Commonwealth v. O'Day

780 N.E.2d 473, 56 Mass. App. Ct. 833, 2002 Mass. App. LEXIS 1640
CourtMassachusetts Appeals Court
DecidedDecember 24, 2002
DocketNo. 01-P-46
StatusPublished
Cited by9 cases

This text of 780 N.E.2d 473 (Commonwealth v. O'Day) 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. O'Day, 780 N.E.2d 473, 56 Mass. App. Ct. 833, 2002 Mass. App. LEXIS 1640 (Mass. Ct. App. 2002).

Opinion

Beck, J.

The defendant appeals from the denial of his motion to suppress evidence seized in a search of his home. He also claims error in the denial of his motion to dismiss an indictment for possession of an infernal machine (a grenade simulator) found in his bedroom during the search. Although the warrant authorized a search for “controlled substances” and related equipment and records, the only charge on which the defendant was found guilty was possession of the grenade simulator. He [834]*834was acquitted of possession of cocaine and of a firearm. The issue on appeal is whether there was probable cause to support the warrant.

1. Factual background. There is no dispute that there was probable cause to believe that the defendant was dealing drugs at DJ’s pub in Brockton, where he was the doorman. As set out in the affidavit of an experienced State trooper, the facts are as follows. An informant told the police he bought cocaine, from the defendant and another man at DJ’s pub and that the men kept the cocaine “on their person.” He also reported that the other man lived in an apartment over the pub. According to the informant, the defendant supplied “other Hispanic and young black males with cocaine for distribution.”

In response to the informant’s information, the State police set up surveillance inside and outside the pub. On several occasions they observed men in the pub who were not drinking, but were pacing back and forth, looking out the front door. As soon as the defendant arrived, the men approached him, had what appeared to be brief conversations with him, walked into the men’s room with him, and then left the pub as soon as they emerged from the men’s room. On other occasions the defendant appeared to conduct transactions literally under the table. Three controlled buys, two in the men’s room and one under the table, were sufficient to corroborate the informant’s statements that the defendant was selling cocaine at the pub. See Commonwealth v. Villella, 39 Mass. App. Ct. 426, 427 (1995).

On two occasions the police engaged in surveillance of the defendant’s house at 10 Hunt Street in Brockton. (The informant had not provided any information about that location.) When the police arrived for the first surveillance at 7:00 p.m. on October 9, 1997, they saw cars parked in the driveway and on the street in front of the defendant’s house. At 7:30 p.m., a white Ford Bronco sport utility vehicle registered to Catherine Li-vargo of an address in East Bridgewater pulled up in front of the house. Livargo was known to be the defendant’s girlfriend. The affiant stated that he saw “other vehicles” also pull up in front of 10 Hunt Street. “After a brief stay these vehicles and their occupants departed [the] location.” The defendant and his girlfriend emerged from the house about 8:00 p.m. and embraced. [835]*835The girlfriend left in the white Bronco. The defendant left at 8:13 p.m. in a blue Ford pickup truck, also registered to his girlfriend, and drove directly to the pub. (The electrical service to the house was also in the girlfriend’s name.) At the pub the defendant engaged in what appeared to be two under-the-table transactions, one with a Hispanic man the surveillance officers had seen two weeks before, and the other in the second of the controlled buys. After the transaction involving him, the Hispanic man went up a flight of stairs leading to the apartments above the bar.

Three weeks later, the police conducted a second surveillance at 10 Hunt Street, again beginning at 7:00 p.m. The officers “made note of several vehicles that arrived and departed [the defendant’s] residence after a brief stay.” Again the girlfriend arrived after 7:00 p.m. and left before 8:00 p.m. The defendant left at 8:04 p.m., again in the blue pickup, and again drove directly to the pub. There was another controlled buy, this time in the men’s room. On this evening, the affiant also saw the defendant leave the pub several times for brief conversations on a wireless telephone. At one point the defendant appeared to retrieve something from the blue pickup truck, which was parked across the street.

On the basis of the evidence set out above, a magistrate issued a search warrant for 10 Hunt Street. The search uncovered a grenade simulator in the bureau in the defendant’s bedroom, and 1.64 grams of cocaine and a revolver in a black padlocked box hidden in the ceiling area of the basement.

2. The motion to suppress. In summarizing the basis for his request for a warrant to search the defendant’s house, the State trooper noted the motor vehicle traffic at the house (which he termed “consistent with narcotics distribution”) and the fact that the defendant appeared to have “a quantity of cocaine on his person readily available for sale.” The trooper expressed the opinion that “a quantity of cocaine is carried from [the defendant’s] residence in his vehicle to his place of work. While at work, as his supply of cocaine diminishes, [the defendant] replenishes same by a stash that he maintains in his truck.”

In denying the defendant’s motion to suppress, the motion judge found that “[o]n most occasions, suspected drug activity [836]*836confirmed by surveillance of any kind warrants a reasonable belief that a residence may be connected to some sort of criminal activity,” citing Commonwealth v. DiStefano, 22 Mass. App. Ct. 535, 540 (1986). He further noted that “it is proper to infer that a drug dealer would keep drugs that he may be dealing within his home,” citing United States v. Gant, 759 F.2d 484, 488 (5th Cir.), cert. denied, 474 U.S. 851 (1985), and Commonwealth v. Singer, 29 Mass. App. Ct. 708, 715 (1991) (disapproved on other grounds in Commonwealth v. Ramirez, 416 Mass. 41, 53 n.19 [1993]). Relying on the fact that the police saw “a high incidence of ‘come and go’ traffic from the defendant’s residence,” the judge concluded that “[t]his type of behavior is consistent with narcotics distribution.” He ruled that “[i]t was proper for the police to believe that the defendant was keeping controlled substances within his home since he went directly from home to work on the nights that the drug transactions were observed.”

a. Governing legal principles. In reviewing a motion to suppress, we accept the judge’s findings of fact unless they are clearly erroneous, but we conduct a de nova review of his conclusions of law. Commonwealth v. James, 427 Mass. 312, 314 (1998). “The standard for probable cause is ‘whether [the magistrate] has a substantial basis for concluding that any of the articles described in the warrant are probably in the place to be searched.... Strong reason to suspect is not adequate.’ ” Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 600 (1991), quoting from Commonwealth v. Upton, 394 Mass. 363, 370 (1985). “The establishment of probable cause to believe that ‘a person is guilty of a crime does not necessarily constitute probable cause to search the person’s residence.’ . . . The connection between the items to be seized and the place to be searched. . . may be found by looking at the type of crime, nature of the items, the suspect’s opportunity to conceal items, and inferences as to where the items are likely to be hidden.” (Citation omitted.) Commonwealth v. Olivares, 30 Mass. App. Ct. at 600.

b. Discussion.

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Cite This Page — Counsel Stack

Bluebook (online)
780 N.E.2d 473, 56 Mass. App. Ct. 833, 2002 Mass. App. LEXIS 1640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-oday-massappct-2002.