440 Mass. 787 | Mass. | 2004
The defendant, Efrain Matias, was indicted for possession with intent to distribute marijuana. The indictment stemmed from evidence seized during three separate searches, all conducted pursuant to warrants. The three searches were of Matías’s apartment, a second apartment in his name, and a storage unit. Matias filed a motion to suppress all evidence seized pursuant to the three search warrants and the motion was allowed by a Superior Court judge. A single justice of this court granted the Commonwealth’s request for an interlocutory appeal, see G. L. c. 278, § 28E; Mass. R. Crim. R 15 (a) (2), as appearing in 422 Mass. 1501 (1996), and transferred the matter to the Appeals Court. In an order and unpublished memorandum the Appeals Court vacated the order of the motion judge. Commonwealth v. Matias, 56 Mass. App. Ct. 1112 (2002). However, on rehearing, the Appeals Court affirmed the allowance of the motion to suppress. Commonwealth v. Matias, 58 Mass. App. Ct. 231, 232 (2003).
The validity of the affidavits for the second and third searches turns on the sufficiency of the affidavit for the first search. In regard to the first affidavit, we must resolve two related issues: first, whether the information relied on in the affidavit was “stale” and thus did not establish probable cause to support the issuance of a search warrant; and second, whether the information in that affidavit demonstrated a sufficient nexus between the criminal activity alleged and the place to be searched. We summarize the facts relevant to this appeal from the various affidavits in support of the search warrant applications.
1. Affidavit for 6 Rockdale Street, third floor. The affiant, Officer Darnell McGee, had been an officer with the Worcester police department for sixteen years, was a member of the vice squad for ten years, and had participated in several hundred drug investigations. On or about March 27, 2000, Officer McGee spoke with a confidential informant (CI-1) whom he had known for a short period of time and whom he knew to be
A subpoena of the records for a cellular telephone number (supplied by CI-1) yielded the information that it was registered to Efrain Matías, twenty-nine years old, of 6 Rockdale Street, apartment no. 3, in Worcester. Officer McGee also learned, from the registry of motor vehicles, that Matías had registered both a blue Toyota sedan and a gray Toyota Rav-4 sport utility vehicle at 6 Rockdale Street, apartment no. 3,
On October 10, 2000,
2. Affidavit for 2 Rockdale Street, apartment no. 2. This affidavit repeated all the information contained in the original affidavit for 6 Rockdale Street, third floor. The affidavit also stated that during the search of 6 Rockdale Street, third floor, the police found and seized marijuana consistent with distribution, “large amounts” of cash (believed to be “tens of thousands of dollars”) and “cribnotes” indicating money transfers consistent with drug distribution. The police also found a rent receipt for 2 Rockdale Street, apartment no. 2, and a rental agreement for a storage unit at a storage facility in Shrewsbury, both in the name of Efrain Matías. The rental agreement stated that Mafias had rented the unit since March 16, 1999. One of the items recovered in the earlier trash pull was a receipt from the same storage facility in Shrewsbury dated September 28, 2000.
During the search, a representative of the landlord for both 2 Rockdale Street and 6 Rockdale Street told the police of heavy foot and vehicle traffic at both these apartments, and that Mafias rented both of them and was seen going “back and forth” between them. In addition, the police observed that the mailbox for 2 Rockdale Street, apartment no. 2, bore the name “E. Matías” (and another name). In Officer McGee’s experience, it is common for large scale drug dealers to have “stash apartments,” where “drugs or moneys are kept secreted” to avoid detection by police and theft by rival drug dealers.
3. Affidavit for the storage unit. The third affidavit repeated all the information contained in the original affidavit for 6 Rock-
The judge’s primary reason for allowing the motion to suppress was the staleness of the information in the original affidavit. Because CI-l’s information was at least six months old when the warrants were issued, the judge concluded that it was stale and could not support a determination of probable cause. The judge also noted that the search of the trash, even if sufficiently linked to “the locus,” did not remedy the staleness problem. Thus, the judge wrote, the first warrant was issued without probable cause and the evidence seized at 6 Rockdale Street, third floor, was to be suppressed. Because the second search warrant, for 2 Rockdale Street, apartment no. 2, depended on information derived from this first search (the rent receipt), as well as the information from an unidentified representative of the landlord who was not shown to meet the Aguilar-Spinelli standards, the results of the second search were also suppressed. The judge further concluded that, although the canine sniff alone would have provided probable cause for a warrant to search the storage unit, the police never would have focused on the unit but for the paperwork found at 6 Rockdale Street, apartment no. 3. Accordingly, the results of the third search
To establish probable cause, “[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Cruz, 430 Mass. 838, 840 (2000), quoting Commonwealth v. Cinelli, 389 Mass. 197, 213, cert, denied, 464 U.S. 860 (1983).
The Commonwealth argues that the judge improperly allowed the defendant’s motion to suppress because the affidavit contained adequate information to determine that the illegal activity was current and that it was connected to the apartment to be searched, and thus satisfied constitutional and statutory requirements. We conclude that both the staleness and nexus problems are resolved by the information from CI-1, the officer’s independent investigation, and the trash pull. The information derived from these various sources, when combined, satisfies both the requirement of current evidence of criminal activity and the requirement that there be evidence connecting such criminal activity to the place to be searched. Accordingly, there was probable cause to believe that there would be evidence of marijuana selling in the defendant’s apartment.
The defendant contends, and the motion judge determined, that CI-l’s tip was stale and therefore insufficient to establish probable cause. “Facts supporting probable cause must be ‘closely related to the time of the issue of the warrant [so] as to justify a finding of probable cause at that time.’ ” Commonwealth v. Cruz, supra at 843, quoting Sgro v. United States, 287 U.S. 206, 210 (1932). Because narcotics are “readily consumed or distributed,” in some circumstances “probable cause to search for them rapidly dwindles” with the passage of time. Commonwealth v. Matias, 58 Mass. App. Ct. 231, 236 (2003), quoting Commonwealth v. Rice, 47 Mass. App. Ct. 586, 590 (1999). See Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975). Therefore, a tip from an informant several months before a search cannot establish probable cause when the tip refers to an isolated drug transaction, and no other rehable evidence has
Here, the trash pull conducted on October 10, 2000, the day the affidavit was submitted, revealed evidence “consistent with a subject involved in selling large amounts of marijuana”; the inference is justified, therefore, that the drug dealing activity in March was a “protracted or continuous” activity that was still ongoing in October. See Commonwealth v. Cruz, supra at 843; Commonwealth v. Reddington, supra at 323, quoting United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973) (“Protracted and continuous activity is inherent in a large-scale narcotics operation”).
The defendant also argues that the trash pull on the curb outside 6 Rockdale Street provided no basis for probable cause
Our cases have required that probable cause to believe evidence of criminal activity will be found in a particular place must be demonstrated by a “nexus” between the crime alleged and the place to be searched. Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986). However, in order to find this nexus we look at all the allegations in the affidavit as a whole in a commonsense fashion, not at individual fragments. Commonwealth v. Atchue, 393 Mass. 343, 346-349 (1984). The nexus “need not be based on direct observation.” Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). It may be found in the type of crime, the nature of the items sought, and normal inferences as to where such items might be kept by the suspect. Id. See Commonwealth v. Vynorius, supra at 22-23 (upholding validity of search warrant for marijuana where no informant had actually seen drugs inside premises).
In this case, an informant (whose reliability is not challenged) told Officer McGee of an “Efrain” who was selling marijuana in the area. It is true that the informant did not state where he or she had purchased the drugs from Efrain. However, based on this information, Officer McGee conducted an independent investigation that revealed the defendant’s full name and the
The validity of the warrants for 2 Rockdale Street, apartment no. 2, and for the storage unit, are dependent on the validity of the warrant for 6 Rockdale Street, third floor. As to the search warrant for 2 Rockdale Street, apartment no. 2, the paperwork for that apartment found during the search of 6 Rockdale Street and the name on the mailbox were sufficient to provide probable cause.
The allowance of the motion to suppress is vacated and an order denying the motion is to enter. This case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
One member of the panel dissented and would have vacated the motion to suppress. Commonwealth v. Matias, 58 Mass. App. Ct. 231, 238 (2003) (Brown, J., dissenting).
But for the references to “apartment #3” in the telephone and registry records, the affidavit for a search warrant for 6 Rockdale Street refers to the unit to be searched as the “third floor” of that address. The search warrant was also issued for the “third floor.” The subsequent affidavits refer to that unit as “apt. #3.” As to the significance of the reference to “third floor,” see note 9, infra.
The affidavit also contains information from a second informant. The defendant argues that this informant did not meet the Aguilar-Spinelli requirements. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964); Commonwealth v. Upton, 394 Mass. 363, 374 (1985). We need not resolve whether the second informant meets these requirements because probable cause is established without that informant’s information.
Nothing in the record explains the delay in the investigation between March and October of 2000.
The defendant does not contest the legality of the trash pull. See Commonwealth v. Chappee, 397 Mass. 508, 512-513 (1986).
Although the rental receipt was recovered in the earlier trash pull, it was not referenced in the affidavit for 6 Rockdale Street, third floor.
Again, although the affidavit could be clearer, the inference is that 2 Rock-dale Street, apartment no. 2, is the “stash apartment.”
The Appeals Court noted that there was “no indication . . . how long the trash might have remained outside 6 Rockdale Street before Officer McGee recovered it.” Commonwealth v. Matias, 58 Mass. App. Ct. 231, 236 (2003). While this concern is not irrelevant, it is a reasonable inference that ordinarily trash would not be sitting on a sidewalk for an extended period of time in a large modem city.
The inference from the first affidavit’s use of the phrase “third floor” is that the building is one with a limited number of units in it. While it is conceivable that the marijuana found in the trash outside the building might have come from another apartment or floor (or from elsewhere), this possibility does not render the issuance of the search warrant improper. We are dealing only with probable cause. Commonwealth v. Vynorius, 369 Mass. 17 (1975).
The motion judge determined that the information from the unidentified representative of the O.S. Walker Co., the owner of both 2 Rockdale Street and 6 Rockdale Street, was not “reliable or fact-based.” We conclude that there was probable cause to search 2 Rockdale Street, apartment no. 2, even without this information. However, we note that where the informant’s position and company were identified in the affidavit, the mere fact that the individual was not named did not render him a “ ‘faceless informer’ whose unarticulated self-interest would render his information automatically suspect.” Commonwealth v. Atchue, 393 Mass. 343, 347 (1984).