Commonwealth v. Defrancesco

• Decision Date: 12 February 2021
• Docket Number: No. 20-P-162,20-P-162
• Citation: 99 Mass.App.Ct. 208,164 N.E.3d 221
• Parties: COMMONWEALTH v. Djoy DEFRANCESCO.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 208

164 N.E.3d 221

COMMONWEALTH

v.Djoy DEFRANCESCO.

No. 20-P-162

Appeals Court of Massachusetts, Plymouth..

Argued November 6, 2020.

Decided February 12, 2021.

Jessica L. Kenny, Assistant District Attorney, for the Commonwealth.

Luke Rosseel, Boston, for the defendant.

Present: Massing, Kinder, & Grant, JJ.

GRANT, J.

Over the course of about a month, the defendant drove three different cars rented in someone else's name to locations where he sold cocaine. Pursuant to a search warrant for the third car, a Nissan Rogue, police seized illegal drugs and firearms.¹ A Superior Court judge allowed the defendant's motion to suppress that evidence, ruling that the search warrant affidavit failed to establish the requisite nexus between the items sought and the Rogue. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to prosecute an interlocutory appeal, and the case was transferred to this court. We conclude that the affidavit did demonstrate that nexus, and we reverse the order allowing the motion to suppress.

Background. The affidavit supporting the search warrant application, sworn to by Brockton police Detective Timothy R. Donahue, provided the following information. Donahue has extensive experience in controlled substance investigations.² During August 2017, he spoke to a confidential informant (CI), who said that a light-skinned Hispanic or Cape Verdean man called "J" was selling "crack" cocaine and using a newer model dark gray Ford Fusion to deliver it. The CI described "J" and told Donahue that the CI arranged purchases by calling "J" on a certain telephone number.

On or about August 8, 2017, the CI made a controlled buy of cocaine from "J." When the CI telephoned "J" and arranged to buy cocaine, "J" directed the CI to meet at a location. Before the buy, Donahue determined that the CI possessed no narcotics or money, and Donahue provided the CI with money. With Donahue and other officers maintaining surveillance, the CI went to the meeting location. A dark gray 2017 Ford Fusion arrived, and police saw the CI meet with an occupant of the Fusion for a short period of time. Afterward, the CI met with Donahue and gave him cocaine that the CI said had been purchased from "J" with the money provided by the police. From the registry of motor vehicles, police learned that the Fusion was registered to a rental car company, EAN Holdings LLC (EAN Holdings); investigation revealed that it had been rented to Joseph Dmitruk.

Two days later, the Fusion was subject to a traffic stop by another officer. As that officer approached, the driver and passenger swapped positions, so that the driver was in the front passenger seat. The incident report identified the initial operator as the defendant, Djoy Defrancesco. Brockton police department records revealed that the defendant lived at 9 Falmouth Avenue, apartment 1, Brockton. That address had been listed for the defendant in connection with his arrest by the State Police more than two years before for possession of a class A substance with intent to distribute. Police later showed two photographs of the defendant to the CI, who identified them both as depicting "J."

On August 14, 2017, Donahue learned that the Fusion had been returned to EAN Holdings, and that Dmitruk had rented a gray 2017 Nissan Altima. Two days later, Donahue saw the Altima parked across the street from 9 Falmouth Avenue, and Donahue then saw the defendant come out of that house and get into the driver's seat.

On August 22, 2017, Donahue saw the defendant leave 9 Falmouth Avenue, get behind the wheel of the Altima, back it into the driveway, and go back into the house. About twenty-five minutes later, the Altima left the driveway (the affidavit does not describe the driver) and drove to a playground less than a mile away. At the playground, another officer saw an unidentified man get into the Altima's front passenger seat for a moment and then leave in his own vehicle. The Altima drove away at a high rate of speed. Donahue formed the opinion that the occupant of the Altima "had engaged in a quick narcotics transaction" with the unidentified man.

On September 7, 2017, Donahue saw the third rental car, a white 2017 Nissan Rogue, parked across the street from 9 Falmouth Avenue. It too was registered to EAN Holdings and rented to Dmitruk.

The day after the Rogue appeared, the CI made a second controlled buy of cocaine from the defendant, using the same procedure. After the CI negotiated the transaction by telephone, police saw the defendant come out of 9 Falmouth Avenue, get into the Rogue, which was parked across the street, and then drive to the meeting location. There, the CI had a brief encounter with the defendant. Afterward, the CI gave Donahue the cocaine that the CI had bought from the defendant using the money police had provided. Meanwhile, police saw the Rogue return to 9 Falmouth Avenue, where the defendant got out and entered the house.

Two days later, the CI made a third controlled buy of cocaine from the defendant, using the same procedure. After the CI had negotiated the purchase by telephone, police saw the defendant come out of 9 Falmouth Avenue and drive the Rogue to the meeting location. Police saw the CI and the defendant meet briefly. Afterward, the CI gave Donahue a quantity of cocaine purchased from the defendant with the cash provided by police.

Based on the facts included in the affidavit, Donahue opined that the defendant was "storing" illegal narcotics such as cocaine in his apartment at 9 Falmouth Avenue, "and or within" the Rogue. On September 12, 2017, two days after the last controlled buy, a magistrate issued a warrant authorizing police to search the Rogue for items including controlled substances, records relating to their distribution, and money generated from the sale of controlled substances.³ Executing the search warrant on September 14, 2107, police seized from the Rogue plastic bags containing fentanyl and cocaine, a Glock gun case containing four empty ammunition magazines and a loader, and documents bearing the defendant's name.

Discussion. On the defendant's motion to suppress, the judge concluded that the search warrant for the Rogue was not supported by probable cause and should not have issued because its supporting affidavit did not establish a nexus between the Rogue and the cocaine and related evidence. We review the search warrant application de novo. See Commonwealth v. Gosselin, 486 Mass. 256, 265, 158 N.E.3d 8 (2020). That review "begins and ends with the four corners of the affidavit" (quotation and citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003). See Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509, 127 N.E.3d 282 (2019). The affidavit should be interpreted "in a commonsense fashion" and "read as a whole," rather than "parsed, severed, and subjected to hypercritical analysis" (quotation and citation omitted). Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 481, 156 N.E.3d 256 (2020). In this light, the magistrate properly concluded that Donahue's affidavit set forth a timely nexus between the defendant's drug activity and the Rogue, such that probable cause existed to believe that evidence of his cocaine dealing would be found there.

First, the search warrant affidavit demonstrated that the defendant was engaged in the ongoing business of selling narcotics illegally.

The CI told Donahue that the defendant was selling cocaine, which the CI had bought from him in the past.⁴ The CI then engaged in three controlled buys in which the CI bought cocaine from the defendant, the last two of which occurred within a week before the execution of the search warrant. That information established probable cause that the defendant was selling cocaine and had access to a supply for sale.⁵ See Commonwealth v. Escalera, 462 Mass. 636, 646, 970 N.E.2d 319 (2012).

Second, the affidavit established that the defendant was using the Rogue in connection with his drug business. During the second and third controlled buys, police saw him drive the Rogue to a location where he met the CI. The judge considered the affidavit lacking because it did not explicitly state that either of those controlled buys "occurred inside the Rogue." But the affidavit averred that, on each of those occasions, police saw the CI "meet for a brief moment" with the "operator" of the Rogue. From the word "operator" and the brevity of the interactions, the magistrate could infer that the controlled buys took place inside the Rogue. That inference was bolstered by the averments in the affidavit that, during the first controlled buy, the CI met with the defendant, an "occupant" who was "operating" the Fusion, and that during the August 22 interaction, an unidentified male got into "the front passenger seat" of the Altima "for a brief moment." Interpreted in a commonsense fashion, the affidavit provided the magistrate with probable cause to conclude that drug sales occurred inside each of the rental cars the defendant drove. Even if the affidavit left open the possibility that the defendant did not conduct transactions inside those cars, there was still probable cause to conclude that he used those cars, including the Rogue, to transport cocaine to the location of each sale to the CI. See Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 523-524 & n.17, 848 N.E.2d 1253 (2006). See also E.B. Cypher, Criminal Practice and Procedure § 6:2, at 613 n.7 (4th ed. 2014).

Finally, the search warrant affidavit established probable cause to believe that controlled substances and related evidence would be found in the Rogue and not, as the judge concluded, exclusively in the defendant's home. Probable cause does not require proof that it is more likely than not that evidence would be found in the Rogue; rather, it requires a quantum of proof from which the magistrate can conclude, applying common sense and reasonable inferences,...