127 N.E.3d 282
Mass. App. Ct.2019Background
- Police sought warrants in Jan 2009 after investigating a June 2008 multimillion-dollar burglary of E.A. Dion and related burglaries; affidavit compiled by a state police lieutenant relied on the four corners of attached exhibits.
- The affidavit detailed the defendant’s long burglary history (including a 2004 Costco burglary using roof entry and a cell-phone jammer) and evidence of an ongoing criminal enterprise operating from two Lynn locations: 407 Walnut Street (home) and 725R Summer Street (warehouse).
- Key corroboration came from Laura Cooper, a former cohabitant, who described seeing burglary tools, climbing ropes, black clothing, and a cell-phone jammer in the warehouse in March 2008; she said the defendant researched targets on a warehouse computer and returned from a 2008 burglary with jewelry and other loot.
- Warrants were issued for the warehouse (seeking burglary tools and business/employee records) and for the home (seeking business records); searches were executed Jan 23, 2009, and various incriminating items were seized.
- The motion judge suppressed the seized evidence in Oct 2017, concluding the affidavit lacked facts connecting business records or burglary tools to the specific locations; the Commonwealth appealed.
Issues
| Issue | Commonwealth's Argument | Englander (Defendant) Argument | Held |
|---|---|---|---|
| Probable cause to search warehouse for burglary tools | Affidavit showed tools observed in warehouse, ongoing enterprise, tools likely remained or were replenished | Affidavit stale; tools already seized elsewhere | Warrant valid: ongoing enterprise and recent corroboration supported a timely nexus; probable cause established |
| Probable cause to search warehouse for business/employee records | Cooper said defendant researched targets on warehouse computer; business used to plan and employ crew => records likely present | No direct fact showing incriminating records at warehouse | Warrant valid: reasonable inference that operational records (purchases, maps, payroll) would be at warehouse |
| Probable cause to search home (407 Walnut) for business records | Defendant used home as business address; brought burglary proceeds home; business listed at that address => records likely there | No facts directly showing records of crimes at home | Warrant valid: nexus established by business use and storage of proceeds at home |
| Waiver / preservation of Commonwealth's appellate arguments | Commonwealth orally opposed suppression and raised arguments below | Defendant argued Commonwealth failed to preserve arguments by not filing written opposition | No waiver: oral argument sufficiently preserved the issues on probable cause and staleness |
Key Cases Cited
- Commonwealth v. O'Day, 440 Mass. 296 (review limited to four corners of affidavit)
- Commonwealth v. Santiago, 66 Mass. App. Ct. 515 (records inference from demonstrated ongoing criminal use)
- Commonwealth v. Perkins, 478 Mass. 97 (de novo review of probable cause from affidavit)
- Warden v. Hayden, 387 U.S. 294 (searches may seek evidence that aids apprehension; rejects "mere evidence" exclusion)
- Zurcher v. Stanford Daily, 436 U.S. 547 (warrants may be used to search for evidence)
- Commonwealth v. Pratt, 407 Mass. 647 (staleness not fatal where ongoing criminal operation shown)
- Texas v. Brown, 460 U.S. 730 (probable cause standard explanation)
- Commonwealth v. Lavigne, 418 Mass. 831 (records may be searched under warrant if relevant to apprehension or conviction)