Commonwealth v. Perez

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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.