Commonwealth v. Fontaine

• Decision Date: 21 January 2014
• Docket Number: No. 12–P–1113.,12–P–1113.
• Parties: COMMONWEALTH v. Yves C. FONTAINE.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 699

3 N.E.3d 82

COMMONWEALTH

v.Yves C. FONTAINE.

No. 12–P–1113.

Appeals Court of Massachusetts, Suffolk.

Argued April 2, 2013.

Decided Jan. 21, 2014.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Dana Alan Curhan, Boston, (Joshua D. Werner, South Easton, with him) for the defendant.

Present: VUONO, CARHART, & AGNES, JJ.

AGNES, J.

This is an interlocutory appeal by the Commonwealth from the allowance of the defendant's motion to suppress a firearm and ammunition seized by officers of the Boston police department from a motor vehicle pursuant to a search warrant. The motion judge concluded that the affidavit submitted in support of the warrant failed to establish probable cause. For the reasons that follow, we reverse.

Background. The warrant in question was issued on the basis of an affidavit prepared by Boston police Detective James R. Sheehan. It informed the magistrateof the following facts.¹ On December 9, 2010, at approximately 8:30 p.m., two officers of the Boston police department stopped the defendant's vehicle after observing several traffic violations in the vicinity of Blue Hill Avenue and Wellington Hill Street in the Mattapan section of Boston. The defendant was driving the vehicle and Jason Bly was sitting in the front passenger seat. As the officers approached the vehicle, they saw the defendant lean towards the passenger side dashboard and return to an upright position. The defendant denied making this movement when the officers questioned him about it. Upon approaching the vehicle, the driver- and passenger-side windows of the car were open. The officers noticed an “overwhelming scent” of unburnt marijuana that was “pervasive” throughout the interior of the vehicle. The officers observed a small plastic bag in the center console, which contained a green vegetable substance the officers believed was marijuana. The packaging of this material was “consistent with narcotics packaged for distribution.” The officers removed both the defendant and passenger, Bly, from the vehicle.

Within a short time, several more members of the Boston police department, including the affiant Detective Sheehan, and a State police trooper arrived on the scene. It is significant that Detective Sheehan smelled the strong odor of marijuana still coming from inside the vehicle at this time even though the windows had been open. Based upon the officers' initial observations and the strong odor of unburnt marijuana, one of the officers conducted a search of the vehicle's front passenger compartment.² During this search, the officer recovered three separate bundles of United States currency, totaling $2,300 (in bundles of $1,000, $300, and $1,000) and wrapped in rubber bands in a manner the affiant knew to be consistent with the way that proceeds of drug transactions commonly were wrapped.

In his affidavit, Detective Sheehan informed the magistrate that he knew the passenger, Bly, had prior criminal convictions involving drugs, firearms, and violence. He also stated that he checked with the Massachusetts criminal history systems board and learned that both the defendant and Bly had prior convictions of possession of a controlled substance and possession of a controlled substance with intent to distribute. Detective Sheehan's affidavit also informed the magistrate that the investigating officers did not believe that either the defendant or Bly was under the influence of narcotics. The officers observed an absence of paraphernalia within the vehicle that could be used to ingest drugs. The affiant stated that, based upon his as well as the other officers' training and experience, the drugs and currency were packaged in a manner consistent with drug distribution. Detective Sheehan also reported that the officers also found “numerous loose components and what appeared to be excess wiring throughout the dashboard and front passenger compartment consistent with electronic hidden compartments, hereinafter referred to as ‘hides.’ ” A canine officer also responded with a ballistics dog; however, the dog did not alert to the presence of contraband within the vehicle.³

The affidavit also states that Detective Sheehan is a nine-year veteran of the Boston police department, with training and experience in processing crime scenes, collecting physical evidence, and writing and executing search warrants. Detective Sheehan informed the magistrate his assignments had included anti-crime patrols, the “Youth Violence Strike Force,” and the “Special Investigation Unit, Major Cases Division.” These assignments included the investigation of cases involving drug distribution and firearms. In addition to his police academy training, the affiant stated that he had specialized training from the United States Drug Enforcement Administration and had taken its narcotics investigation course. He also informed the magistrate that based on their training and experience, he and his fellow officers know that those involved in the illegal distribution of drugs use secret hides inside vehicles to prevent the police from discovering narcotics, money, and weapons during a search of the vehicle.⁴ Detective Sheehan's affidavit also states that he and the other officers believed that the overwhelming smell of unburnt marijuana indicated that there was a quantity of drugs in the vehicle larger than what was found in plain view.

Based upon these facts, Detective Sheehan applied for a warrant to search the vehicle in question for “[f]irearms,” “live ammunition,” “[m]arijuana and/or any controlled substance[s],” “paraphernalia used in the cutting, weighing, bagging and possession and/or distribution” of controlled substances, and “monies, books, ledgers, personal papers, cellular phones or other electronic devices denoting the sale of said controlled substance[s].” Based on this application, he obtained a search warrant for the defendant's vehicle as requested from the clerk-magistrate.⁵ Officers of the Boston police department executed the search warrant on December 10, 2010, and found, inside a hidden compartment within the vehicle, a firearm along with a magazine loaded with fifteen rounds of ammunition. A complaint issued, charging the defendant with firearm and ammunition possession offenses, but not with drug offenses. On the defendant's motion, a judge ordered the suppression of the firearm and ammunition, and we now consider the Commonwealth's interlocutory appeal from that order.⁶

Discussion. 1. Standard of review. When determining whether probable cause exists to issue a warrant, we consider the statements contained within the “four corners of the affidavit.” Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428, 657 N.E.2d 237 (1995). We read the affidavit as a whole, and refrain from dividing it into separate parts to be considered in isolation from each other. Commonwealth v. Blake, 413 Mass. 823, 827, 604 N.E.2d 1289 (1992). Our reading of an affidavit is guided by common sense. Commonwealth v. Thevenin, 82 Mass.App.Ct. 822, 825, 978 N.E.2d 1215 (2012). Mindful that the police are dealing with probabilities based on “the factual and practical considerations of everyday life,” the question is whether reasonable and prudent people would act on the basis of the information gathered by the police, not whether the information would satisfy legal technicians. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See Commonwealth v. Cast, 407 Mass. 891, 895–896, 556 N.E.2d 69 (1990). In reviewing affidavits in support of search warrants, we allow “considerable latitude” for the drawing of inferences. Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We have a responsibility, as a reviewing court, no less than the motion judge, to give “considerable deference to the magistrate's determination of probable cause.” Commonwealth v. Walker, 438 Mass. 246, 249, 780 N.E.2d 26 (2002). See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting”). “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Commonwealth v. Monterosso, 33 Mass.App.Ct. 765, 770, 604 N.E.2d 1338 (1992), quoting from United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. 741.

2. Probable cause. Probable cause to search exists when the facts stated by the affiant and the reasonable inferences that may be drawn from them provide a substantial basis for the issuing magistrate to conclude that the items to be seized are related to the criminal activity under investigation, and that it is reasonable to expect they will be found in the place to be searched at the time the warrant issues. Commonwealth v. Walker, 438 Mass. at 249, 780 N.E.2d 26. See Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207 (1983); Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). The defendant's argument reduces to this: the police having searched the passenger compartment after ordering the occupants out of the vehicle, the presence of a small quantity of marijuana in the center console, coupled with the “overwhelming odor” of unburnt marijuana coming from the vehicle, along with the other facts, does not add up to probable cause to believe that an additional amount of marijuana, drug paraphernalia, or a firearm would be located somewhere else in the vehicle, e.g., in a hidden compartment. As we discuss below, this argument overlooks several important considerations.

a. Sufficiency of the evidence to establish criminal activity. Under the Massachusetts marijuana decriminalization law, G.L. c. 94C, §§ 32L–32N, which took effect on December 4, 2008...