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SJC-12256
COMMONWEALTH vs. MARK PERKINS.
Suffolk. March 7, 2017. - October 10, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.1
Controlled Substances. Firearms. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Warrant, Affidavit, Probable cause. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court Department on August 13, 2014.
A pretrial motion to suppress evidence was heard by Shannon Frison, J., and a motion to reconsider was also heard by her.
An application for leave to prosecute an interlocutory appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.
Nicole M. Nixon, Assistant District Attorney (Graham G. Van Epps, Assistant District Attorney, also present) for the Commonwealth. Robert F. Hennessy (John M. Thompson also present) for the defendant.
1 Justice Hines participated in the deliberation on this case prior to her retirement. 2
GAZIANO, J. A Suffolk County grand jury returned
indictments charging the defendant with trafficking in cocaine
over 200 grams, G. L. c. 94C, § 32E (b) (4); possession of
ammunition after three or more criminal convictions, G. L.
c. 269, §§ 10 (h), 10G (c); and possession of an electrical
weapon, G. L. c. 140, § 131J. The indictments stemmed from a
wiretap investigation by State police and Framingham police of a
drug distribution network operating in Framingham, Natick,
Worcester, and Boston.2 Based on intercepted telephone
conversations between the defendant's alleged middleman and a
street-level distributor of cocaine, police surveillance of a
suspected drug transaction, and other information, a judge in
the Superior Court in Suffolk County issued a warrant
authorizing a search of the defendant's apartment for evidence
including a cellular telephone and drug-related records. The
warrant also authorized police to search for a distinctive
article of clothing (an orange, hooded sweatshirt) allegedly
worn by the defendant at the time of the suspected transaction.
The warrant affidavit did not seek authorization to search for
narcotics. When the warrant was executed, officers seized a
2 As a result of the joint investigation of the alleged trafficking network, the defendant also was indicted by a Middlesex County grand jury on cocaine trafficking charges. 3
large quantity of cocaine, cellular telephones, drug
paraphernalia, and ammunition.
The defendant filed a motion to suppress in the Superior
Court in Middlesex County. Concluding that the affidavit failed
to establish either probable cause to believe that the defendant
sold cocaine or a sufficient nexus between the defendant's
alleged criminal activity and his apartment, a judge allowed the
defendant's motion to suppress the seized evidence. A single
justice of this court allowed the Commonwealth's application to
pursue an interlocutory appeal in the Appeals Court, and we
allowed the defendant's application for direct appellate review.
We conclude that the warrant affidavit established probable
cause to believe that the defendant, acting through a middleman,
sold cocaine to a street-level dealer on the date alleged. It
also established a sufficient nexus between the defendant's
participation in that transaction and his residence to permit a
search for the cellular telephone used to arrange the sale and
the sweatshirt he wore while conducting the transaction. As the
motion judge determined, however, the affidavit did not provide
sufficient particularized information to allow a general search
of the apartment for other "drug-related" evidence.
Accordingly, we remand the matter to the Superior Court for a
determination, after appropriate proceedings, whether the search
exceeded the permissible scope of the warrant. 4
1. Background. a. Investigation and warrant application.
On April 30, 2014, State police Trooper Patrick M. Burke and
Framingham police Detective Robert J. Lewis applied for warrants
to search twelve residences in Middlesex, Suffolk, and Worcester
counties. The defendant's apartment, located in a building on
Commonwealth Avenue in the Allston section of Boston, was one of
the twelve. In support of the warrant application, the officers
submitted a 221-page affidavit that described a wiretap
investigation into a drug distribution network headed by Robert
Hairston, operating in Framingham, Worcester, Natick, Boston and
surrounding areas. The warrant affidavit provided as follows.
Pursuant to several wiretap warrants issued in April, 2014,
officers intercepted text messages and calls between telephones
used by Hairston and other members of his organization. Through
intercepted telephone calls between Hairston and Nasean Johnson,3
his alleged cocaine supplier, police learned the locations of
the transactions, the amount of cocaine Hairston agreed to
purchase from Johnson, and the purchase price.
i. Transaction on April 23, 2014. The affidavit alleged
that on April 23, 2014, the defendant, assisted by Johnson, who
was acting as a middleman, sold Hairston 125 grams of cocaine
for $5,200. The affidavit relied upon a detailed description of
3 The wiretap warrants did not authorize interception of communications to and from Nasean Johnson's telephone. 5
cellular telephone calls intercepted on April 23, 2014, to
establish probable cause that the defendant had conducted the
transaction. These calls were described as follows.
At 11 A.M., Hairston telephoned Johnson to discuss a
resupply of cocaine. In response to the question, "What's the
word?," Johnson said that he had called his own supplier,
referred to as "Ol' boy," and informed Ol' boy that Hairston
wanted "two." Hairston asked if the supplier would "come this
way" (toward Framingham). Johnson replied that Ol' boy would be
there "if you want him to."
When Hairston complained that the $5,200 purchase price was
excessive, Johnson responded that his supplier had determined
the price: "Nah, he said fifty-two, yo." Hairston remarked
that this was a "crazy" price. Johnson reiterated that his
supplier had set the price, and added, "I'm not getting nothing
off it, he ain't looking out for me." Johnson urged Hairston to
let him know as soon as possible if he intended to complete the
purchase, because he had to call his supplier "while it's still
early."
At 12:08 P.M., police intercepted a telephone call in which
Hairston and Johnson agreed to meet at the Natick Mall at 2 P.M.
to complete the transaction. Johnson also mentioned that his
supplier would be coming from Brighton. Later, Hairston and 6
Johnson arranged to meet at a particular department store
parking lot.
At 2:35 P.M., Hairston informed Johnson that he was
arriving at the parking lot. A few minutes later, a police
officer observed the defendant, wearing an orange, hooded
sweatshirt (hoodie) and jeans, walking from a restaurant into
the parking lot. At 2:37 P.M., Johnson telephoned Hairston.
While they were trying to locate each other in the parking lot,
Hairston thought that he had spotted Johnson wearing a hoodie,
but immediately corrected himself. "Oh I see you, that's you in
the hoodie? Nah, that's not you in the hoodie. Hell no."
Johnson told Hairston that the person in the hoodie was his
associate. "Yeah, yeah, keep going that my peeps."
At approximately 2:40 P.M., police observed Hairston enter
a Nissan Altima automobile, driven by Johnson, parked in a
parking space directly across from the entrance to the
department store. A few minutes later, Hairston got out of the
Altima and entered his Audi vehicle. Johnson then left the
Altima and approached the Audi. After a brief conversation with
Hairston, Johnson re-entered the Altima and left the parking
lot.
Surveillance officers followed the Altima. After
approximately twenty minutes, at 3:02 P.M., uniformed officers
stopped the vehicle on the purported ground of a traffic 7
violation. They identified the defendant as the individual
driving the vehicle and Johnson as the passenger. When the
defendant opened the glove compartment to retrieve his
registration, they saw a bundle of cash, later determined to be
$5,200.
During the course of the stop, at 3:10 P.M., police
intercepted a telephone call between Hairston and Johnson, in
which Hairston complained that the cocaine he had just purchased
was "wet." Johnson told Hairston that he would have to call
back "because I just got pulled over."
At 3:24 P.M., Johnson telephoned Hairston. Johnson said
that his supplier had advised him that the cocaine would dry out
in approximately one hour. Johnson added that his supplier
promised to make it up to Hairston on the next purchase. "[B]ut
on the next one he's got you."
b. Search of the defendant's apartment. On April 30,
2014, a judge of the Superior Court in Suffolk County issued a
search warrant authorizing police to search the defendant's
apartment for evidence of his participation in the cocaine
distribution network. The warrant authorized the seizure of
records, in paper or electronic form, related to the defendant's
alleged drug distribution business; records related to the
financial proceeds stemming from that business; currency used to
purchase or sell cocaine; paraphernalia used in the distribution 8
of cocaine; cellular telephones used to further the defendant's
alleged drug distribution business, including cellular
telephones showing evidence of contact with Johnson's telephone
number; personal contact lists; any documentation identifying
persons having custody or control over the premises or its
contents; and the orange, hooded sweatshirt the police observed
during the April 23, 2014, drug transaction.
Police executed the warrant on May 1, 2014. According to
the search warrant return, they seized three bags of cocaine, a
scale, two ice cube trays, a bottle of Inositol powder, paper
containing white powdery residue, $1,000 in cash, nine cellular
telephones, an Apple iPad brand tablet computer, one round of
ammunition, a stun gun, a container for a "concealed carry deep
cover holster," a checkbook in the names of the defendant and
his girl friend, one white circular pill, and miscellaneous
paperwork.4
c. Prior proceedings. As stated, the defendant filed a
motion in the Superior Court to suppress all evidence seized
during the execution of the search warrant. A judge of that
court allowed the defendant's motion on the grounds that the
search warrant affidavit failed to establish either the
defendant's involvement in the drug transaction or a sufficient
4 Police did not find an orange hooded sweatshirt. 9
nexus between the alleged drug transaction and his apartment.
The Commonwealth sought reconsideration of the suppression order
and written findings and rulings. After an evidentiary hearing,
the judge issued the requested written findings and denied the
motion for reconsideration.
2. Discussion. a. Standard of review. Under both the
Fourth Amendment to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights, a search warrant may
issue only upon a showing of probable cause. Commonwealth v.
Valerio, 449 Mass. 562, 566 (2007). In reviewing a
determination that there was probable cause to issue a search
warrant, we consider the facts contained within the "four
corners of the [search warrant] affidavit" (citation omitted),
see Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), and the
reasonable inferences to be drawn from them. See Commonwealth
v. Martinez, 476 Mass. 410, 415 (2017). To establish probable
cause, the facts contained in the warrant affidavit, and the
reasonable inferences drawn from them, must be sufficient for
the issuing judge to conclude that the police seek items related
to criminal activity and that the items described "reasonably
may be expected to be located in the place to be searched at the
time the warrant issues" (citation omitted). Commonwealth v.
Walker, 438 Mass. 246, 249 (2002). 10
The question whether there was probable cause to issue the
search warrant is a question of law that we review de novo, see
Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), in a
commonsense and realistic manner. See Commonwealth v. Molina,
476 Mass. 388, 394 (2017); Commonwealth v. Cruz, 430 Mass. 838,
840 (2000). A reviewing court reads the warrant affidavit as a
whole, without overly parsing or severing it, or subjecting it
to "hypercritical analysis" (citation omitted). Commonwealth v.
Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v.
Anthony, 451 Mass. 59,68 (2008) ("In dealing with probable
cause . . . we deal with probabilities. These are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act" [citation omitted]).
b. Whether the warrant affidavit established probable
cause to believe that the defendant participated in the April 23
drug transaction. In allowing the defendant's motion to
suppress, the motion judge determined that police had
"absolutely no information that they provided the issuing
Justice as to the role or duties of Mark Perkins in the alleged
drug conspiracy." Drawing all reasonable inferences from the
information set forth in the affidavit, we conclude that the
search warrant affidavit established probable cause to believe 11
that the defendant participated in the April 23, 2014, drug
transaction.
First, it is reasonable to infer from the affidavit that
Johnson acted as a middleman for the April 23, 2014, sale of 125
grams of cocaine to Hairston. This inference is supported by
several statements made during the 11 A.M. telephone
conversations between Hairston and Johnson in which Hairston
sought to purchase cocaine. Johnson told Hairston that he had
called another individual, nicknamed Ol’ boy, and informed him
that Hairston "wanted two." Johnson offered, and Hairston
agreed, that "Ol' boy" should "come this way." When Hairston
commented that the price was excessive, Johnson informed
Hairston that his supplier had set the purchase price, and that
Johnson himself was not being compensated for arranging the
transaction. "That's what he said, fifty-two. I'm not getting
nothing off it, he ain't looking out for me." At the end of the
conversation, Johnson said, "So if you want to make that move I
have to call him while it's still early. You know?"
Second, it was reasonable for the issuing judge to have
inferred that the defendant was Johnson's source of supply. In
another telephone call with Hairston, Johnson indicated that his
source would come from Brighton and would meet them at the
Natick Mall at 2 P.M.; the defendant lived in Allston, a section
of Boston adjacent to Brighton and arrived at the mall at 12
approximately 2:35 P.M. While Hairston and Johnson were
attempting to locate each other in the parking lot, Hairston
asked, "Oh I see you, that's you in the hoodie?" and Johnson
responded, "Yeah, yeah, keep going[;] that my peeps." At the
same time, police saw the defendant in the parking lot near an
ice cream store where Hairston was standing; the defendant was
wearing an orange, hooded sweatshirt and had a cellular
telephone pressed to his ear.
After Hairston had entered the Altima where Johnson was
seated, then returned to his Audi, the defendant drove the
Altima out of the parking lot, with Johnson as his passenger.
When police stopped the Altima under the ruse of a traffic
violation, they saw $5,200 in cash (the same amount as the
purchase price that had been discussed) in the glove
compartment. While the Altima was stopped, Hairston telephoned
Johnson to complain that the cocaine he had just purchased was
"wet." Johnson said he would have to call later because he had
just been pulled over by police. Johnson then telephoned
Hairston a few minutes later and assured him that "he" had said
to let the cocaine dry and that "he" had said he would make good
on a future transaction. Based on this series of telephone
calls and events, a reasonable inference could be drawn that the
source Johnson referenced was the defendant, who was present in
the Altima with Johnson at that time. 13
c. Whether the search warrant affidavit established a
sufficient nexus to the defendant's apartment. "Information
establishing that a person is guilty of a crime does not
necessarily constitute probable cause to search the person's
residence." Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.
denied, 464 U.S. 860 (1983). See Commonwealth v. Matias, 440
Mass. 787, 794 (2004).
To establish probable cause to search an individual's
house, the search warrant affidavit must establish a
"substantial basis for concluding that evidence connected to the
crime will be found on the specified premises. " Tapia, 463
Mass. at 726, quoting Commonwealth v. Donahue, 430 Mass. 710,
712 (2000). The nexus between the crime alleged and the place
to be searched "need not be based on direct observation."
Matias, 440 Mass. at 794, quoting Cinelli, 389 Mass. at 213.
"No bright-line rule can establish whether there is a nexus
between suspected drug dealing and a defendant's home."
Commonwealth v. Escalera, 462 Mass. 636, 643 (2012). The nexus
to search a residence for evidence of a crime "may be found in
the type of crime, the nature of the . . . items [sought], the
extent of the suspect's opportunity for concealment, and normal
inferences as to where a criminal would be likely to hide [items
of the sort sought]" (quotations and citation omitted).
Cinelli, supra. 14
We consider in turn the individual items to be searched as
listed in the warrant to determine whether there was a
sufficient nexus between the item and the defendant's home.
i. Cellular telephones. The defendant argues that the
warrant affidavit did not set forth specific information
connecting his alleged criminal activity to his apartment. He
asserts that in Commonwealth v. White, 475 Mass. 583 (2016),
this court rejected "nearly identical efforts by the
Commonwealth to rely on general considerations to establish
probable cause to search a cellular telephone." We conclude
that the search warrant affidavit established probable cause to
search the defendant's apartment for the cellular telephone he
used to arrange the April 23, 2014, transaction.
The search warrant authorized police to search the
defendant's residence for "[c]ellular telephones used to
facilitate narcotics transactions, including [a] telephone with
unidentified call number, showing evidence of contact with [a
specific telephone number] ('Nasean Johnson Phone')" and
"[p]ersonal contact lists or telephone directories, in paper or
electronic form, which reflect the names or nicknames of parties
associated with telephone numbers, including the electronic
contact lists of cellular telephones."
In Commonwealth v. White, 475 Mass. at 590, we noted that
the police "did not have any information that [a] cellular 15
telephone was used in the crime under investigation." Rather,
they believed that if the defendant had planned and committed
multiple crimes with two accomplices, it was likely that he had
communicated with the accomplices by using his cellular
telephone, and, accordingly, likely that evidence of these
communications would be found on the device. Id. We determined
that "police may not seize or search . . . a cellular telephone
to look for evidence unless they have information establishing
the existence of particularized evidence likely to be found
there." Id. See Commonwealth v. Broom, 474 Mass. 486, 496-497
(2016) ("general" and "conclusory" opinion by affiant that
individual is likely to store information in cellular telephone
does not satisfy probable cause standard).
In this case, however, quite unlike the situation in White,
police had detailed and specific knowledge concerning the
defendant's use of a cellular telephone to arrange drug
transactions, and a particular telephone number with which that
cellular telephone had been in contact at a specific time. The
affidavit established probable cause to believe that the
defendant had used a cellular telephone to arrange cocaine sales
through Johnson, his middleman. During the intercepted 11 A.M.
telephone conversation between Johnson and Hairston, Johnson
twice mentioned calling his supplier. When Hairston, who was
seeking to purchase cocaine, asked, "Well, ah, what's the word?" 16
Johnson responded, "I called Ol' boy too, man." At the end of
the conversation, when the two discussed the price charged by
"Ol' boy," Johnson told Hairston, "So, if you want to make that
move I have to call him while it's still early. You know?"
[Emphases added.]
Police also made direct observations corroborating a number
of the statements made in the calls. They observed the
defendant arrive in the parking lot where the transaction had
been arranged to take place at the scheduled time, talking on a
cellular telephone while moving towards an ice cream store
described in the intercepted conversations. The defendant left
the parking lot with Johnson immediately after the presumed drug
transaction. Thus, it was reasonable to infer that Johnson kept
the defendant informed about the transaction as those plans
evolved throughout the afternoon. Because there was probable
cause to believe that the defendant had used a cellular
telephone to arrange the drug sale, through Johnson as
intermediary, and that he had used cellular telephones to
arrange drug transactions on other occasions, the warrant
affidavit sought to seize all of the cellular telephones found
in the defendant's apartment. We conclude that the seizure of
the nine telephones found in the apartment was supported by
probable cause. See Molina, 476 Mass. at 396-397 (probable
cause existed for search warrant to seize all computers at 17
defendant's apartment where evidence showed a particular IP
address had been used to acquire child pornography and all
computers on router in defendant's house shared that IP
address).
The conclusion that the warrant affidavit established a
sufficient nexus to search the defendant's apartment for the
cellular telephone used to communicate with Johnson on April 23,
2014, does not mean, however, that police had unlimited
discretion to search every portion of the nine cellular
telephones seized from the apartment. The Fourth Amendment,
art. 14, and G. L. c. 276, § 2, require that a search warrant
describe with particularity the places to be searched and the
items to be seized. See Molina, 476 Mass. at 394. "By defining
and limiting the scope of the search, these constitutional and
statutory particularity requirements prohibit general warrants
amounting to 'exploratory rummaging in a person's belongings.'"
Id., quoting Coolidge v. New Hampshire, 403 U.S. 443, 467
(1971). See Commonwealth v. Dorelas, 473 Mass. 496, 499 n.3
(2016) (examining whether warrant to search cellular telephone
was overly broad).
Here, the warrant established probable cause to search the
call logs of the nine seized telephones to determine which, if
any, had contacted the telephone number belonging to Johnson.
In addition, the police were authorized to search the telephone 18
contact lists to determine whether there was evidence that the
defendant was associated with Johnson. See Dorelas, 473 Mass.
at 502 (search of cellular telephone files "must be done with
special care"); Commonwealth v. Berry, 463 Mass. 800, 807 (2012)
(distinguishing between limited search of cellular telephone to
view recent call activity and more intrusive search of device).
The police were not authorized to rummage through the entirety
of the defendant's cellular telephones, and were confined by the
plain terms of the warrant affidavit to call activity and
contact lists. See Dorelas, supra, at 510 ("no impediment to
limiting the search to certain types . . . of files stored in
specific sections" of cellular telephone).
ii. The orange sweatshirt. As an initial matter, the
defendant argues that the Commonwealth's contention that there
was probable cause to search for the orange sweatshirt was not
raised before the motion judge, and therefore it may not be
considered as a basis for reversing the order allowing his
motion to suppress. See Commonwealth v. Bettencourt, 447 Mass.
631, 633-634 (2006) (arguments not raised below by Commonwealth
in connection with motion to suppress are usually not considered
on appeal as basis for reversal). We do not agree.
In its opposition to the defendant's motion to suppress,
the Commonwealth stated that the issuing judge authorized the
police to seize an "[o]range[,] hooded sweatshirt, as observed 19
April 23, 2014[,] in Natick." The Commonwealth then argued that
the defendant's appearance at the Natick mall during the April
23, 2014, drug transaction was evidence of his participation in
the drug trafficking conspiracy. While focused on other items
sought under the search warrant, the Commonwealth's argument in
opposition to the motion to suppress ultimately addressed the
sufficiency of the warrant affidavit to establish probable cause
to search for all of the listed items. Contrast Bettencourt,
447 Mass. at 633-634 (court did not consider Commonwealth's
argument that State trooper's actions were justified because
actions were taken pursuant to trooper's community caretaking
function, where argument was raised for first time on appeal).
A warrant affidavit may, in particular circumstances,
establish probable cause to search for articles of clothing,
including at a suspect's residence, to identify a suspect in a
criminal investigation. "There is no prohibition against
seizure of articles of clothing to be used for evidentiary
purposes where, as here, there is a nexus between these articles
and the crime." Commonwealth v. Murray, 359 Mass. 541, 547
(1971). See Commonwealth v. Perez, 357 Mass. 290, 292-293, 298
(1970) (probable cause for seizure of blood-stained articles of
clothing at dry cleaner to aid in identification aspect of
investigation). In Commonwealth v. Cavitt, 460 Mass. 617, 627-
628 (2011), we held that police had probable cause to search an 20
apartment for clothing, including red and white sneakers, to
identify a defendant as the suspected robber. In Commonwealth
v. James, 424 Mass. 770, 774 (1997), police sought to search
suspects' homes for dark clothing, based on eyewitness account
of the events surrounding a killing. We held that the search
was valid given that the evidence, which could help identify the
suspects as the perpetrator, was "durable, of continuing utility
to the defendants, and it was reasonable to expect that they
would be kept at home, particularly as they are not inherently
incriminating to possess." Id. at 778.
The defendant argues that, because the affiants already had
positively identified the black male wearing an orange, hooded
sweatshirt as the defendant during the motor vehicle stop on the
day of the drug transaction, the affidavit did not provide
probable cause to believe that recovery of the orange sweatshirt
would meaningfully aid in a particular apprehension or
conviction in this case.
"The Fourth Amendment does not bar a search for evidence to
prove the commission of a crime[,] provided there is probable
cause for the belief that the evidence sought will aid in a
particular apprehension or conviction." Murray, 359 Mass. at
547. See Matter of Lavigne, 418 Mass. 831, 835 (1994), quoting
Murray, supra ("a search for evidence to prove the commission of
a crime [is not barred] provided there is probable cause for the 21
belief that the evidence sought will aid in a particular
apprehension or conviction."
The orange sweatshirt, if found in the defendant's
apartment, would have been relevant to his identification as the
seller in the transaction. The Commonwealth could have used the
sweatshirt to corroborate police observations of the defendant
in the department store parking lot at the time of the
intercepted exchange between Hairston and Johnson. This could,
in turn, have assisted the Commonwealth to prove that the
defendant was the supplier who promised to be present at the
exchange. The fact that the officers who submitted the search
warrant affidavit had identified the defendant during the motor
vehicle stop, which occurred approximately twenty minutes after
the drug transaction, did not negate the sweatshirt's
evidentiary value. See Warden, Md. Penitentiary v. Hayden, 387
U.S. 294, 306-307 (1967) (government may seize evidence simply
for purpose of proving crime).
Our probable cause analysis requires that the affidavit
"provide[] the magistrate with a substantial basis for
concluding that any of such articles was probably present in the
[residence]." See Commonwealth v. Stewart, 358 Mass. 747, 749
(1971). Because the warrant application set forth facts derived
from the registry of motor vehicles and direct police
observation that the defendant lived at the apartment named in 22
the search warrant affidavit, it was reasonable to infer that
the defendant likely kept his clothing, including the orange
sweatshirt, in this apartment. See James, 424 Mass. at 778
(suspect's clothing reasonably expected to be kept at home,
particularly given that it is not inherently incriminating to
possess items of clothing).
iii. Drug records, proceeds, and paraphernalia. The
Commonwealth maintains that "circumstantial evidence coupled
with the affiant's specialized knowledge concerning the
logistics of narcotics distribution established probable cause"
to search for drug-related evidence, including proceeds and
records of drug distribution, in the defendant's apartment. The
Commonwealth points out that the nexus between the crime alleged
and the place to be searched may be established through normal
inferences as to where such items are typically kept, see
Cinelli, 389 Mass. at 213, and that a reviewing court may
consider the experience and expertise of a police officer in
making this determination, see White, 475 Mass. at 589. This
does not establish the nexus the Commonwealth suggests.
The affidavit here did not contain sufficient
particularized information to justify a search of the defendants
apartment for drug-related records, proceeds, and paraphernalia.
The affidavit included a single, conclusory statement that
probable cause existed based on the affiant's "training and 23
experience and the facts and circumstances learned during the
course of this investigation."5 The affidavit contained no
facts, or opinion based upon the affiant's considerable
experience as a narcotics officer, that would have establish
probable cause to believe that the defendant would be likely to
store particular items of evidence in his home. Contrast
Commonwealth v. Lima, 80 Mass. App. Ct. 114, 118-119 (2011)
(affidavit premised on police officer's specialized knowledge
supported inference that drug organization utilized specific
dwelling to store proceeds and records); Commonwealth v.
Santiago, 66 Mass. App. Ct. 515, 521-522 (2006) (magistrate
entitled to rely on specific facts drawn from police officer's
experience to support affiant's conclusion that records,
ledgers, or proceeds were contained in particular dwelling).
Accordingly, we affirm the motion judge's determination that the
affidavit failed to establish probable cause to conduct a
general search for drug-related evidence.
3. Conclusion. The order allowing the defendant's motion
to suppress is vacated and set aside. The matter is remanded to
the Superior Court for further proceedings consistent with this
5 The Commonwealth maintains that the affiants offered an opinion concerning records typically maintained by drug dealers. This opinion, found in an appended affidavit submitted in support of an application for a wiretap, concerned the general structure of a drug organization, and did not address the type of evidence that would be found in this defendant's residence. 24
opinion, to determine, consistent with this opinion, whether the
search exceeded the permissible scope of the warrant.
So ordered.