27 N.E.3d 1272
Mass.2015Background
- Police investigated Carlos Colondres ("Loso") for selling heroin and cocaine; a confidential source (CS) made two controlled buys from Carlos after telephoning him to arrange sales.
- Surveillance showed Carlos traveling from 14 Berkeley St. to 250 Oakgrove Ave., Apt. 304, entering the apartment briefly with keys, then leaving to complete the sales.
- Officer Wadlegger applied for an anticipatory search warrant for Apt. 304 stating that if Carlos retrieved cocaine from the apartment and delivered it to a customer in the South End, that event would trigger probable cause to search the apartment.
- A clerk‑magistrate issued the warrant. Later the police observed Carlos go to the apartment, leave, and were unable to wait for a delivery; they arrested him and, incident to arrest, found two bags of cocaine on his person.
- Police then executed the warrant and seized large quantities of cocaine, heroin, marijuana, Ecstasy, and packaging materials from the apartment.
- The defendant moved to suppress, arguing the warrant’s triggering event (a delivery) did not occur; the motion judge denied suppression, and the SJC affirmed on the ground that equivalent compliance satisfied the anticipatory warrant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the warrant was an anticipatory warrant | Commonwealth: affidavit set a triggering event; warrant valid as anticipatory | Colondres: triggering delivery did not occur, so the warrant never took effect | Warrant was anticipatory (affidavit need not recite trigger on face); anticipatory framework applies |
| Whether strict literal compliance with the triggering condition is required | Commonwealth: execution valid because events gave equivalent support for probable cause | Colondres: police did not wait for the delivery; lack of strict compliance voids warrant | Equivalent (substantial) compliance is sufficient where the actual facts support the same inference as the stated trigger |
| Whether equivalent compliance here established probable cause to search the residence | Commonwealth: cocaine found on Carlos substituted for the unreached delivery and, together with prior controlled buys and surveillance, established a nexus to the apartment | Colondres: seizure followed an unauthorized search because trigger failed | Held: Commonwealth proved the actual facts were at least as probative as the predicted delivery; there was a sufficient nexus to the residence |
| Whether police conduct (arrest/search of Carlos) improperly frustrated the trigger | Colondres: police interrupted the planned triggering event, so warrant never activated | Commonwealth: police action resulted in evidence that was equivalent to the anticipated trigger | Held: Interruption does not automatically void an anticipatory warrant; courts assess whether the resulting facts provide equivalent support for probable cause |
Key Cases Cited
- Commonwealth v. Williams, 431 Mass. 71 (discussing that anticipatory warrant need not recite triggering event on its face)
- United States v. Grubbs, 547 U.S. 90 (constitutional requirements for anticipatory warrants and dual probable‑cause showing)
- Commonwealth v. Gauthier, 425 Mass. 37 (interpreting triggering‑event language and sensible, contextual reading of anticipatory warrants)
- Commonwealth v. Staines, 441 Mass. 521 (definition: anticipatory warrant takes effect at a specified future time)
- United States v. Rowland, 145 F.3d 1194 (discussing probable‑cause determination "reaching fruition" upon trigger)
- United States v. Garcia, 882 F.2d 699 (approving substantial/equivalent compliance analysis for anticipatory warrants)
- Commonwealth v. Cruz, 430 Mass. 838 (distinguishing anticipatory from traditional warrants where probable cause exists at issuance)
- Commonwealth v. Tapia, 463 Mass. 721 (nexus requirement to search a residence)
- Commonwealth v. Donahue, 430 Mass. 710 (probable‑cause nexus for residences)
- Commonwealth v. Cinelli, 389 Mass. 197 (permitting inference‑based nexus to locate contraband)
- Commonwealth v. Escalera, 462 Mass. 636 (observations of repeated trips from residence to sales location can establish a stash‑house nexus)