NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-288
COMMONWEALTH
vs.
DENNY GERMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with possession with intent to
distribute a class B substance, cocaine, in violation of G. L.
c. 94C, § 32A (a). He filed a motion to suppress evidence
seized pursuant to two search warrants that were executed in
this case, one for his residence and one for a motor vehicle,
and for a Franks hearing, see Franks v. Delaware, 438 U.S. 154,
155-156, (1978). The judge allowed the motion to suppress with
respect to the evidence seized during the search of the vehicle,
but denied it with respect to the search of the residence. The
judge also denied the defendant's request for a Franks hearing,
finding an insufficient basis to require one. The defendant
filed a motion to reconsider, which was denied. Subsequently, the defendant pleaded guilty to the charge
against him, and received a suspended sentence, while reserving
his appellate rights with regard to the judge's decisions on the
motion to suppress the evidence seized from the residence, and
the request for a Franks hearing. See Commonwealth v. Gomez,
480 Mass. 240, 252 (2018) (permitting conditional guilty plea
with consent of Commonwealth and court).
The affidavits in support of each of the two warrants were
written by the same affiant, Detective Stephen Emery of the Lynn
police department. Each was based entirely on information from
confidential sources, and each referred to two controlled buys
that occurred on undisclosed dates and times in the month of
October 2020. The affidavit in support of the warrant for the
residence was prepared on October 19, 2020, while the affidavit
in support of the warrant for the vehicle was prepared on
October 21, 2020.
1. Motion to suppress. We turn first to the motion to
suppress the evidence seized from the residence at 1 Chase
Street, Apartment 1R, Lynn. In determining whether the motion
to suppress was properly denied, we are limited in examining the
four corners of the search warrant affidavit. See Commonwealth
v. Canning, 471 Mass. 341, 348 (2015).
2 For a warrant to issue, the affidavit must demonstrate
probable cause that items related to the criminal activity under
investigation will be found in the place to be searched at the
time the search warrant issues. See Commonwealth v. Donahue,
430 Mass. 710, 711-712 (2000). Because of the heightened
constitutional protection provided to residences, when
establishing a nexus between a suspected drug dealer and his
residence, "police must provide 'particularized information
based on police surveillance or otherwise, that would permit a
reasonable inference that the defendant likely kept a supply of
drugs' in the home." Commonwealth v. Escalera, 462 Mass. 636,
643 (2012), quoting Commonwealth v. Pina, 453 Mass. 438, 442
(2009). "[T]here must be specific information in the affidavit
. . . to provide 'a sufficient nexus between the defendant's
drug-selling activity and his residence to establish probable
cause to search the residence.'" Pina, supra at 440-441,
quoting Commonwealth v. O'Day, 440 Mass. 296, 304 (2003). A
single trip by a defendant directly from his residence to the
location where he sold drugs to an informant is insufficient to
provide an adequate nexus between a defendant's criminal
activity and his residence. Pina, supra at 441, 442.
In his affidavit, the affiant states that "[d]uring the
month of October 2020," the affiant "spoke with a confidential
3 source of information," abbreviated in the affidavit as CS,
which abbreviation we will use as well. The affiant states that
he knows "this person's name, date of birth, address and cell
phone number. This person has provided information directly to
this Officer as well as other Officers, and State Troopers."
The affidavit goes on to say,
"During this initial conversation, the CS stated that the CS knew of an unidentified male only known as 'Mike' offering cocaine for sale in and around Lynn. CS provided the following phone number for Mike: [phone number]. CS described Mike a [sic] Hispanic male, approximately 5'9["], medium build, cornrows down to his neck, light-medium skinned. CS also provided intelligence that Mike is dealing out of 1 Chase St, Lynn, MA."
The affidavit then says that "[d]uring the month of October
2020," a controlled buy of cocaine by the CS was undertaken.
The CS made contact with Mike via the phone number given by the
CS, made arrangements to purchase an undisclosed amount of
cocaine from Mike, and was directed to a location where other
officers were able to set up surveillance. Surveillance was
also set up on 1 Chase Street. Sergeant Avery observed a
Hispanic man matching the description of Mike exit the rear door
of Apartment 1R of 1 Chase Street and exit the rear of the
building. The affidavit says that a surveilling officer was
able to keep sight of Mike as he went from 1 Chase Street
directly to the CS's location, making no stops or meeting
anybody else along the way. The CS met with Mike and handed him
4 money given to him by the police, and in return received "the
cocaine." "Surveillance was kept on Mike as he made his way
directly back to 1 Chase St[.] where he was observed to go back
inside by Sgt[.] Avery and Trooper Soldani."
The affidavit also recounts a second controlled buy
"[d]uring the month of October 2020." This time, however,
"Sgt[.] Clemens of [Massachusetts State police] observed a
Hispanic male matching the description for Mike exit the rear
door of apartment 1R of 1 Chase St[.] and exit the rear of the
building." Again, a surveilling officer was able to keep sight
of Mike as he made his way from 1 Chase Street "directly to the
CS's location while making no stops or meeting with anybody else
along the way." Again, the CS met with Mike, handed him money
provided by the police, and in return received cocaine. The CS
and Mike then went their separate ways. Surveillance was kept
on Mike as he made his way directly back to 1 Chase Street,
where he was observed going back inside by Detective Peter
Panacopoulos.
As described above, a single trip directly from one's
residence to a place where one sells drugs has been held
insufficient to support a conclusion that drugs will be found in
the house. Pina, 453 Mass. at 441, 442. In this case, however,
the affidavit describes two such controlled buys in which the
5 defendant traveled directly from the house to the location of
the sale. We will assume, without deciding, that if the
magistrate credited the affidavit, this provided probable cause
to search the defendant's residence.
There is, however, a staleness problem with the information
in the affidavit. This warrant was sought on October 19. The
affiant does not say on what day these controlled buys took
place. Rather, the affiant asserts only that these buys took
place "during the month of October 2020." There is, therefore,
ambiguity about the dates of the buys. "The ambiguity . . .
makes it proper to assume that the buy occurred on the most
remote date described by that language." Commonwealth v. Rice,
47 Mass. App. Ct. 586, 590 (1999). We must therefore assume
that the first controlled buy took place on October 1, and,
although the second buy could have taken place the same day, we
will assume it did not -- although nothing in the affidavit
actually requires this -- and therefore, that it took place, at
the earliest, on October 2. This means that we must treat the
controlled buys as having taken place on two consecutive days,
and the affidavit application as having been sought seventeen
days after the second controlled buy.
"Probable cause to search a particular location for
contraband requires a timely, as well as a substantial, nexus to
6 the illegal activity." Pina, 453 Mass. at 442. In Pina,
although the court did not rest on this alone, the court said,
"The lapse of time between th[e] observation and the application
for the search warrant (three days) raises further concerns."
Id.
There is no bright line for when information like this
about a residence becomes stale. It depends on the
circumstances of each case. See Commonwealth v. Atchue, 393
Mass. 343, 349 (1984). We find some guidance, however, in
Commonwealth v. Malone, 24 Mass. App. Ct. 70 (1987). In that
case, a search warrant was sought on April 19, 1985, for an
apartment of the defendant from which she had been arrested
selling drugs over a year before. Id. at 71. According to the
affidavit, "'On or about the 25th to the 29th of March 1985,' an
informant attempted to buy cocaine at the defendant's
apartment." Id. The informant was allowed in by a woman who
said she was the defendant's sister. Id. The informant asked
about buying cocaine and was told it would be there in a while,
and while in the apartment, the informant observed a white
powder, which the woman described as only a cutting agent. Id.
The court concluded that it was a reasonable inference from the
sister's statement that drugs would be found in the apartment
within a short time after the informant's visit. Malone, 24
7 Mass. App. Ct. at 73. However, the lapse of at least twenty-one
days between that observation and the date on which the warrant
was sought meant the affidavit was insufficient to support a
finding of probable cause on the date the affidavit was
submitted. Id. at 73-74. We think that the two and one-half
weeks that passed between the controlled buy and the application
for the warrant in this case is not meaningfully distinguishable
from the three weeks at issue in Malone. Consequently, we think
the information in the affidavit was stale when it was
submitted, and therefore not sufficient to support the issuance
of the warrant.
The Commonwealth points out that "[i]f an affidavit recites
activity indicating protracted or continuous conduct, time is of
less significance" (citation omitted). Commonwealth v.
Vynorius, 369 Mass. 17, 25 (1975). There is at least one case
in which a passage of two weeks was not sufficient to render the
evidence stale because of continuous conduct. See Commonwealth
v. Cruz, 430 Mass. 838, 843 (2000). But in that case, "the
affidavit described six controlled purchases of increasing
amounts of cocaine over a period of four weeks, and also
asserted that plans were being made to buy more cocaine from the
defendants in the future." Id. Given that, "[t]he magistrate
reasonably could have inferred that the defendants were engaged
8 in ongoing, criminal activity to distribute cocaine." Id. In
those circumstances, the court said that the affiant's
information did not "grow stale" in the two weeks since the
affidavit. Id.
Here, we do not have similar evidence of continuing
activity. To be sure, according to the affidavit, two
controlled buys took place from the defendant within the first
two days of October 2020. But that is all the information we
have. The affiant had never been inside the apartment, did not
therefore describe anything about it or the presence of drugs
within it, nor is there any other evidence from outside of these
two days of an ongoing drug sale operation.
Consequently, because the nexus to the defendant's
residence was not timely, we conclude that the search warrant
should not have issued, and the motion to suppress should have
been allowed.
2. Motion for a Franks hearing. For the sake of
completeness, we address the defendant's second argument, that a
Franks hearing should have been held. If we are incorrect about
the motion to suppress, we conclude that the defendant was
nonetheless entitled to a Franks hearing.
Under Franks v. Delaware, 438 U.S. 154, 155-156, (1978),
"where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally,
9 or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment [to the United States Constitution] requires that a hearing be held at the defendant's request."
"Intentionally or recklessly omitted material may also form the
basis for mounting [such] a challenge." Commonwealth v. Long,
454 Mass. 542, 552 (2009). To invoke Franks, the defendant must
show that the false statement was necessary to the finding of
probable cause, or that omission negated a finding of probable
cause.
The defendant's primary argument is based on alleged
inconsistencies between the search warrant affidavit supplied in
obtaining the search warrant for the residence, and the
affidavit submitted two days later in support of the search
warrant for the vehicle.
The affidavit for the vehicle warrant is virtually
identical, in its initial portions, to the affidavit in the
residence case. It states, "During the month of October 2020,
this Officer spoke with" a confidential source, this time
referred to as a "confidential reliable source," for which it
uses the initials "CRS," as we will, but says nothing about
reliability, instead averring that "reliability can be furnished
upon request." Identically to the residence affidavit, it then
reads, "I know this person's name, date of birth, address and
10 cell phone number. This person has provided information
directly to this Officer as well as other Officers, and State
Troopers." It then says,
"During this initial conversation, the CRS stated that the CRS knew of an unidentified male only known as 'Mike' offering cocaine for sale in and around Lynn. CRS provided the following phone number for Mike: [same phone number as that in the residence affidavit]. CRS described Mike a [sic] Hispanic male, approximately 5'9["], light-medium skinned. CRS also provided intelligence that Mike is dealing out of 1 Chase St[.], Lynn, MA."
The only difference between this and the description of CS in
the residence affidavit is that CS was said to have included in
his description of "Mike" the additional information that he was
"medium build," with "cornrows down to his neck."
The vehicle affidavit describes the setup of a controlled
buy "[d]uring the month of October 2020" almost identically to
the way it was described in the residence affidavit, but states
that "[s]urveillance observed MA REG 2XKM81 being operated by a
single occupant who appeared to match the description of Mike.
The CRS went to the MV [motor vehicle], met with Mike, handed
him the money, and in return received the cocaine. The CRS and
Mike then went their separate ways."
The vehicle affidavit then introduces someone it implies to
be a second confidential source. It says,
"During the month of October 2020, this Officer spoke with a confidential source of information who will be referred to as CS. I know this person's name, date of birth,
11 address and cell phone number. This person has provided information directly to this Officer as well as other Officers, and State Troopers. During this initial conversation, the CS stated that the CS knew of an unidentified male only known as 'Mike' offering cocaine for sale in and around Lynn. CS provided the following phone number for Mike: [same phone number]. CS described Mike a [sic] Hispanic male, approximately 5'9["], medium build, cornrows down to his neck, light-medium skinned. CS also provided intelligence that Mike is dealing out of 1 Chase St[.], Lynn, MA."
This paragraph appears to be cut and pasted from the
residence affidavit. It even includes the same typographical
error. This supports an inference that this "CS" is the same CS
named in the residence affidavit.
The affidavits describe identically a controlled buy by CS,
the second one described in the residence affidavit. But the
vehicle affidavit has a different description than the residence
affidavit of what happened after it. The residence affidavit
says, "Surveillance was kept on Mike as he made his way directly
back to 1 Chase St[.] where he was observed to go back inside by
Det[.] Peter Panacopoulos." The vehicle affidavit, in contrast,
says,
"Surveillance was kept on Mike as he stopped at MA Reg 2XKM81 which was parked and unoccupied. Mike held something out and pointed it at the MV as if it was being unlocked. He then entered the passenger side of the MV and sat down inside. He appeared to manipulate some things in the front seat and then after approximately 1 minute he exited the MV [and] made his way directly back to 1 Chase St[.] where he was observed to go back inside by Det[.] Peter Panacopoulos."
12 Given that the last clause is identical to what was included in
the residence affidavit, an inference is supported that this
controlled buy is the second controlled buy mentioned in the
residence affidavit.
The differences between these two affidavits raise a
serious concern. It may be that there were three confidential
sources and four controlled buys. And the identical passages
may reflect a desire to avoid details about the confidential
sources, not that the descriptions are of the same confidential
source. But it is reasonable to assume that an officer seeking
a warrant for a search of a residence or a vehicle would include
in his affidavit all controlled buys made from the suspect.
Certainly, in seeking a warrant for a residence, one would
expect all controlled buys in which the defendant went directly
from the residence to the drug deal to be included.
To begin with, then, the affidavits support an inference
that the second controlled buy mentioned in each affidavit is
the same one, and that the defendant did not proceed directly to
the residence after the drug deal but stopped instead at the
vehicle. If so, the description in the residence affidavit is
inaccurate. Further, the omission from the residence affidavit
of returning to the car, if it describes what actually happened,
and of the vehicle affidavit's description of the first
13 controlled buy, in which the defendant arrived and departed in
his vehicle, may paint a materially misleading picture of the
role of the residence in the defendant's drug-dealing activity,
indicating that, during the relevant time period, the defendant
may not have been selling drugs from his residence.
Indeed, it may be that the two affidavits describe the same
two controlled buys and that there was only a single
confidential source. If that were true, then the description of
the first controlled buy in each affidavit is utterly different
from the description in the other. The differences in the
affidavits certainly raise a sufficient issue to have required
an evidentiary hearing under Franks.
There is also additional evidence showing that a Franks
hearing was necessary. In an affidavit filed with the motion,
and again filed with the motion for reconsideration, counsel
asserted that he had visited and examined the premises at 1
Chase Street, Lynn, both interior and exterior, and had had the
opportunity to examine Apartment 1R, both interior and immediate
exterior. He asserted that it is physically impossible to see
through the rear door of 1 Chase Street into the interior of the
rear hallway to determine that someone has left Apartment 1R,
unless one has their face pressed up to the beveled glass.
There is a short distance between the door to Apartment 1R and
14 this back door with beveled glass, and he asserted that if one
had one's face pressed against the glass, anyone exiting
Apartment 1R would see them, and would get to the building's
rear door before the person looking in had any time to leave or
hide. This, too, raises a question worthy of an evidentiary
hearing under Franks.1
Because we think the failure to allow the motion for a
Franks hearing was in error, were we to conclude that the
evidence seized during the search of the residence need not be
suppressed, we would vacate the order denying the Franks
hearing, and remand for proceedings consistent with this
memorandum and order.
Conclusion. To the extent that the order on the
defendant's motion denied the motion to suppress evidence seized
from the residence, it is reversed, and the case is remanded to
1 In support of the motion for reconsideration, the defendant submitted photographs of the rear of the building that appear to show the impossibility of seeing the exit of Apartment 1R from outside the rear of the building, except by being immediately close to that rear door. He includes those photographs in his appendix, but, because the judge was not obligated to consider that new evidence on a motion for reconsideration, they play no role in our assessment.
15 the Superior Court for further proceedings not inconsistent with
this memorandum and order. The remainder of the order is
affirmed.
So ordered.
By the Court (Rubin, Blake & Shin, JJ.2),
Clerk
Entered: October 4, 2024.
2 The panelists are listed in order of seniority.