Commonwealth v. Pina

Graham, J.

(dissenting). In evaluating the defendant’s argument that probable cause did not exist for the issuance of a search warrant of his apartment, “our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four comers of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). “The affidavit in its entirety must present a ‘substantial basis’ to conclude that drags or other drug paraphernalia will be found in the defendant’s residence.” Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 299 (2007), quoting from Commonwealth v. Donahue, 430 Mass. 710, 715 (2000). “Strong reason to suspect [that contraband will be found there] is not adequate.” Commonwealth v. Upton, 394 Mass. 363, 370 (1985). I am constrained to agree with the defendant that the affidavit of Detective Safioleas failed to present such a substantial basis or permit a determination that drugs and related paraphernalia and records would probably be located at the defendant’s residence. Accordingly, I dissent.

While Safioleas’s affidavit provided ample probable cause for the arrest of the defendant for ongoing drug dealing activity, it did not contain sufficiently particularized information connecting the defendant’s apartment to his illegal drug activities, other than the fact that he lived at those premises. Based on the affidavit, the defendant sold drugs in unspecified amounts over an unspecified period of time to a confidential police informant. The informant telephoned the defendant seeking drugs, and the defendant gave the informant a location away from the apartment where the transaction would occur. The fact that the defendant was at home when he received the telephone call for the single controlled purchase, and necessarily had to leave his home to make the sale, fails logically to provide a sufficient link of the defendant’s residence to drug activity. See Com*660monwealth v. Olivares, 30 Mass. App. Ct. 596, 600 (1991) (no specific information in affidavit tying defendant’s residence to illegal drug transactions, other than that he lived at those premises); Commonwealth v. Laughlin, 40 Mass. App. Ct. 926, 926 (1996) (no evidence in affidavit other than that defendant was drug dealer who lived at residence searched); Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908 (2003); Commonwealth v. Stegemann, 68 Mass. App. at 300.

Nothing in the affidavit suggests that drugs would be found in the defendant’s apartment three days after the controlled purchase that took place at a location away from the apartment. The circumstances here are distinguishable from the cases in which police were able to corroborate their suspicions that the defendant kept illegal drugs in his residence. See, e.g., Commonwealth v. O’Day, 440 Mass. at 303-304 (probable cause to search defendant’s home was warranted given value and quantity of drugs that defendant sold each evening, frequency of visitors to his home, and signs at defendant’s home warning unwanted visitors from entering); Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 104, 106-107 (2007) (magistrate could infer that defendant had illegal drugs in his residence where affidavit disclosed that defendant [1] regularly sold cocaine to a confidential informant, [2] sold cocaine on “a steady basis” to others, [3] was able to provide large quantities of cocaine, [4] had been arrested for and was currently under investigation for illegal narcotic sales, and [5] engaged in two controlled drug transactions with the confidential informant, the second transaction within forty-eight hours of preparation of affidavit, involving a “large amount” of a white powdery substance containing cocaine).

Consequently, the police lacked probable cause to search the defendant’s residence, and his motion to suppress the evidence seized therefrom was properly allowed.