Commonwealth v. Clagon

• Decision Date: 08 May 2013
• Docket Number: SJC–11283.
• Citation: 465 Mass. 1004,987 N.E.2d 554
• Parties: COMMONWEALTH v. Reginald CLAGON (and six companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 1004

987 N.E.2d 554

COMMONWEALTH

v.Reginald CLAGON (and six companion cases ¹).

SJC–11283.

Supreme Judicial Court of Massachusetts.

May 8, 2013.

Teresa K. Anderson, Assistant District Attorney (Lauren Greene, Assistant District Attorney, with her), for the Commonwealth.

John Fennel, Committee for Public Counsel Services, for Reginald Clagon.

RESCRIPT.

The Commonwealth appeals from an order of a judge in the Superior Court allowing Reginald Clagon's and Anthony Gerald's motions to suppress evidence obtained pursuant to a search warrant.² The Appeals Court affirmed the order. Commonwealth v. Clagon, 81 Mass.App.Ct. 1141, 968 N.E.2d 941 (2012). We granted further appellate review. Commonwealth v. Clagon, 463 Mass. 1105, 973 N.E.2d 1269 (2012). At issue is whether the affidavit submitted in support of the search warrant established the required nexus between the alleged criminal activity and the premises to be searched. We conclude that the affidavit in this case did so, and we reverse the allowance of the motions to suppress.

Standard of review. “[O]ur inquiry as to the sufficiency of the search warrant application always 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). Probable cause to believe that a suspect has committed a crime is not sufficient to justify a search of the suspect's home; rather, the affidavit and reasonable inferences drawn therefrom “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Escalera, 462 Mass. 636, 642, 970 N.E.2d 319 (2012), quoting Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). Because “[i]n dealing with probable cause ... we deal with probabilities,” Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), the affidavit “should be ‘read as a whole, not parsed, severed, and subjected to hypercritical analysis.’ ” Commonwealth v. Anthony, 451 Mass. 59, 69, 883 N.E.2d 918 (2008), quoting Commonwealth v. Donahue, supra. “A reviewing court gives considerable deference to the magistrate's determination of probable cause, see Commonwealth v. Upton, 394 Mass. 363, 377, 476 N.E.2d 548 (1985), and even ‘the resolution of doubtful or marginal cases ... should be largely determined by the preference to be accorded to warrants.’ ” Commonwealth v. Anthony, supra, quoting Commonwealth v. Germain, 396 Mass. 413, 418, 486 N.E.2d 693 (1985).

Facts. Here, the search warrant was issued based on an affidavit of Patrick Byrne, a Boston police officer with experiencein drug investigations and arrests. He attested that he was familiar with drug distribution tactics, such as a delivery service whereby a distributor conceals a supply of controlled substances at his residence and conducts sales to individual buyers at other locations. Turning to the specifics of this case, a confidential informant ³ (identified in the affidavit as “Z”) informed Byrne that Gerald was selling heroin in the Forest Hills neighborhood of the Jamaica Plain section of Boston and that Z had purchased heroin from Gerald in the past. Byrne obtained information and a photograph from the registry of motor vehicles, and Z identified the photograph as being that of Gerald. Byrne's affidavit also stated that Gerald did business from a certain address in Jamaica Plain (the premises), although he did not state how and when he first obtained this information.⁴ The premises are described as a “two (2) story single family attached town house.”

Under the supervision of Boston police officers, Z thereafter made three controlled purchases from Gerald in the thirty days before the warrant was issued. In the first, after the officers ensured that Z possessed no money or drugs, Z placed a telephone call to a certain number and was instructed to go to a specific location.⁵ Z and the officers went directly to the location, where Z met Gerald and, using money provided by the police, purchased from him a quantity of a tan powder that apparently was heroin.⁶ Police officers kept Gerald under surveillance while he went to the premises. ⁷ The other two controlled purchases proceeded in much the same way, except that, shortly after Z's telephone call, officers observed Gerald leaving the premises and going directly to the meeting location without making any other stops. Each time, Z purchased a quantity of what appeared to be heroin with money supplied by the police. The affidavit also states that a vehicle registered to Gerald's father was seen parked in front of the premises, that Gerald's father was seen exiting the vehicle and entering the premises using a key, and that Gerald's father has an extensive criminal record involving drug offenses. Based on this information, a warrant was issued to search the premises for heroin and other evidence of its distribution, including paraphernalia, money,and records of drug sales or transactions, as well as evidence showing control or occupancy of the premises.

Analysis. Reading the affidavit as a whole and drawing all reasonable inferences therefrom, we conclude that it establishes probable cause to believe that evidence connected to the alleged drug offenses would be found at the premises. First, the affidavit suggests that Gerald was an established drug dealer with an ongoing, regular trade. Z essentially described him as a drug dealer, and this description was corroborated by the controlled purchases in which Gerald was able to produce the heroin a short time after receiving Z's telephone call, suggesting that he had a ready supply of heroin and did not need to obtain it from a third party. Second, the affidavit establishes Gerald's connection to the premises. He was seen on two occasions leaving the premises, going directly to a prearranged location, and delivering the substance that the officer believed to be heroin. See Commonwealth v. Escalera, supra at 643, 970 N.E.2d 319 (“Observations by police of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence”). On a third occasion, he was seen going to the premises after a controlled purchase. Although “the suspect's location immediately prior to the sale is of greater significance to the nexus determination than are his activities after the sale,” id. at 645, 970 N.E.2d 319, his return to the premises, viewed in the context of the totality of the circumstances set forth in the affidavit, is also some evidence that Gerald was using the premises as a base of operation. That Gerald's father was able to come and go from the premises using a key also indicates Gerald's connection to the premises. Third, the fact that Gerald twice, while under police surveillance, left the premises and went directly to the location of a controlled purchase...