Commonwealth v. Pina

902 N.E.2d 917, 453 Mass. 438, 2009 Mass. LEXIS 43
Massachusetts Supreme Judicial Court·Decided March 19, 2009·Published·Cited by 38 cases

Opinions

Ireland, J.

A Superior Court judge allowed the defendant’s motion to suppress cocaine, marijuana, cash, and other items seized by police officers during a search of the defendant’s apartment, based on his conclusion that the affidavit on which the search was based contained insufficient facts to establish probable cause to believe that drugs would be found therein. A single justice of this court granted the Commonwealth’s application for leave to pursue an interlocutory appeal, and the Appeals Court [439] reversed the judge’s decision. Commonwealth v. Pina, 71 Mass. App. Ct. 653, 654 (2008). We granted the defendant’s application for further appellate review. Because we agree with the judge that the affidavit supporting the search fails to establish a nexus between the defendant’s drug activity and his residence, we affirm the order allowing the motion to suppress.

On January 13, 2006, Bryan Safioleas, a detective in the New Bedford police department’s organized crime bureau, applied for a search warrant for an apartment at 984 Sharon Street in New Bedford. A magistrate issued the warrant that same day, and the search of the apartment was executed on January 18, 2006. The sole issue in this case is the sufficiency of the affidavit that accompanied the warrant application. Read in its entirety, see Commonwealth v. Donahue, 430 Mass. 710, 715 (2000); Commonwealth v. James, 424 Mass. 770, 777-778 (1997); Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986), the affidavit presents the following facts.

In November, 2005, Safioleas met with a confidential informant regarding a cocaine delivery service being conducted in New Bedford. The informant told Safioleas that he had purchased, and continued to purchase, cocaine from a male known to him as Robert Pina, who, the informant believed, resided in an apartment at 984 Sharon Street. Safioleas confirmed that the person described by the informant was indeed the defendant and the defendant did live at 984 Sharon Street. The informant told Safioleas that, in order to purchase cocaine, the informant would call a telephone number that had been provided by the defendant. The defendant would instruct the informant to meet him at a certain location and at a certain time, at which place and time the drug purchase ultimately would be completed.

Armed with this information, Safioleas orchestrated a controlled purchase of a quantity of cocaine from the defendant. The informant placed a telephone call to the defendant to arrange for the purchase. A second New Bedford police detective observed the defendant leave his apartment and drive directly to the location where the informant had been instructed to proceed. Safi-oleas observed the defendant and the informant meet briefly and then separate. Safioleas then met the informant at a predetermined location, where the informant delivered to him an unspecified [440] amount of a substance, later field-tested positive as cocaine, which the informant stated had come from the defendant. Safi-oleas had maintained constant surveillance of the informant from the informant’s initial telephone call to the defendant until Safi-oleas accepted the cocaine.

An eight-year veteran of the police department, Safioleas had received extensive training and experience in narcotics distribution. As a result of his training and experience, he was familiar with common tactics in the distribution of controlled substances, such as cocaine. One such tactic, generally known to Safioleas and others in law enforcement, is a narcotics delivery service that controls the time and place of each delivery. The affidavit provides the following information. It is common for drug distributors to assign unique meeting and delivery locations to their customers, in order to assist them in identifying the individual who may have provided information to law enforcement officials resulting in their arrest or the issuance of a search warrant. Varying meeting times and locations also makes it difficult for police to establish set patterns and locations for the deliveries and allows drug sales to be conducted away from a dealer’s principal residence, where narcotics intended for distribution are concealed. The increased foot and motor vehicle traffic attracted by the sale of narcotics would arouse the suspicions of neighbors or police. In addition, by separating the delivery locations from the narcotics storage location, dealers limit law enforcement opportunities to connect them to the narcotics they distribute.

The drug transaction witnessed by Safioleas took place on January 10, 2006. Three days later, he applied for a warrant to search the defendant’s apartment. We now address the merits.

It is established that, in drug cases such as the present one, the affidavit accompanying a search warrant application must contain facts sufficient to demonstrate that there is probable cause to believe that drugs, or related evidence, will be found at the location to be searched. “The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that [drugs or instrumentalities of the drug trade] will be found on the specified premises.” Commonwealth v. Donahue, supra at 712. When that location is a residence, there must be specific information in the affidavit, and reasonable [441] inferences a magistrate may draw, to provide “a sufficient nexus between the defendant’s drug-selling activity and his residence to establish probable cause to search the residence.” Commonwealth v. O’Day, 440 Mass. 296, 304 (2003). See generally Commonwealth v. Upton, 394 Mass. 363, 370 (1985) (basic question is whether magistrate “has a substantial basis for concluding” that article is “probably in the place to be searched. . . . Strong reason to suspect is not adequate”).

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Commonwealth v. Pina, 902 N.E.2d 917, 453 Mass. 438, 2009 Mass. LEXIS 43 (Mass. 2009).

902 N.E.2d 917 (Commonwealth v. Pina) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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