Commonwealth v. Murphy
| Decision Date | 19 June 2019 |
| Docket Number | No. 18-P-959,18-P-959 |
| Citation | 127 N.E.3d 282,95 Mass.App.Ct. 504 |
| Parties | COMMONWEALTH v. Sean D. MURPHY. |
| Court | Appeals Court of Massachusetts |
Mary E. Lee, Assistant District Attorney, for the Commonwealth.
Sean D. Murphy, pro se (Susan E. Taylor, New Bedford, also present) for the defendant.
Present: Green, C.J., Shin, & Englander, JJ.
In this case we consider the sufficiency of an application for a warrant to search the defendant's properties and business records for evidence of criminal activity. In 2009 State and local police executed search warrants at the defendant's home and at his place of business, both in Lynn. The defendant has a lengthy criminal history for burglaries, and the police were searching in particular for evidence related to a June 2008 burglary of a jewelry manufacturer in Attleboro, during which millions of dollars in jewelry and precious metals were stolen. The police ultimately seized a variety of items, including stolen jewelry and records believed to be evidence of the defendant's criminal activity. In October 2017 a judge of the Superior Court suppressed the seized items, reasoning that the warrant affidavit was insufficient to establish probable cause to search either property.1 The Commonwealth appeals, and we now reverse the suppression of the evidence seized from the defendant's home and business.2
Background. The facts are taken from the warrant affidavit at issue, submitted by a State police lieutenant on January 22, 2009. Our review is limited to the four corners of the affidavit, including its attached exhibits. See Commonwealth v. O'Day, 440 Mass. 296, 298, 798 N.E.2d 275 (2003).
On June 8, 2008, burglars broke into E.A. Dion, Inc. (E.A. Dion), in Attleboro, overnight, and made away with $ 2.5 million in jewelry and precious metals. The burglars cut a hole in the roof, disabled the primary alarm system, and used a sophisticated "jammer" to prevent cellular communication by a back-up system. Somehow, the burglars managed to remove a safe weighing over 1,000 pounds from the building.
The police investigators eventually trained their attention on the defendant, and the warrant affidavit described the defendant's lengthy criminal history, including numerous burglaries, beginning in the 1980s and continuing into the 2000s. One notable item in the criminal history is the defendant's conviction of charges related to a 2004 burglary of a Costco warehouse in Pennsylvania. During that 2004 burglary the burglars gained entrance through the roof and used a sophisticated jammer to defeat the back-up cellular alarm system. The jammer was left at the scene. The burglars took jewelry and prescription medications, but the burglars (including the defendant) were stopped and arrested later that evening while driving away. The burglars wore black clothing and carried many burglary tools, including wire cutters, wrenches, and pry tools.
In the fall of 2006 the defendant sent a letter to the president of Costco, offering to provide "security consulting" services to the company. The defendant stated that he was a member of an "elite team of experts" that had "successfully burglarized a number of COSTCO Wholesale Warehouses." The defendant signed his name to the letter on behalf of "Angel One Security Consulting," and listed its address as 407 Walnut Street in Lynn. That address was the defendant's home address, and one of the two properties subject to the January 2009 search warrants at issue.
The lieutenant's affidavit covered nine pages, and incorporated hundreds of pages of attachments. The affidavit contains strong evidence that the defendant was engaged in a criminal enterprise that had been ongoing for several years, up until the time of the affidavit. For example, in November of 2006, some twenty months before the E.A. Dion burglary, burglars robbed AmerisourceBergen Corporation (AmerisourceBergen) in Mansfield and stole 1.8 million prescription pills. The telephone lines were cut, and the thieves entered through a hole in the roof. Several facts in the warrant affidavit implicated the defendant in the AmerisourceBergen burglary, including evidence that he was involved in distribution of the stolen pills. Thereafter, in October of 2007, nine months before the E.A. Dion burglary, Attleboro police found burglary equipment, including tools, ropes, black clothing, and a sophisticated cell phone jammer, in the woods next to an Attleboro business known as Jostens Jewelry Company (Jostens). The abandoned equipment appeared to have been the result of a failed burglary effort, and once again, a cell phone jammer was left behind.
Perhaps the most important information in the affidavit, however, came from a police investigator's summary of a January 15, 2009 interview of one Laura Cooper,3 which occurred one week before the warrants at issue were obtained. Cooper lived with the defendant at 407 Walnut Street from January of 2008 until October of 2008. Cooper told the police that the defendant had explained to her, in detail, how he conducted his burglaries. The defendant operated a moving company, North Shore Movers, which had a warehouse at 725R Summer Street in Lynn. The defendant brought Cooper to the warehouse in approximately March of 2008 and showed her where he stored his burglary tools, including climbing ropes, black "ninja suits," and a cell phone jammer. The defendant explained that he used a "crew" of approximately five men, that they would disable the alarm systems and enter from the roof, and that he generally used two persons on the crew who worked at his moving company, one of whom was named "Jose." The defendant would research his targets in advance, in part using a computer located in the warehouse. The defendant also explained that he bought the jammer from overseas, that it was "incredibly expensive," and that it was used to disable backup alarm systems. Cooper sketched the jammer for investigating officers, and sketches of both the jammer and the warehouse were attached to the interview summary.
Cooper also related that in the summer of 2008 the defendant told her that he was going away "to do a burglary."4 When the defendant returned to 407 Walnut Street a few days later he brought jewelry, gold bars, and approximately twelve Super Bowl rings, which he laid out on the bed. The jewelry was split in half. The defendant took one-half to give to his accomplices. Cooper and the defendant's girlfriend took the other one-half to the home of the girlfriend's grandmother. The defendant gave Cooper three items of jewelry, which he admonished her not to pawn as they could be easily linked to the burglary.
The police sought the search warrants at issue on January 22, 2009, and executed them the following morning.5 The warrant for 725R Summer Street (warehouse) authorized the seizure of any burglary equipment that might be located there, as well as "employee person[n]el" and other "business records" related to the defendant's companies, North Shore Movers and Angel One Security. The warrant for 407 Walnut Street authorized only the seizure of business records,6 and did not address burglary tools. During the initial searches the officers observed several additional, potentially incriminating items that they did not seize.7 On January 23, the lieutenant supplemented his affidavit and applied for additional warrants to seize the items the officers observed, which warrants were issued and executed.
The defendant was indicted on May 1, 2009, on two counts of possession of a burglarious instrument, four counts of receiving stolen property, and one count each of attempt to commit a crime, and breaking and entering in the night time with the intent to commit a felony. Between 2009 and 2017 the defendant filed dozens of pretrial motions, but as of 2017 the case had not gone to trial and the defendant remained in custody.8 In June of 2017, the defendant filed two motions seeking to suppress the evidence seized during the January 23, 2009, searches. One motion argued that the affidavit did not establish probable cause to justify the searches; the second motion, which was cast as a motion to excise portions of the warrant affidavit, sought suppression because the affidavit allegedly contained facts that the police affiant knew to be inaccurate or unreliable (similar to a motion under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978] ).
The judge held a hearing on the motions, at which both parties appeared. The Commonwealth did not file a written opposition, but the Commonwealth did argue orally, contending that both motions should be denied. In October of 2017 the motion judge ordered all of the seized evidence suppressed, finding that the warrants for the defendant's home and business were not supported by probable cause. The judge reasoned that although the affidavit contained "abundant evidence" that the defendant had committed numerous crimes, "[t]he affidavit contains no facts at all" indicating that evidence of those crimes would be found in business records at the defendant's home or place of business. The judge also concluded that the affidavit failed to demonstrate that the defendant's burglary tools could reasonably be expected to be found in the warehouse.
Discussion. 1. The probable cause standard. The question is whether the warrant affidavit contained sufficient information to establish probable cause to search the defendant's home and place of business in January of 2009, as required by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. "The information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there." Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521, 848 N.E.2d 1253 (2006...
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