Com. v. Smith

• Decision Date: 07 February 2003
• Docket Number: No. 00-P-1610.,00-P-1610.
• Citation: 57 Mass. App. Ct. 907,783 N.E.2d 463
• Parties: COMMONWEALTH v. Henry Levon SMITH.
• Court: Appeals Court of Massachusetts

783 N.E.2d 463

57 Mass. App. Ct. 907

COMMONWEALTH v. Henry Levon SMITH.

No. 00-P-1610.

Appeals Court of Massachusetts.

February 7, 2003.

Stephen B. Hrones, Boston, for the defendant.

J. Thomas Kirkman, Assistant District Attorney, for the Commonwealth.

RESCRIPT.

After a jury-waived Superior Court trial, the defendant, Henry Levon Smith, was found guilty of trafficking in cocaine (indictment no. 48068), distribution of marijuana (no. 48069), possession of marijuana with intent to distribute (no. 48070), and assault (no. 48072). The case comes before us as a result of Smith's unsuccessful pretrial challenge, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to the validity of a search warrant for his home. Although he agrees that the motion judge (who also sat as trial judge) properly excised a factual misrepresentation from the search warrant affidavit,¹ he asserts that the judge erred when he concluded that what remained in the affidavit was sufficient, standing alone, to supply probable cause to support the warrant. Consequently, Smith argues, his motion to suppress the fruits of the search (a gun, cocaine, marijuana, drug-related paraphernalia and cash) was wrongly denied. We conclude that the judge should have allowed the defendant's motion to suppress, as the evidence remaining in the affidavit after excision does not establish probable cause for the search.

Background. According to his affidavit in support of the search warrant request, Detective Russell Giammarco is a veteran member of the Barnstable police department who had been cooperating with the Cape Cod drug task force in an ongoing investigation of Smith's suspected drug activity since April, 1998. Detective Giammarco's sworn statement said the following about Smith: he is a black male; resides at 42 Short Way, West Yarmouth; operates a yellow Cadillac automobile with Massachusetts registration number 559YKG; was convicted for distribution and possession of cocaine in Florida in 1986 and 1988; and was "arraigned" in Massachusetts fifteen times, but never for drug-related offenses.

The redacted affidavit also describes three controlled buys of marijuana from Smith during several weeks leading up to his arrest, all at locations other than his residence. On the first occasion, during the week of July 5, 1998, the buy was executed with the aid of a confidential source, who was familiar with Smith and his vehicle, having purchased marijuana from him on previous, unspecified occasions. After this particular buy, Smith was observed driving his yellow Cadillac back to his home at 42 Short Way.

A Barnstable undercover officer conducted two subsequent drug purchases from the defendant. During the last of these, which took place during the week of July 19, 1998, Smith was observed driving from 42 Short Way directly to the parking lot where the buy took place.

Discussion. The legal requirements that pertain to applications for search warrants in drug cases such as the present one are well established and set forth in Commonwealth v. Chongarlides, 52 Mass.App.Ct. 366, 369-371, 754 N.E.2d 707 (2001). Here, it is sufficient to state that the affidavit supporting the search warrant request must demonstrate that there is probable cause to believe that drugs or related evidence will be found in the defendant's residence, the location to be searched. There must be "specific information in the affidavit which tie[s] the defendant's residence to illegal drug transactions, other than that he lived at those premises." Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 600, 571 N.E.2d 416 (1991) (no specific information in affidavit connecting defendant's residence to drug sales except observation of defendant departing from house and going to his place of business where controlled buy occurred).

The "fundamental flaw" in the affidavit before us is that it does not explain why there was probable cause to believe that drugs or related evidence would be found at 42 Short Way other than it being the residence of the defendant. See Commonwealth v. Chongarlides, 52 Mass.App.Ct. at 370, 754 N.E.2d 707. The confidential source cited in the affidavit does not indicate any familiarity with the defendant's residence other than to state that he "lives in the West Yarmouth area," nor does the source claim ever to have been inside 42 Short Way. Moreover, the source does not allege that Smith either conducted drug transactions from 42 Short Way or kept drugs or related items there. "Notably absent [was] reliable specific information from any quarter placing illegal drugs or drug transactions there in the past." Commonwealth v. Kaufman, 381 Mass. 301, 304, 408 N.E.2d 871 (1980).

The observations of the undercover officers also fail to bolster the affidavit. In essence, they relate that the defendant lived at 42 Short Way and that on one occasion he was seen driving from that location to a place where he...