Commonwealth v. Eller

849 N.E.2d 859, 66 Mass. App. Ct. 564, 2006 Mass. App. LEXIS 677
CourtMassachusetts Appeals Court
DecidedJune 22, 2006
DocketNo. 05-P-632
StatusPublished
Cited by12 cases

This text of 849 N.E.2d 859 (Commonwealth v. Eller) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Eller, 849 N.E.2d 859, 66 Mass. App. Ct. 564, 2006 Mass. App. LEXIS 677 (Mass. Ct. App. 2006).

Opinion

Brown, J.

In a jury-waived trial on a nine-count indictment, the defendant was convicted of eight counts, including three related to possession, distribution, and trafficking of cocaine; one count of possession of heroin with intent to distribute; and various weapons charges, including possession of a firearm while in the commission of a felony. He was acquitted of one count of possession of cocaine with intent to distribute, second [565]*565offense. On appeal the defendant claims that the denial of his pretrial motion to suppress evidence seized from his motel room was error. He argues that the police should not have been permitted to enter without knocking and announcing their presence and that the search warrant affidavit did not provide probable cause to believe that the drugs and related items were likely to be located in his motel room. The defendant also argues that the evidence was insufficient to support his convictions of possession of heroin with the intent to distribute and possession of a firearm in the commission of a felony.

1. Probable cause. We turn first to the defendant’s claim that the search warrant affidavit lacked probable cause to tie his illegal drug sales to his motel room. “[G]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four comers of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). The information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there. See Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983); Commonwealth v. O’Day, supra at 298.

We set forth the relevant facts in the affidavit of Sergeant David B. Foley, dated January 22, 2002, which accompanied the search warrant application.1

a. Affidavit. Sergeant Foley, a State trooper with considerable experience and training as a narcotics investigator, is a veteran member of the narcotic unit of the Berkshire County detective unit, as well as a member of the Berkshire County drag task force. Over the past ten years, Foley has participated in an ongoing investigation of the defendant’s suspected drag activities, commencing with an undercover purchase of cocaine from [566]*566the defendant on January 17, 1992, which resulted in the defendant’s arrest and conviction. The defendant is described as a thirty year old white male, who resided with his girlfriend, Heather Alexander, at 49 Arnold Place, Apt. B, in North Adams until about January 13, 2002, when he left and rented a motel room for two weeks at the Chimney Mirror Motel, located at 295 Main Street, Williamstown. The affidavit sets forth the defendant’s seventeen prior convictions from 1986 to 2000; among them are three drug-related offenses and seven convictions of assault and battery, including a 1994 conviction of assault and battery on a police officer.

On May 2, 2001, the affiant and another police officer confronted one James Cieslik, informing him that members of the Berkshire County drug task force had made a controlled purchase of cocaine from him while he was working at the Pitchers Mound bar. In return for consideration in relation to that offense, Cieslik agreed to cooperate with the investigation of the defendant.

Cieslik told police that he began buying cocaine and marijuana from the defendant in 1999. According to Cieslik, when he wanted drugs, he would page the defendant, who would then show up at Cieslik’s home or work with the order. At first, the defendant did not let Cieslik know where he lived. Eventually, in approximately May, 2000, Cieslik went to a small apartment at 926 Mohawk Trail (which, Sergeant Foley later ascertained, was, according to police and Registry of Motor Vehicles records, the defendant’s former address), where he bought marijuana and cocaine from the defendant. While there, the defendant displayed two guns — a 9 millimeter handgun and a small machine gun with holes in the barrel. Cieslik explained to police that by May, 2001, the defendant lived with his girlfriend in another apartment, on Arnold Street. Cieslik had been inside the Arnold Street apartment once when he bought cocaine and at that time he noticed large stacks of cash. On a few occasions, Cieslik had met the defendant outside of the Arnold Street apartment to “make drug deals.”

At the end of April, 2001, and until the beginning of July, 2001, police began to work with a confidential informant, identified in the affidavit as CRI #1. CRI #1 had a long and detailed [567]*567history of supplying police with information that led to the issuance of search warrants and was used to obtain convictions. CRI #1 told police that he had purchased cocaine from the defendant. CRI #1 also reported that the defendant said he was in the process of renovating a store in North Adams to turn it into a music recording studio.

Between May 5, 2001, and July 7, 2001, CRI #1 reported to police that he had purchased cocaine from the defendant on ten separate occasions. On eight of those occasions, the sale occurred in North Adams: in three instances the defendant’s motor vehicle was the point of sale, in three instances the sale occurred at the recording studio, once the sale was inside a local bar, and one sale was at an undisclosed location in North Adams. On July 3, 2001, CRI #1 made a controlled buy of crack cocaine from the defendant at the comer of Arnold Place and Church Street in North Adams.

From the summer of 2001 to the date of the search warrant application, January 22, 2002, the police received additional information from a second confidential informant, CRI #2. CRI #2, like CRI #1, had a long history of reliability, which included making controlled buys and providing information that led to the issuance of at least two search warrants and the arrest and conviction of at least three individuals. CRI #2 reported that he had purchased cocaine from the defendant. CRI #2 also stated that he knew that the defendant used rental cars to deliver drugs to customers on the streets of North Adams, at their home or work, or at a variety of local bars. CRI #2 reported that weekly, on Thursday or Friday nights, the defendant sold cocaine in one of the area bars.

The last informant named in the affidavit is one Peter Cardinal. In January, 2002, after police informed Cardinal that they had made two controlled buys of illegal drags from him, he agreed to cooperate in the investigation of the defendant. Cardinal told police that he had been purchasing cocaine from the defendant over a period of at least seven years. The location for the purchases included Cardinal’s home or work, the parking lots of various local stores, the defendant’s recording studio, and on four or five occasions, inside the defendant’s apartment on Arnold Place. Cardinal explained that the defendant had [568]*568been living at the Arnold Place address since approximately 2000, first in a downstairs apartment, and then, since about 2001, in an upstairs apartment. During one of Cardinal’s visits to the downstairs apartment, the defendant displayed a gun that he kept in a kitchen closet.

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Cite This Page — Counsel Stack

Bluebook (online)
849 N.E.2d 859, 66 Mass. App. Ct. 564, 2006 Mass. App. LEXIS 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-eller-massappct-2006.