Com. v. Connolly

• Citation: 454 Mass. 808,913 N.E.2d 356
• Decision Date: 17 September 2009
• Docket Number: SJC-10355
• Parties: COMMONWEALTH v. Everett H. CONNOLLY.
• Court: United States State Supreme Judicial Court of Massachusetts

913 N.E.2d 356

454 Mass. 808

COMMONWEALTH v. Everett H. CONNOLLY.

SJC-10355

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 5, 2009.

Decided September 17, 2009.

Ian Stone for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Martha Coakley, Attorney General, James J. Arguin & Pamela L. Hunt, Assistant Attorneys General, & David F. Capeless, District Attorney for the Berkshire District & others.

Sharon N. Chaitin-Pollak, Committee for Public Counsel Services, & Beth L. Eisenberg, Committee for Public Counsel Services, for Committee for Public Counsel Services.

John Verdi, of the District of Columbia, & Marc Rotenberg, for Electronic Privacy Information Center.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

A Superior Court jury convicted the defendant of trafficking in cocaine in violation of G.L. c. 94C, § 32E (b) (3), and distribution of cocaine in violation of G.L. c. 94C, § 32A (c). Much of the evidence at trial was obtained as the result of a warrant that was issued to search the defendant's minivan.¹ The affidavit attached to the application for the warrant contained information obtained from informants, from police investigation, and from a global positioning system (GPS) device. The GPS device had been installed in the defendant's minivan pursuant to a warrant previously issued.²

On appeal,³ the defendant claims that the judge erred in denying his motion to suppress evidence found in his minivan because the affidavit supporting the application for a warrant to search that vehicle did not contain evidence that would support a finding of probable cause. He argues further that he should receive a new trial because a warrant is required for the use of a GPS device, and, while a warrant in fact issued in this case, the police obtained data from the GPS device after the warrant had expired, thereafter using that data to obtain the other search warrant as well as to locate his minivan in order to stop and search it. In addition to his arguments with respect to the search warrant, the defendant maintains that two defects in the trial proceedings (the failure to disclose the identity of a confidential informant and a witness's comment on the defendant's invocation of his right to remain silent) require a new trial. He asserts that his counsel's allegedly inadequate responses to these trial errors also require a new trial. Finally, the defendant claims that his right to confrontation was denied by the introduction at trial of the certificate of analysis of a chemist whom he had no opportunity to cross-examine. See Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).⁴

We conclude that there was probable cause to issue the search warrant for the minivan; the use of a GPS tracking device requires a warrant for purposes of art. 14 of the Massachusetts Declaration of Rights; the installation and use of the GPS tracking device in this case was a seizure; and the GPS tracking warrant had not expired. We determine further that any deficiencies at trial were adequately cured by the judge's instructions; thus, there was no ineffective assistance of counsel. We conclude that any denial of the right to confrontation was harmless beyond a reasonable doubt. Accordingly, we affirm the convictions and the denial of the motion for a new trial.

1. Background. a. Facts and procedural history. We summarize the facts that the jury could have found from the evidence at trial, supplemented by undisputed facts in the record, and reserve some details for later discussion. State and local police investigated the defendant, a suspected drug dealer, for more than one year. The investigation included surveillance of the defendant, controlled drug purchases by multiple confidential informants, and observation by police officers of the defendant engaged in numerous apparent narcotics transactions using his minivan. Toward the end of the surveillance period, on August 24 and 25, 2004, Officer Jennifer Margeson, a reserve officer with the Orleans police department, working as an undercover officer with the Cape and Islands drug task force, made additional controlled purchases of "crack" cocaine from the defendant. Based on the lengthy investigation, a State police trooper submitted a search warrant application to place a GPS monitoring device on the defendant's minivan for fifteen days. The warrant was issued on August 30, 2004, and on September 7, 2004, an "addendum" was filed with the court stating that the GPS device had been installed in the defendant's minivan on August 31, 2004, monitoring was ongoing, and a "full" return would be made by the end of the fifteen-day period.⁵ Such a return was made on September 14, 2004, within the fifteen-day period.

On September 8, 2004, police also obtained an arrest warrant for the defendant and a search warrant to search his minivan and its occupants. Information obtained from the GPS device was included in the affidavit for the search warrant. On September 9, 2004, with the use of data obtained from the GPS device, a State trooper observed the defendant driving the minivan on Route 6 on Cape Cod, arrested him, and drove his minivan to the Harwich police station, where it was searched by a drug detection canine. A large ball of crack cocaine, wrapped in electrical tape and later determined to weigh 124.31 grams, was found wedged under the dashboard. The glove compartment of the minivan contained a number of documents in the defendant's name. Police also found a substantial amount of cash in the defendant's apartment.

b. GPS tracking devices. According to the affidavit in support of the application for the GPS warrant, a GPS tracking system allows police to monitor and record the location of a vehicle without the owner's knowledge. A GPS device is capable of operating twenty-four hours per day with no human intervention. The tracking system consists of three components: a receiver on the target vehicle that calculates the vehicle's location through the use of satellites; a cellular telephone or other technology that transmits the vehicle's position; and a computer monitoring device that receives and stores location information and uses mapping software to display the vehicle's location. Since the location data is stored in computer files, it may be kept indefinitely, and new information based on the data obtained regarding a vehicle's past locations may be generated at any time.⁶

GPS devices are powered by one of two methods. A GPS device containing its own internal batteries may be attached easily to the exterior of a vehicle, but the batteries in this type of device require replacement. Alternatively, as with the device at issue here, a GPS device may be installed in the engine compartment of a vehicle and attached to the vehicle's power source (battery). Although this type of device may take more than one hour to install and test, it runs on the vehicle's power, and thus can operate indefinitely without battery replacement. See United States v. Garcia, 474 F.3d 994, 995-996 (7th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 291, 169 L.Ed.2d 140 (2007); United States v. Berry, 300 F.Supp.2d 366, 367-368 (D.Md.2004); People v. Weaver, 12 N.Y.3d 433, 436, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009).

2. Discussion. a. Motion to suppress. (i) Probable cause to search the minivan. The defendant maintains that the affidavit did not provide evidence sufficient to establish probable cause for issuance of the search warrant because there was an inadequate showing that drugs would be found in his minivan. He contends alternatively that, to the extent that there was a showing of probable cause at all, it was probable cause only to believe that there would be drugs in the vehicle when the defendant was returning from a trip to his New York supplier, and the affidavit did not demonstrate that he had just returned from New York. The defendant argues further that only two confidential informants were known to be credible and reliable; the facts in the supporting affidavit were stale, because the warrant issued on September 8, 2004, while the last controlled purchases by confidential informants were made in late June, 2004, and there was no indication of any criminal activity after Margeson's (the undercover officer's) second controlled purchase on August 25, 2004; and the failure to refer in the warrant application to a specific confidential informant whose existence was not disclosed until mid-trial rendered the statements in the affidavit unreliable. We consider each of these arguments.

Review of the sufficiency of the showing to justify issuance of a search warrant "begins and ends with the four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428, 657 N.E.2d 237 (1995). In order to establish probable cause to issue a search warrant, the affidavit must "contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched." Id. at 300, 798 N.E.2d 275, quoting Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980). In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion; inferences drawn from the affidavit need only be reasonable, not required. Commonwealth v. Kaupp, 453 Mass. 102, 110-111, 899 N.E.2d 809 (2009).

Where the affidavit relies on information from confidential informants, it must provide "some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test)" and "some...