Commonwealth v. Gerard Divenuti.

• Court: Massachusetts Appeals Court
• Decided: February 25, 2025
• Docket: 24-P-0558
• Status: Unpublished

Opinion

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

24-P-558

COMMONWEALTH

vs.

GERARD DIVENUTI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A grand jury returned indictments charging the defendant,

Gerard Divenuti, with trafficking in methamphetamine of thirty-

six grams or more, possession with intent to distribute a

controlled substance, and offenses arising from the unlawful

possession of a firearm and ammunition. He moved to suppress

evidence recovered pursuant to a search warrant, arguing that

the search warrant affidavit failed to establish probable cause

that the defendant was distributing drugs and failed to

establish a connection between the defendant and the apartment

that was searched. A Superior Court judge denied the motion.

The defendant filed a motion to reconsider, which the same judge

also denied. A jury found the defendant guilty of the charged offenses. On appeal, the defendant challenges the adequacy of

the search warrant affidavit. We affirm.

Background. We summarize the information contained in the

affidavit submitted in support of the search warrant. The

affiant, Joseph DiLiegro, is a State police trooper with

extensive experience in controlled substance investigations. On

July 8, 2021, at approximately 6:15 A.M., Trooper DiLiegro, who

was assigned to the violent fugitive apprehension section, and

other law enforcement officers went to an apartment on Broadway

Street in Everett looking for the defendant, who was wanted on

three separate arrest warrants, including one for a narcotics

offense. Trooper DiLiegro and the other officers knew the

defendant from an arrest the prior year.

When the trooper and the other officers arrived at the

address, they rang the doorbell and knocked on the door. The

defendant opened the door after a few minutes. When the

defendant saw the police, he attempted to close the door and

flee. The police entered the apartment and arrested the

defendant. In plain view, Trooper DiLiegro observed a small

digital scale on the kitchen table. Trooper DiLiegro asked the

defendant if anyone else was home. The defendant stated that

the homeowner was not home but that the homeowner's thirteen-

year-old son was in a rear bedroom.

2 The police searched the defendant and found a "tied off

clear plastic bag containing a white rock substance" and several

other smaller plastic bags, which also contained a white rock

substance in "different sized denominations" in his pocket.

Trooper DiLiegro knew that street-level narcotics distributors

"package their drugs in this fashion" and that the appearance of

the white rock substance was "consistent with that of" crack

cocaine.

Based on the information described above, Trooper DiLiegro

obtained a search warrant, which was executed later that same

day. During the search of the apartment, the police found

items, including a black pistol, ammunition, and Fentanyl pills.

Discussion. The Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights "require a magistrate to determine that probable cause

exists before issuing a search warrant." Commonwealth v.

Byfield, 413 Mass. 426, 428 (1992). "Probable cause requires

evidence that establishes a 'substantial basis,' to believe

'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'" (citations omitted). Commonwealth v. Banville,

457 Mass. 530, 538 (2010). Our review of the sufficiency of the

search warrant application "begins and ends with the 'four

3 corners of the affidavit'" (citation omitted). Commonwealth v.

O'Day, 440 Mass. 296, 297 (2003). "Because this is a question

of law, 'we review the motion judge's probable cause

determination de novo.'" Commonwealth v. Tapia, 463 Mass. 721,

725 (2012), quoting Commonwealth v. Long, 454 Mass. 542, 555

(2009).

We conclude that the information set forth in the four

corners of the affidavit established probable cause to believe

that additional drugs would be found in the apartment. The

defendant focuses on the observation of the digital scale and

argues that the presence of the scale in the kitchen fails to

establish probable cause. This argument ignores the fact that

police found in the defendant's pocket a large clear plastic bag

holding several smaller plastic bags containing different

"denominations" of a substance believed to be drugs. The drugs

were packaged in a manner consistent with drug distribution and

established probable cause to believe that the defendant was

involved in drug distribution. Cf. Commonwealth v. Pratt, 407

Mass. 647, 652-53 (1990).

The defendant also contends that the affidavit failed to

establish that he lived in the apartment, but the affidavit was

not required to do so. Rather, to establish probable cause to

search, "[a]n affidavit must contain enough information for an

issuing magistrate to determine that the items sought are

4 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. Cinelli, 389 Mass 197, 213 (1983).

Here, the trooper found the defendant in the apartment at

6:15 A.M. with evidence of drug distribution on his person, from

which the magistrate could reasonably infer that the defendant

had spent the night at the apartment or at least was comfortable

coming to the apartment at an hour not ordinarily associated

with social visits. The fact that the defendant was alone in

the apartment and entrusted with the homeowner's thirteen-year-

old son demonstrated that the defendant had access to the

apartment. In plain view, there was a digital scale of a type

commonly used by drug dealers to weigh their product for

packaging and sale of drugs. The fact that the scale may also

have had an innocent use does not mean that the magistrate had

to view it that way.

Taken together, these facts were adequate to establish

probable cause that the defendant was engaged in drug

distribution and to provide a nexus between the defendant's drug

distribution and the apartment. "[T]he affidavit should be read

as a whole, not parsed, severed, and subjected to hypercritical

analysis." Commonwealth v. Blake, 413 Mass. 823, 827 (1992).

Rather, we interpret search warrant affidavits "in a realistic

5 and commonsense manner." Commonwealth v. Anthony, 451 Mass. 59,

69 (2008). We give considerable deference to the magistrate's

determination of probable cause, see Commonwealth v. Upton, 394

Mass. 363, 377 (1985), and even the "resolution of doubtful or

marginal cases . . . should be largely determined by the

preference to be accorded to warrants," (citations omitted),

Anthony, supra, quoting Commonwealth v. Germain, 396 Mass. 413,

418 (1985).

Judgments affirmed.

By the Court (Blake, C.J., Vuono, Meade, Hershfang & Tan, JJ.1),

Clerk

Entered: February 25, 2025.

1 The panelists are listed in order of seniority.