Com. v. Ilges

• Citation: 834 N.E.2d 276,64 Mass. App. Ct. 503
• Decision Date: 14 September 2005
• Docket Number: No. 04-P-212.,04-P-212.
• Parties: COMMONWEALTH v. Kevin ILGES.
• Court: United States State Supreme Judicial Court of Massachusetts

834 N.E.2d 276

64 Mass. App. Ct. 503

COMMONWEALTH v. Kevin ILGES.

No. 04-P-212.

Appeals Court of Massachusetts, Essex.

Argued January 5, 2005.

Decided September 14, 2005.

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James E. McCall, Boston, for the defendant.

James A. Janda, Assistant District Attorney, for the Commonwealth.

Present: LENK, COWIN, & GRAHAM, JJ.

COWIN, J.

The defendant, Kevin M. Ilges, was convicted by a jury of trafficking in 100 grams or more of cocaine, G.L. c. 94C, § 32E; trafficking in cocaine within 1,000 feet of a school zone, G.L. c. 94C, § 32J; and unlawful possession of hydrocodone, a class C controlled substance, G.L. c. 94C, § 34. Prior to trial, he filed three motions seeking suppression of statements and other evidence obtained by the police pursuant to what he alleges is a search warrant issued without probable cause, an unlawful stop and Miranda violations. The motions were denied in separate decisions by two Superior Court judges, and the defendant complains that two of the denials were erroneously entered.¹ We conclude that the warrant to search the defendant's home was based on sufficient interlocking details in confidential informant statements, supplemented by police corroboration, to establish probable cause. We determine also that the traffic stop and the seizure of evidence at that time were permissible, although we do so on grounds other than those chosen by the motion judge.

1. Material facts and proceedings. The facts that are material to the issues on appeal are largely, if not wholly, uncontested. On August 20, 1998, Detective James Robertson, a member of the Gloucester police department drug task force, applied for a warrant to search the defendant's basement apartment at 33 Green Street, Gloucester. In support of the application, the detective submitted a single-spaced, four and one-half page affidavit setting out information he had obtained from two confidential informants, CRI# 1 and CRI# 2. The affidavit set forth that the detective had been in contact with CRI# 1 within the previous two weeks. CRI# 1 had, in an earlier investigation, supplied information and conducted a "controlled purchase of controlled substances" that was witnessed by Federal and State authorities. CRI# 1 told the detective that presently, and "for a lengthy period of time," CRI# 1 had continued an "association" with the defendant and the defendant's girlfriend, Rebecca Seigas,² that involved the "dealing [of] drugs illegally." CRI# 1 also reported having visited the defendant's apartment on "numerous occasions" in "the recent past" for the purpose of purchasing cocaine and pharmaceutical substances.

Within forty-eight hours of the application, Detective Robertson had also been in contact with CRI# 2. CRI# 2 had no previous noteworthy dealings with the police, and was "independent and unknowing" of CRI# 1. CRI# 2 reported having conducted drug transactions with the defendant (and having observed others) on "numerous occasions" within the past month. CRI# 2 also reported having visited the defendant's apartment within the previous forty-eight hours and, during that time, observed one and one-quarter pounds of marijuana at that location.

The statements of CRI# 1 and CRI# 2, as reported in Detective Robertson's affidavit, overlapped in a number of respects. Each informant stated that the defendant lived in an apartment on the ground level of 33 Green Street in Gloucester; the defendant's father lived on the upper level; primary access to the defendant's apartment was through the second door "up" on the left side of the house; the defendant occupied the apartment with Seigas; the defendant and Seigas sold marijuana, cocaine and Percocet (a pharmaceutical class B substance) from the apartment; the defendant stored drugs and drug money at a "safe house" on Webster Street in Gloucester; the defendant was unemployed but was nonetheless spending large sums of cash derived from drug sales on purchases, particularly motor vehicles (CRI# 1 reported that the expenditures involved numerous "toys" including motorcycles and all-terrain vehicles); and the defendant said that he had observed police in the vicinity of his apartment and was concerned about possible surveillance.

Detective Robertson stated also that the police had corroborated information provided by CRI# 1 and CRI# 2. He set forth in his affidavit that both the defendant and Seigas were known to police, having been arrested in September, 1996, on drug charges following the execution of a search warrant. That case was continued until June 5, 1998, following a finding of sufficient facts by a District Court judge. Additionally, Registry of Motor Vehicles records showed that the defendant lived at 33 Green Street and owned several vehicles that were not subject to liens, including a green 1990 Ford MLX convertible, a gray 1986 Chevy Blazer, and a red Suzuki motorcycle.

Police also corroborated the informants' information concerning the Webster Street address, which they described with varying specificity as the defendant's "safe house." Detective Robertson visited the location with CRI# 2, who pointed out the apartment used by the defendant, and identified a vehicle in the driveway bearing registration number 4125-EV as that of Bryan Nelson. A check of records showed that the car did in fact belong to Nelson. A telephone directory showed that Nelson lived at that address. A review of probation records showed that Nelson had been prosecuted in 1992 for illegal possession of a class D controlled substance, with the charges continued without a finding. In addition, the defendant's vehicle was seen parked outside the Webster Street "safe house" during periodic surveillance.

The application was granted on the day it was filed, and a warrant to search the defendant's apartment issued.³ Detective Robertson and other officers prepared to execute the warrant that afternoon. But CRI# 1 had also reported that the defendant planned to conduct a drug transaction at a barroom that evening, although that information was reflected only obliquely in Detective Robertson's affidavit.⁴ CRI# 1 predicted that the defendant would leave his home with a quantity of drugs on his person sometime between 5:00 P.M. and 7:00 P.M. Thus, at approximately 4:30 P.M., the police began surveillance of the premises, and, as predicted, the defendant, at approximately 5:30 P.M., emerged from his driveway, riding a red motorcycle.

Officer Kenneth Ryan stopped the defendant approximately one-quarter mile away from the apartment. Officer Ryan informed the defendant that the police intended to search his apartment pursuant to a warrant, and then administered the Miranda warnings. The officer also pat frisked the defendant and discovered a large bulge in his pocket. He removed and "temporarily seized" approximately $3,400 in cash. The officers told the defendant that he was not under arrest but asked if he would accompany them to the apartment, telling him that his presence would permit a more focused and efficient search. The defendant agreed and was placed in a police cruiser to be driven back to his home. On the way, after receiving Miranda warnings again, the defendant stated that he had Vicodin pills in a safe at the apartment; he had been selling drugs for good money for years; and that he used the money for expensive purchases, including cars.

On arriving at the apartment, the officers exhibited the search warrant to the defendant and Seigas. They led officers to a safe that the defendant opened to reveal approximately $9,400 in cash and thirty Vicodin pills.⁵ Officers also discovered, hidden beneath the headboard of a waterbed, a canister containing plastic bags and 106 grams of cocaine. A scale, showing some "residue," and a quantity of a chemical agent used to prepare cocaine for retail sale were also seized.

The defendant was arrested, and the police administered Miranda warnings twice more. The defendant admitted that he had been dealing drugs for years, that the money seized was from drug sales, and that he had been using proceeds from drug sales to make purchases such as a commercial tanning bed, a Jacuzzi, a large television, and several vehicles. The defendant also said that his father and girlfriend desired that he stop selling drugs.

The defendant was indicted and subsequently filed three successive motions to suppress. He moved first to suppress his admissions because police purportedly failed to administer the Miranda warnings. Shortly thereafter, he moved to suppress the items seized in the search of his apartment on the ground that the search warrant was not based on probable cause. Following an evidentiary hearing, the motions were denied. About three months later, the defendant filed his third motion to suppress, this time asserting that the stop when he left his residence on the motorcycle was impermissible, and that consequently all statements and other evidence obtained as a result should be excluded. A different Superior Court judge conducted an evidentiary hearing, and thereafter denied the motion.⁶ The defendant was subsequently convicted, and this appeal followed.

2. The affidavit. The defendant argues first that the application for the search warrant did not contain sufficient information to establish that the confidential police informants, referenced as CRI# 1 and CRI# 2, were reliable and possessed adequate bases of knowledge. See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)(Aguilar); Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)(Spinelli); Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985) (Upton II). In passing upon the question, we give "great deference to the magistrate's determination of probable cause," Commonwealth v. Upton, 390 Mass. 562, 569, 458 N.E.2d 717 (1983), rev'd, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (Upton I)...