Based on a confidential informant’s tip and surveillance that included controlled drug purchases, Brockton police obtained a warrant to search the defendant’s apartment. Officers found cocaine, cash, and a small digital scale in the apartment. They also searched the locked basement of the apartment building and found over thirty grams of heroin, two handguns, and loose ammunition. Following a jury trial in the Superior Court, the defendant was convicted of trafficking in heroin, G. L. c. 94C, § 32E (c); possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c); corresponding school zone violations, G. L. c. 94C, § 32J; unlawful possession of a firearm without a firearm identification (FID) card, G. L. c. 269, § 10 (A);
A divided panel of the Appeals Court determined that the defendant’s motion to suppress was properly denied because a sufficient nexus between the suspected drug dealing and the defendant’s apartment had been established, and because the defendant had no objectively reasonable expectation of privacy in the basement of the apartment building. However, based on its conclusion that the admission at trial of certificates of drug and ballistics analysis without the testimony of analysts who had performed the tests violated the defendant’s confrontation right under the Sixth Amendment to the United States Constitution, the Appeals Court reversed all convictions except that of
We conclude that the search warrant application established probable cause to believe that evidence of the defendant’s drug dealing would be found in his apartment, and that the motion judge did not err in finding that the basement was within the curtilage of the defendant’s apartment. However, we conclude that, because the admission in evidence of the certificates violated the defendant’s confrontation right under the Sixth Amendment, the defendant is entitled to a new trial.
Background. On April 11, 2005, Detective Timothy Stanton of the Brockton police department obtained a warrant to search 449 North Main Street, apartment no. 2, in Brockton (apartment). In reviewing the sufficiency of the warrant application, our inquiry “begins and ends with the ‘four comers of the affidavit’ ” that supported it. Commonwealth v. O’Day,
In late March, 2005, Stanton, an eleven-year veteran of the Brockton police department, with training and experience in narcotics investigations, had a conversation with a confidential informant who stated that “he knew of a dark skinned Hispanic male who was selling heroin” in varying amounts and prices in Brockton. The informant stated that the heroin dealer walked with a pronounced limp; that he could be reached at either of two telephone numbers that the informant provided to Stanton; and that the dealer would ask “how many” and then provide a location where he would meet a purchaser to exchange money for heroin. According to the informant, the dealer would arrive at the location either in a white Toyota sedan or a “ ‘sharp’ looking” green Audi sedan with tinted windows and after-market wheels. The informant stated also that the dealer had described ownership of several firearms and rifles and that he had indicated
The informant said he would be willing to make a controlled purchase of drugs from this dealer, the male whom the informant later identified as the defendant from a photograph in police records. Over the course of the next two weeks, Stanton arranged to have the informant conduct four controlled heroin purchases. On each occasion, the informant called one of the telephone numbers he had provided; a male asked, “What do you need?” and the informant requested a specific quantity of heroin (either “one” or “two”). After searching the informant to ensure that he was not concealing drugs, Stanton provided the cash for the purchases, in amounts ranging from forty to one hundred dollars.
On the day of the first controlled purchase, as on each of the three subsequent occasions, the defendant arrived at the designated location within several minutes of the informant’s telephone call, driving either the green Audi sedan with customized wheels or a white Toyota; the informant got into the vehicle and took a short ride. Each time after leaving the vehicle, the informant met with Stanton and gave him what he had purchased. The informant said that he sat next to the defendant during the drive, and the defendant produced from his person one or two clear plastic bags containing a brown substance that he exchanged with the informant for cash. Field tests conducted on the brown substance after each sale produced positive results for heroin.
Other detectives involved in surveillance of the transactions followed the defendant’s vehicle and reported to Stanton that, on each of the four dates, the defendant drove directly to 449 North Main Street (apartment building); he was observed leaving his vehicle and walking with a pronounced limp to the building, which he entered through a door located at the southeast comer. After the defendant returned from two of the controlled purchases, police reported that they did not see the defendant leave the building “into the normal hours of sleep,” and an early morning check found the vehicle he had driven the preceding day parked as he had left it.
Police also observed two other transactions conducted by the defendant in a manner similar to the controlled drug sales, and made additional observations regarding the defendant’s actions after returning to the apartment building. On April 1, 2005, police saw the defendant leave the building through a rear door, get into the Audi with another Hispanic male, and drive “so as to ensure he was not being followed”; as a consequence, a “loose surveillance was conducted,” and the defendant was next observed meeting with a male and female. The female left her motor vehicle and entered the Audi; after a brief ride, the female left the Audi, and the defendant and his unidentified companion drove directly back to the apartment building, parking next to the white Toyota. The companion entered the building, and the defendant walked directly to the Toyota, looked around before unlocking the car, and opened the vehicle’s hood. The defendant looked around again and then either took something from the engine compartment of the Toyota or placed something in it before closing the hood. He repositioned the Toyota so that it was blocking the Audi, then entered the rear of the building. Three days later, the detectives observed the defendant leave from the rear of the building and get into the Audi. He was followed and observed meeting a female who got into his car, was taken for a short ride, and was dropped off. The defendant returned directly to the apartment building and unlocked the Toyota, which he entered briefly. He then walked directly to the rear of the building and entered.
Based on this information, a magistrate issued a warrant authorizing the search of the apartment, and any person present, for drugs and materials, products, equipment, books, records, and proceeds related to drug distribution.
Discussion. 1. Motion to suppress, a. Nexus. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights “require a magistrate to
The defendant relies on Commonwealth v. Pina,
The affidavit in Pina established that on a single occasion the defendant “was observed driving from his apartment to a location where he sold cocaine to the informant”; we determined that, without more, this was insufficient to support probable cause to search the defendant’s residence. Id. at 442. We expressed in that case our agreement with the Appeals Court’s reasoning in Commonwealth v. Smith,
As our decisions in Pina and Medina recognize, special protections are extended to a person’s home under both the Federal and State Constitutions. See, e.g., Georgia v. Randolph,
We have not defined the precise contours of what constitutes “particularized information” because each case presents its own facts and must be considered in light of a unique set of circumstances. No bright-line rule can establish whether there is a nexus between suspected drug dealing and a defendant’s home. Police may rely on a variety of investigatory sources in making the necessary showing, including police surveillance and statements from credible informants. See, e.g., Commonwealth v. O’Day,
A single observation of a suspect leaving his home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information, such as statements from credible informants. See, e.g., Commonwealth v. Young,
Here, probable cause to search the apartment was established by Stanton’s affidavit, which sets forth particularized information from which it may be inferred that the defendant was using his apartment as a base of operations for a drug delivery business.
We reject the defendant’s argument that his use of or access to the Toyota during three of the observed transactions provided “affirmative evidence” that drugs were not being stored in his apartment. Cf. Commonwealth v. Dillon,
In his written findings of fact and rulings of law, the motion judge concluded that the basement was within the curtilage of the apartment. In support of this determination, the judge found that the “building owner informed Stanton that the locked cellar area’s access . . . [was] limited to himself and to the residents of [the apartment].” We independently review the judge’s application of law to the facts found, Commonwealth v. Scott,
“The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.” Commonwealth v. McCarthy,
The United States Supreme Court has set out four factors to be considered when deciding whether a particular area is within the curtilage of a given home: “(1) the proximity of the area to
In the present case, there was no evidentiary hearing. The only documents before the judge were Stanton’s affidavit, the warrant, and the warrant return; a police report was introduced by the defendant for the limited purpose of establishing the location of certain contraband when it was found. Stanton’s affidavit averred that only the tenants in the apartment had access to the locked basement. Stanton noted that the building owner retained access to the basement, but there was no information regarding the nature or frequency of that access during the defendant’s tenancy. Based on this information, the motion judge was entitled to conclude that the occupants of the apartment had exclusive use of and access to the locked basement during their tenancy, thus making it part of the curtilage of that apartment. See Commonwealth v. Thomas, supra. See also Commonwealth v. Wallace, 67 Mass. App. Ct. 901, 902 (2006) (attic, although separated from defendant’s apartment, “had all the indicia of being part and parcel” of apartment, including private access and key).
Much of the defendant’s argument to the contrary relies on evidence developed through testimony at trial, which we do not consider in reviewing the judge’s ruling on the pretrial motion. See Commonwealth v. Grandison,
2. Motion for required findings. The defendant argues that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence to establish his constructive possession of the handguns, ammunition, and drugs found in the basement. “Proof of constructive possession requires the Commonwealth to show ‘knowledge coupled with the ability and intention to exercise dominion and control.’ ” Commonwealth v. Boria,
Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore,
When a detective returned to the apartment from the basement holding the white bag in which the handguns, ammunition, and heroin were found, the defendant spontaneously stated — without having been told that the bag contained incriminating evidence — that he should not be charged with its contents because the bag was not found in his apartment. The jury were
3. Certificates of drug and ballistics analysis. The defendant contends that he is entitled to a new trial on all the charges except the unlawful possession of ammunition because the Commonwealth violated his confrontation right under the Sixth Amendment by introducing in evidence one certificate of ballistics analysis and two certificates of drug analysis without accompanying testimony from the analysts. See Melendez-Diaz v. Massachusetts,
Conclusion. Based on the foregoing, the defendant’s conviction of unlawful possession of ammunition is affirmed. The judgments on the remaining indictments are reversed, the verdicts are set aside, and the matter is remanded to the Superior Court for a new trial on those indictments.
So ordered.
Notes
After the jury returned their verdicts, the defendant pleaded not guilty to indictments charging a second or subsequent firearm offense, G. L. c. 269, § 10 (a). The Commonwealth placed these charges on file with the defendant’s consent.
The defendant argued before the Appeals Court that he was entitled to a new trial on the ammunition charge; he does not press that argument before us.
Nothing in the affidavit suggests that the bills were marked.
The affidavit does not indicate whether surveillance of the apartment building at 449 North Main Street (apartment building) was in place throughout the two-week period or only sporadically.
Stanton confirmed through utility records that Lori Collins, the defendant’s girl friend, was listed as the resident and account holder for the apartment. Registry of motor vehicles records showed also that the Audi was registered to Collins. Stanton learned from Brockton police records that Collins had been arrested previously on charges related to heroin distribution.
The warrant described the location to be searched as “449 North Main St. Apt. 2 Brockton MA. 02301, a green in color multi unit building of brick and wood construction containing individual apartments. The front of said building being marked with the number 449, at street level.” The warrant also described the defendant as the occupant to be searched. Separate warrants issued for the Audi and Toyota; no contraband was recovered from either automobile.
In Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 108 (2007), the Appeals Court also suggested that the magistrate could have inferred that the defendant brought illicit proceeds into his house after returning from the controlled sale. That there may be proceeds from drug transactions in a home does not alone support probable cause to search the home for drugs. Although probable cause sufficient to support a search of a suspected dealer’s home for additional drugs will generally also support a search for records and cash proceeds, we are not persuaded that information regarding records and proceeds alone will provide a sufficient nexus to search a residence for drugs.
Nonetheless, “if the circumstances of the case are sufficiently developed in the affidavit and the description of other incriminating items is done with some circumspection, courts are likely to find probable cause also exists as to these other items.” 2 W.R. LaFave, Search and Seizure § 3.7(d), at 434 (4th ed. 2004). “[Wjhere the evidence shows that the person at the place to be searched is a dealer, it is fair to assume that he will have on hand the equipment needed for repackaging in smaller amounts at the time he receives his supply, and thus the warrant may also permit a search for that equipment. On like information, it has also been held that there is probable cause as to drug records [and] cash proceeds . . . .” Id. at 434-435.
As to the informant’s initial contact with Stanton, the affidavit does not state whether the informant obtained information from others or personally purchased drugs from the dealer. The affidavit explicitly asserts personal knowledge only as to the statement made by the Hispanic male to the informant that he would buy guns from him. When the application for a search warrant relies on information received from an unnamed informant, such information must meet the two-pronged standard set forth in Aguilar v. Texas,
“However, an informant’s detailed tip, plus independent police corroboration of those details . . . can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli standard, and thus satisfy the art. 14 [of the Massachusetts Declaration of Rights] probable cause requirement.” Id. Here, the informant’s descriptions of the defendant’s physical appearance, his automobiles, and his method of operation were independently corroborated by police through surveillance and heroin purchases. See Commonwealth v. Parapar,
Although Stanton’s affidavit described that the defendant had access to the locked basement, the warrant application itself did not identify the basement as a location he sought to search. The application identified as places to be searched only the defendant’s apartment and the two automobiles; warrants ultimately issued listing only those locations. We note that this issue “could have been avoided altogether had the police included the [basement] in the application for the search warrant.” Commonwealth v. McCarthy,