
judge determined that the affidavit supporting the search
warrant application, which relied in part on information
provided by a confidential informant, did not satisfy the
probable cause standard under the Aguilar-Spinelli test.2
Reviewing the affidavit in its entirety, we conclude that the
application did establish probable cause to search for heroin in
the subject apartment. Accordingly, we reverse the order
allowing the motion to suppress.
Background. The defendant was indicted on charges of
trafficking in 200 grams or more of heroin, in violation of
G. L. c. 94C, § 32E(c)(4), and of manufacturing, distributing,
dispensing, or possessing with intent to manufacture,
distribute, or dispense heroin, G. L. c. 94C, § 32(a). It
appears3 that New Bedford police officers discovered a
substantial quantity of heroin when they executed the warrant
permitting them to search "172 Hathaway Street, apartment 3
2
See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969). See also Commonwealth v.
Upton, 394 Mass. 363, 374-377 (1985).
3
The record on appeal does not reveal exactly what was
seized from the apartment. Based on the indictment charging
trafficking in 200 grams or more of heroin, we can safely assume
that the police seized a nontrivial quantity from the apartment.
3
east" for controlled substances, "to include specifically
[h]eroin," as well as instrumentalities used in, records of, and
proceeds from the sale of controlled substances.
The affidavit in support of the search warrant application,
prepared by Lorenzo Gonzalez, III, a New Bedford police officer
with four years of experience, assigned as a detective in a unit
specializing in narcotics investigations, states that the New
Bedford police began an investigation of the defendant when they
received a confidential informant's tip that "a male by the name
of Luis Reyes,4 with a date of birth of September 30, 1969 . . .
was selling heroin out . . . of the aforementioned address."
The informant further stated that the defendant used the names
Javier Rios, date of birth February 13, 1969, and Salvador
Pimental. Gonzalez located records for Luis Reyes and Javier
Rios with the birth dates provided by the informant in the New
Bedford police database, as well as an expired Massachusetts
driver's license for Javier Rios, with the same date of birth,
in the Massachusetts Registry of Motor Vehicles (RMV) database.
Gonzalez compared the photographs associated with these records
and determined that they all depicted the same person.5
4
The affidavit refers throughout to "Luis Reyes." The
defendant admits that he used the name Luis Reyes as an alias.
5
The affidavit does not say whether the informant was shown
the photographs of the defendant. The informant further stated
that the defendant lived at the apartment with his son, Eric
4
During the week before Gonzalez applied for the search
warrant, the informant told Gonzalez that the defendant "would
be conducting a delivery of heroin from the residence of 172
Hathaway Street," and that he "would be operating a black
Chevrolet Malibu bearing Rhode Island registration plates." The
police conducted surveillance of the residence and observed the
car described by the informant, which was registered to a rental
company. A short time later, they observed the defendant and
another man get into this car, drive to another residence in New
Bedford, stop for a short time, then drive back "in the
direction of 172 Hathaway Street."6
Within seventy-two hours of applying for the search
warrant, the police supervised the informant in a controlled buy
from the defendant. Gonzalez searched the informant and
determined that the informant "was not in possession of any
illegal currency or contraband." The police gave the informant
an unspecified amount of money. Under surveillance, the
informant traveled to a prearranged location where he met with
Soto Cruz. Gonzalez verified that the utility bills for the
apartment were in the name of Eric Soto Cruz. He obtained
Cruz's driver's license photograph from the RMV database, and
the informant "positively identified the male in the photograph
as Eric Soto Cruz, who resides at 172 Hathaway Street, apartment
three (3) east."
6
Gonzalez wrote in the affidavit, "This affiant knows that
this behavior is consistent with street level narcotics
distribution."
5
the defendant. After the transaction, the officers followed the
defendant to 172 Hathaway Street. Gonzalez, meanwhile, followed
the informant to another location where the informant gave
Gonzalez an unspecified amount of heroin purchased from the
defendant.
On September 12, 2012, the informant told Gonzalez that the
defendant "would be conducting a delivery of heroin at
approximately 8:00 P.M." The police took up surveillance of 172
Hathaway Street and, at the designated hour, saw the defendant
and another man "exit the residence and get into a silver
vehicle," a Dodge Avenger with Rhode Island license plates. The
defendant drove7 the silver car to a Getty gasoline station on
Mount Pleasant Street in New Bedford and parked on the side of
the parking lot away from the gas pumps and mini-mart.
A short time later, a black Kia pulled into the gas station
and parked beside the silver car. Detective Sergeant Mark
Blouin, one of the surveillance officers, observed a hand-to-
hand transaction between the driver of the Kia and "the
occupants of the silver Dodge which occurred through the
passenger side window." The officers followed both cars after
7
The affidavit does not specify which seats the two men
assumed when they got into the car; however, the defendant was
seated in the driver's seat when the car was stopped later. As
the affidavit contains no information about anyone getting in or
out of the silver car, we infer that the defendant was in the
driver's seat the entire time.
6
they left the gas station. The officers stopped the Kia, which
was driven by Edward Combs, and searched it. Inside they
discovered "an amount of heroin which weighed approximately 11.9
grams." During police questioning, when asked whether he had
gotten "'a good deal' from the male whom Combs had just met up
with," Combs stated the he had just purchased "a full stick, or
ten grams" of heroin for $700. The New Bedford officers,
assisted by members of the State police, stopped the silver
Dodge on Route 24, "just north of the on-ramp following exit 17A
on Route 24 North." Three men occupied the car: the defendant,
sitting in the driver's seat, a man in the front passenger's
seat, and a man in the back seat. The police searched the men
and found "multiple cellular phones and a large sum of monies."
The defendant had $1,473 in cash: $973 loose in his pocket and
$500 in his wallet. The front seat passenger had $714 in cash:
$410 in his pocket and $304 in his wallet.
Fearing that word of the arrests would reach other
residents of the apartment, who might destroy any drugs secreted
there, New Bedford officers secured the premises while Gonzalez
sought a search warrant. Based on the information recited
above, a clerk-magistrate issued the warrant to search apartment
3 east of 172 Hathaway Street.
Discussion. Probable cause "nexus." "In reviewing the
sufficiency of the warrant application, our inquiry begins and
7
ends with the four corners of the affidavit that supported it."
Commonwealth v. Escalera, 462 Mass. 636, 638 (2012) (quotation
omitted). We must determine independently whether the affidavit
supporting the search warrant provides "a substantial basis for
concluding that any of the articles described in the warrant are
probably in the place to be searched." Commonwealth v. Upton,
394 Mass. 363, 370 (1985). "Strong reason to suspect is not
adequate." Ibid. "In dealing with probable cause, however, as
the very name implies, we deal with probabilities. These are
not technical; they are the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal
technicians, act." Brinegar v. United States, 338 U.S. 160, 175
(1949).
The motion judge began and ended his review of the search
warrant application by applying the Aguilar-Spinelli test to the
information that the confidential informant provided. We start
instead by reviewing the information obtained independently by
police investigation to determine whether the affidavit
established a "nexus" between the defendant's suspected drug
dealing and the target apartment. See Commonwealth v. O'Day,
440 Mass. 296, 302 (2003); Escalera, 462 Mass. at 642-643;
Commonwealth v. Tapia, 463 Mass. 721, 725-726 (2012).
1. Direct police observations. The police made three
observations that connected the defendant to the apartment, two
8
involving confirmed drug transactions. The first time, the
defendant and another man left the building and returned there
after driving to another location in New Bedford.8 Next, the
police observed the defendant returning to the apartment after
he participated in the controlled buy, although the affidavit
does not establish that he started out from the apartment to
conduct this transaction. See Escalera, 462 Mass. at 645 (with
respect to presence of drugs at defendant's home, "the suspect's
location immediately prior to the sale is of greater
significance to the nexus determination than are his activities
after the sale"). Finally, the police observed the defendant
and another man leave the apartment immediately before the sale
of ten grams of heroin to Combs for $700.
The police investigation, as described in the affidavit,
provided no other information to tie the defendant to the
apartment. The New Bedford police and RMV data bases did not
connect the defendant to 172 Hathaway Street. The police did
not observe him spend the night. Contrast Escalera, 462 Mass.
at 639. Although the utility bills were in Cruz's name, only
8
Although this trip corresponded to a heroin delivery
predicted by the informant, and Gonzalez stated that he "knows
that this behavior is consistent with street level narcotics
distribution," he reported no details to support that
conclusion. He did not observe any interaction, let alone any
exchange, that resembled an illegal drug transaction. See
Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998). Thus,
we attach little weight to Gonzalez's opinion.
9
the informant's word established that the defendant lived with
Cruz and that Cruz was the defendant's son. Apart from one
observation of the defendant leaving the apartment to sell
heroin and one observation of him entering the apartment after a
controlled buy, "the affidavit provides no details about the
amount and quantity of drugs the defendant had sold in the past,
or any other facts tending to demonstrate that the defendant
sold drugs from his apartment or that he kept his supply of
drugs there." Commonwealth v. Pina, 453 Mass. 438, 442 (2009).
However, we cannot and need not decide whether the
affidavit demonstrated probable cause by counting the number of
drug transactions the defendant originated from or concluded at
the apartment. "No bright-line rule can establish whether there
is a nexus between suspected drug dealing and a defendant's
home." Escalera, 462 Mass. at 643. Indeed, "[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. Accordingly, we turn to
the information provided by the informant to determine whether
it can be relied upon to strengthen the inference of a nexus
between the defendant's heroin trade and the apartment.
2. Informant's statement. The informant told Gonzalez
that the defendant "was selling heroin out . . . of the
10
aforementioned address." To assess the probative value of this
statement, we turn to the Aguilar-Spinelli test. "For
statements of confidential informants to be used in the
assessment of probable cause under art. 14, the Commonwealth
must satisfy the Aguilar-Spinelli test." Tapia, 463 Mass. at
729. "[Article] 14 requires that the affidavit apprise the
magistrate of some facts and circumstances showing both (1) the
basis of the informant's knowledge, and (2) the credibility of
the informant or the reliability of his information."
Commonwealth v. Blake, 413 Mass. 823, 826 (1992).
"[I]ndependent police corroboration can make up for deficiencies
in either or both prongs of the Aguilar-Spinelli test[;] . . .
however, . . . each element of the test must be separately
considered and satisfied or supplemented in some way." Upton,
394 Mass. at 376.
The affidavit satisfied the basis of knowledge test. The
informant provided detailed information about the defendant,
including his aliases and the birth dates associated with each
alias. He gave a detailed description of a rental car that the
defendant would be driving on one occasion. "The level of
detail the informant provided . . . was 'consistent with
personal observation, not mere recitation of a casual rumor.'"
O'Day, 440 Mass. at 301, quoting from Commonwealth v.
11
Alfonso A., 438 Mass. 372, 374 (2003). See Commonwealth v.
Cast, 407 Mass. 891, 897 (1990).
On the other hand, as the motion judge correctly noted, the
affidavit gave none of the usual indicia of reliability to
satisfy the veracity prong of Aguilar-Spinelli. The affidavit
did not state that the informant had a track record of providing
reliable information in past investigations. Compare
Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 104 (2016),
citing Commonwealth v. Crawford, 410 Mass. 75, 79 (1991).
However, the informant was not anonymous. See Alfonso A.,
438 Mass. at 375-376; Gonzalez, supra at 104-105. Moreover,
substantial police corroboration of the information supplied in
this investigation bolstered the informant's veracity. The
detailed information that the informant provided regarding the
defendant's aliases, associated birthdates, and the car he would
be driving all were proven accurate by subsequent police
investigation or surveillance. The informant accurately
predicted each occasion that the defendant would leave the
apartment, including the time of the final heroin sale leading
to the defendant's arrest.
The police also properly supervised the informant in a
controlled buy from the defendant. See Commonwealth v. Desper,
419 Mass. 163, 168 (1994) (discussing components of a properly
conducted controlled buy). "Without question, a properly
12
monitored controlled purchase of illegal drugs provides
sufficient corroborating evidence to overcome any shortfalls in
meeting the constitutional reliability requirements imposed on
confidential informants." Commonwealth v. Figueroa, 74 Mass.
App. Ct. 784, 787-788 (2009), rev'd on other grounds, 77 Mass.
App. Ct. 1117 (2010). Although the controlled buy did not occur
in the apartment and thus did not supply a strong nexus to that
location, it substantially corroborated the informant's veracity
and his status as a person with detailed knowledge of the
defendant's heroin dealings. See Commonwealth v. Welch, 420
Mass. 646, 652-653 (1995); Commonwealth v. Cruz, 53 Mass. App.
Ct. 24, 30 (2001).
We recognize that Gonzalez's affidavit was not a model of
detail or clarity. For example, the unexplained appearance of a
third man in the silver Dodge is puzzling.9 However, "the
affidavit should be read as a whole, not parsed, severed, and
subjected to hypercritical analysis." Blake, 413 Mass. at 827.
The minor omissions and discrepancies may well be explained by
9
However, we do not agree with the motion judge that this
detail "seriously undermined" the inferences supporting probable
cause to be drawn from the sale of heroin to Combs. Gonzalez
"observed this vehicle travel directly from the residence at 172
Hathaway St. to the Getty gas station on Mount Pleasant Street"
(emphasis supplied). "[T]he fact that he did not stop anywhere
en route indicates that he had the substance with him when he
left the premises and did not obtain it elsewhere on the way."
Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013).
13
Gonzalez's haste in preparing the warrant application while his
companion officers kept vigil over the premises.
The informant's reliability having been established, we may
use the informant's assertion that the defendant "was selling
heroin out . . . of" the Hathaway Street apartment to
substantiate the required nexus between the apartment and
articles of the drug trade. While the case is a close one, we
conclude that the affidavit's description of the defendant's
activities observed by police officers, coupled with the
information provided by a credible informant, was sufficient to
establish probable cause for a warrant to search the apartment
for drugs. "[T]he resolution of doubtful or marginal cases in
this area should be largely determined by the preference to be
accorded to warrants." Commonwealth v. Germain, 396 Mass. 413,
418 (1985), quoting from United States v. Ventresca, 380 U.S.
102, 108-109 (1965).
Conclusion. The order allowing the motion to suppress is
reversed.
So ordered.