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
23-P-633
COMMONWEALTH
vs.
STERLING MELO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a jury of two offenses
involving the distribution of fentanyl, stemming from a series
of controlled purchases between the defendant and an undercover
officer. On appeal the defendant argues that a judge erred in
denying his motion for disclosure of the identity and background
of a confidential informant, where the confidential informant
participated (with the undercover officer) in prior controlled
purchases that did not result in criminal charges. The
defendant also argues that evidence obtained from a pole camera
surveilling his residence should have been suppressed, alleging
a lack of the requisite probable cause for such surveillance.
We affirm. Background. There are two motions at issue in this appeal.
In July of 2020, the defendant moved for disclosure regarding
the confidential informant involved in the investigation of his
case, arguing that the Commonwealth could not assert the
informant privilege under the circumstances. In December of
2021, the defendant moved to suppress evidence obtained by pole
camera surveillance, arguing that the Supreme Judicial Court's
then-recent decision in Commonwealth v. Mora, 485 Mass. 360
(2020), required suppression. The following facts are drawn
from the documentary evidence before both motion judges.1
In November of 2018, a confidential informant (CI)
described as a "Lynn Police Drug Task Force informant" reported
that the defendant was supplying heroin and fentanyl to
customers in the Lynn area. The CI stated that it had purchased
drugs from the defendant previously, and named the defendant's
street of residence. Officers conducted a registry of motor
vehicles (RMV) search that revealed a Lynn address for the
defendant, on the street that the CI had named; officers also
searched a law enforcement research database and found that the
1 The two motions were argued separately, and the evidence before each motion judge differed slightly. In evaluating the orders denying the motions, we considered in each instance only the record before each judge. See Commonwealth v. Johnson, 481 Mass. 710, 726 n.14 (2019).
2 defendant was registered to vote at that same address, and had
utilities and phone numbers listed at that address.
That same month, the CI arranged a controlled purchase of
narcotics from the defendant, which occurred at the defendant's
residence. A law enforcement surveillance team followed the CI
to the defendant's residence, but lost sight of the CI before
the CI entered the building. The CI later reported that the
transaction began inside the defendant's apartment building,
continued in the defendant's car, and concluded outside the
apartment building. Within the same week, the CI made a second
controlled purchase of narcotics, accompanied by an undercover
officer with the State Police who drove the CI to the
defendant's residence. The undercover officer watched as the
defendant opened a side door, after which the defendant and the
CI entered the building. The CI then purchased narcotics inside
the building.
On November 30, 2018, investigators installed a pole camera
in the area of the defendant's residence, to surveil the
defendant. The police did not seek a warrant before installing
the camera; the installation occurred prior to the decision in
Mora, which established that such surveillance constituted a
search under art. 14 of the Massachusetts Declaration of Rights.
See Mora, 485 Mass. at 376. In response to the defendant's
3 post-Mora motion to suppress, the Commonwealth submitted an
affidavit from State Trooper Carly Rose, who was involved with
the investigation of the defendant (but was not the undercover
officer). Trooper Rose attested that based on the CI's
information, the confirmation of the defendant's address through
the RMV and law enforcement database searches, and the two
controlled purchases, she "believed that [the defendant] resided
at [the residence] and was also using that location to store
narcotics and the illicit proceeds of his narcotics operation."2
In December of 2018,3 the CI arranged a third controlled
buy, and the undercover officer drove the CI to the defendant's
residence. Once again, the transaction between the CI and the
defendant occurred inside the defendant's apartment building.
On this occasion when the CI and the defendant left the
building, the defendant saw the undercover officer in the car,
and the two of them acknowledged each other. RA 124.
Thereafter, in December of 2018 and January of 2019, the
undercover officer conducted three additional controlled
transactions directly with the defendant, without the CI. These
2 Trooper Rose made this attestation by affidavit in September of 2021, for the purpose of justifying the pole camera installation.
3 At trial, the undercover officer testified that this third controlled buy occurred in November of 2018. This discrepancy has no effect on our analysis below.
4 controlled buys all occurred outside, but in the vicinity of,
the defendant's residence. In January of 2019 the defendant
began to show suspicion of the undercover officer, and the
police halted the controlled buys.
In June of 2019, the defendant reinitiated contact with the
undercover officer. The defendant told the undercover officer
that he had "some good stuff" and offered a sample. In July and
August of 2019, the undercover officer and the defendant engaged
in three further controlled purchases. These purchases also
took place in the vicinity of the defendant's residence.
On August 14, 2019, Trooper Rose submitted an affidavit
seeking a warrant to search the defendant's residence, person,
and phone. In that affidavit, Trooper Rose indicated that she
had spoken with the CI two days prior, and that the CI
identified the defendant's apartment; the CI stated that it had
been to the defendant's apartment "on many occasions when
transactions occurred." The CI also stated that the defendant
often hid narcotics in the curtains and curtain rods of his
apartment. Trooper Rose stated in her affidavit that "CI's true
identity will be kept confidential to ensure the safety of CI
and CI's family."
On August 15, 2019, officers took the defendant into
custody and searched his residence. The police did not find any
5 narcotics, but found cell phones, money, and a "finger" press
used for pressing narcotics. The defendant was indicted on
three counts of possession of fentanyl with intent to
distribute, G. L. c. 94C, § 32 (a), and three counts of
trafficking in ten grams or more of fentanyl, G. L. c. 94C,
§ 32E (c 1/2). Relevant here, the indictments were based only
on the controlled buys conducted by the undercover officer when
the CI was not present.
The defendant filed a motion for disclosure of information
regarding the CI, including the CI's identity, address, and
history with the police.4 The defendant argued that the CI's
credibility was an issue at trial, because the identification of
the defendant by name resulted from the CI's report and
subsequent database searches based on that report; the theory of
the defense was misidentification. The defendant's motion was
denied after a nonevidentiary hearing. The defendant thereafter
moved separately to suppress all evidence collected from the
pole camera, arguing that there was no probable cause for the
surveillance as required by Mora, 485 Mass. at 376-377. After a
nonevidentiary hearing, the motion judge denied the motion to
suppress as to the pole camera evidence collected during the
4 The Commonwealth had previously moved for a protective order.
6 time periods when the controlled buys occurred -- from November
30, 2018 to January 9, 2019, and from July 25, 2019 to August
15, 2019.5
After a trial, a jury convicted the defendant on one of the
possession charges and one of the trafficking charges; this
appeal followed.
Discussion. 1. Disclosure of confidential informant. In
response to the defendant's motion for disclosure of the CI
information, the Commonwealth successfully invoked the
"informant privilege." When asserted properly, the informant
privilege excuses the Commonwealth from providing discovery
regarding a confidential informant's identity, including
"details that would in effect identify the informant."
Commonwealth v. Whitfield, 492 Mass. 61, 68 (2023), quoting
Commonwealth v. John, 36 Mass. App. Ct. 702, 707 (1994). See
Commonwealth v. Bonnett, 472 Mass. 827, 846 (2015), S.C., 482
Mass. 838 (2019). Here the Commonwealth argued that the
informant privilege should be applied to protect the safety of
the CI. " We review a decision on a motion for disclosure of
information subject to the Commonwealth's assertion of the
informant[] privilege for an abuse of discretion." Whitfield,
5 The judge who heard the motion to suppress was not the judge who heard the motion for CI disclosure.
7 supra at 67. "Where, as here, the motion judge conducted a
nonevidentiary hearing, and the record before the judge
consisted only of documentary evidence . . . we are in the same
position as the motion judge to assess the documentary evidence"
(quotations and citation omitted). Id.
Our case law sets out a two-stage analysis for evaluating
the government's assertion of the informant privilege. "The
first stage involves preliminary determinations as to
(a) whether the Commonwealth has properly asserted an informant
privilege, and (b) whether the defendant has adequately
challenged the assertion of the privilege as an impermissible
interference with his or her right to present a defense."
Bonnett, 472 Mass. at 846. The Commonwealth properly asserts
the privilege, and satisfies its first-stage burden, "where
disclosure would endanger the informant or otherwise impede law
enforcement efforts." Id. at 847. The defendant satisfies his
first stage burden by presenting "some offering so that the
trial judge may assess the materiality and relevancy of the
disclosure to the defense, if that relevancy is not apparent
from the nature of the case and the defense offered thereto."
Id., quoting Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013).
The defendant's burden at this first stage is "relatively
undemanding." Bonnett, supra. Only if the privilege has been
8 asserted properly by the Commonwealth, and challenged adequately
by the defendant, do we move to the second stage, which involves
"a balancing test . . . in which the interest of the public in
protecting the anonymity of informants is weighed against the
defendant's right to defend himself." Id. at 846-847.
As to the Commonwealth's first-stage burden, the
Commonwealth argues that it put forth sufficient evidence, in
the form of Trooper Rose's affidavit, that disclosure of the
CI's identity would put the CI and the CI's family at risk. The
defendant argues that the Commonwealth failed to substantiate
the safety concerns underlying Trooper Rose's sworn statement.
However, the risk to the CI is apparent from the affidavit. The
CI was a customer of the defendant, and had been to the
defendant's apartment "on many occasions" to purchase drugs.
The CI informed the police of the defendant's drug sales, and
the CI made three controlled purchases from the defendant.
Furthermore, the CI had a track record as an informant to the
Lynn police; one could make the reasonable inference, as the
motion judge did in this case, that "the CI is from the Lynn
area and that Lynn police officers have worked with the CI in
the past." These facts established safety concerns sufficient
for the Commonwealth to invoke the informant privilege. See
Commonwealth v. Gandia, 492 Mass. 1004, 1004-1005, 1007 (2023)
9 (rejecting defendant's argument that Commonwealth failed to show
"specific" and "tangible" risks to informant, where informant
had observed, but had not participated in, defendant's drug
transactions, and where informant had previously provided
multiple tips resulting in seizure of contraband, including
firearms).
Moving to the defendant's first-stage burden, the defendant
argues that disclosure of the CI's identity was material and
relevant to his defense, because it would have enabled him to
call the CI as a witness and challenge the CI's credibility.
The defendant emphasized to the motion judge and on appeal that
the CI provided the initial identification of the defendant in
November 2018, played an important role in the investigation by
arranging controlled purchases, and provided allegations of drug
possession in August 2019 that the police relied on in obtaining
a search warrant. The defendant has not shown, however, how
attacking the credibility of the CI would have been material to
his defense, where the CI was not a participant or even a
witness to any of the charged crimes. As noted above, the
charged offenses all arose out of buys by the undercover
officer, when the CI was not present. Because the undercover
officer observed the defendant firsthand, and participated in
the charged drug transactions with him, whereas the CI did not,
10 the charges did not turn on the credibility of the informant who
initially led the officer to the defendant.6 See Commonwealth v.
Barry, 481 Mass. 388, 411 (2019) (defendant did not meet first-
stage burden where informant, who heard and reported rumor that
defendant was not culpable, was not percipient witness, but
reported "word on the street"). See also Commonwealth v.
Connolly, 454 Mass. 808, 827-828 (2009) (affirming nondisclosure
of informant where informant introduced undercover officer to
defendant, but informant was not percipient witness to charged
crimes); Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 511
(1998) (no prejudice to defendant from lack of disclosure where
defendant was not charged with only alleged crime in which
informant participated). As the defendant did not meet his
first-stage burden, there was no abuse of discretion in denying
his motion for disclosure of the confidential informant.7
6 The defendant emphasizes that the CI informed Trooper Rose that the defendant "often will secrete narcotics in the curtains and curtain rods of the residence," but that no such narcotics were found. However, the defendant sought disclosure of the CI's identity to call the CI as a witness at trial, not to challenge the search warrant. As stated above, the CI was not a witness to the crimes charged.
7 Even if we were to assume that the defendant satisfied his first-stage burden, the defendant would not have prevailed at the second stage, as he did not show that the informant's identity was sufficiently "relevant and helpful" to his defense to justify disclosure. See Bonnett, 472 Mass. at 847-848, quoting Commonwealth v. Dias, 451 Mass. 463, 468 (2008).
11 2. Motion to suppress. The defendant also argues that the
warrantless surveillance of his residence by pole camera was an
unconstitutional search, and that the evidence obtained
therefrom should have been suppressed. In Mora, 485 Mass. at
375-376, the Supreme Judicial Court held that "targeted, long-
duration pole camera surveillance of [defendants'] homes" was a
search under art. 14 of the Massachusetts Declaration of Rights,
and that a warrant was required for such surveillance. The
surveillance at issue occurred prior to the Mora decision,
however, and the Supreme Judicial Court has held that where such
pre-Mora pole camera evidence is at issue, the evidence should
not be suppressed as long as the Commonwealth can show that it
had probable cause that "a particular offense had been, was
being, or was about to be committed, and that the pole camera
surveillance undertaken would produce evidence of the offense or
that it would aid in the apprehension of the suspect."
Commonwealth v. Comenzo, 489 Mass. 155, 160 (2022). See Mora,
supra at 376-377.
In light of Mora, the parties agree that the pole camera
surveillance in this case constituted a search, and must be
justified by probable cause. The defendant contends that as of
November 30, 2018, the date that the pole camera was installed,
12 probable cause was lacking; he argues in particular that the
information provided by the CI lacked indicia of reliability.8
We agree with the motion judge that the Commonwealth's
affidavits demonstrated probable cause to begin surveillance on
November 30, 2018, and again on July 25, 2019.9 The standard for
probable cause is less than a preponderance of the evidence; in
this context, it means a reasonable likelihood that a crime was
being committed at the defendant's residence, and that pole
camera surveillance would produce evidence of that crime. See
Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509 (2019). As
of November 30, 2018, the officers plainly had probable cause to
believe that narcotics were being illegally distributed at the
defendant's residence. By that date the defendant had twice
sold narcotics to the CI at his residence; during the first
controlled buy, the CI was under law enforcement surveillance
8 The defendant also argues that a showing of probable cause as of November 30, 2018, did not justify surveillance for over eight months thereafter. We need not reach this issue, however, because much of the evidence from this time was suppressed; in effect, we are reviewing two periods of surveillance, each several weeks long, rather than a continuous eight-month period of surveillance.
9 The Commonwealth submitted both the search warrant affidavit and a supplemental affidavit prepared in response to the motion to suppress, each authored by Trooper Rose. See Mora, 485 Mass. at 377 (Commonwealth may submit warrant affidavits, or other evidence including supplemental affidavits, to establish probable cause).
13 for part of the transaction, and during the second controlled
buy, a State trooper had witnessed material events immediately
outside the defendant's residence. At least the second
controlled purchase included the essential components for such a
purchase to establish the veracity of the CI, as set out in
Commonwealth v. Desper, 419 Mass. 163, 168 (1994). By July 25,
2019, the defendant had participated in four further controlled
purchases of narcotics, all at or around his residence, and for
three of which the undercover officer was the purchaser;
furthermore, the defendant had reinitiated contact with the
undercover officer only a month prior, seeking to sell more
narcotics.
Furthermore, the officers had probable cause that the pole
camera surveillance would produce evidence of illegal drug
distribution. The pole camera did not look inside the
defendant's residence, but it was directed at the defendant's
residence and the area outside the defendant's residence. Prior
to the installation of the pole camera, two controlled purchases
had occurred in and around the defendant's residence. The
officers had probable cause that pole camera surveillance would
lead to the observation of additional drug transactions (or
components thereof) occurring in the area around the apartment.
14 Accordingly, the pole camera surveillance was permissible under
Mora.
Judgments affirmed.
By the Court (Massing, Englander & D'Angelo, JJ.10),
Clerk
Entered: July 17, 2025.
10 The panelists are listed in order of seniority.