Commonwealth v. Perkins
| Decision Date | 10 October 2017 |
| Docket Number | SJC-12256 |
| Citation | 478 Mass. 97,82 N.E.3d 1024 |
| Parties | COMMONWEALTH v. Mark PERKINS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Nicole M. Nixon, Assistant District Attorney (Graham G. Van Epps, Assistant District Attorney, also present) for the Commonwealth.
Robert F. Hennessy, Springfield, (John M. Thompson also present) for the defendant.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.1
A Suffolk County grand jury returned indictments charging the defendant with trafficking in cocaine over 200 grams, G.L.c. 94C, § 32E (b ) (4) ; possession of ammunition after three or more criminal convictions, G.L.c. 269, §§ 10 (h ), 10G (c ) ; and possession of an electrical weapon, G.L.c. 140, § 131J. The indictments stemmed from a wiretap investigation by State police and Framingham police of a drug distribution network operating in Framingham, Natick, Worcester, and Boston.2 Based on intercepted telephone conversations between the defendant's alleged middleman and a street-level distributor of cocaine, police surveillance of a suspected drug transaction, and other information, a judge in the Superior Court in Suffolk County issued a warrant authorizing a search of the defendant's apartment for evidence including a cellular telephone and drug-related records. The warrant also authorized police to search for a distinctive article of clothing (an orange, hooded sweatshirt) allegedly worn by the defendant at the time of the suspected transaction. The warrant affidavit did not seek authorization to search for narcotics. When the warrant was executed, officers seized a large quantity of cocaine, cellular telephones, drug paraphernalia, and ammunition.
The defendant filed a motion to suppress in the Superior Court in Middlesex County. Concluding that the affidavit failed to establish either probable cause to believe that the defendant sold cocaine or a sufficient nexus between the defendant's alleged criminal activity and his apartment, a judge allowed the defendant's motion to suppress the seized evidence. A single justice of this court allowed the Commonwealth's application to pursue an interlocutory appeal in the Appeals Court, and we allowed the defendant's application for direct appellate review.
We conclude that the warrant affidavit established probable cause to believe that the defendant, acting through a middleman, sold cocaine to a street-level dealer on the date alleged. It also established a sufficient nexus between the defendant's participation in that transaction and his residence to permit a search for the cellular telephone used to arrange the sale and the sweatshirt he wore while conducting the transaction. As the motion judge determined, however, the affidavit did not provide sufficient particularized information to allow a general search of the apartment for other "drug-related" evidence. Accordingly, we remand the matter to the Superior Court for a determination, after appropriate proceedings, whether the search exceeded the permissible scope of the warrant.
1. Background. a. Investigation and warrant application. On April 30, 2014, State police Trooper Patrick M. Burke and Framingham police Detective Robert J. Lewis applied for warrants to search twelve residences in Middlesex, Suffolk, and Worcester Counties. The defendant's apartment, located in a building on Commonwealth Avenue in the Allston section of Boston, was one of the twelve. In support of the warrant application, the officers submitted a 221-page affidavit that described a wiretap investigation into a drug distribution network headed by Robert Hairston, operating in Framingham, Worcester, Natick, Boston and surrounding areas. The warrant affidavit provided as follows.
Pursuant to several wiretap warrants issued in April, 2014, officers intercepted text messages and calls between telephones used by Hairston and other members of his organization. Through intercepted telephone calls between Hairston and Nasean Johnson,3 his alleged cocaine supplier, police learned the locations of the transactions, the amount of cocaine Hairston agreed to purchase from Johnson, and the purchase price.
i. Transaction on April 23, 2014. The affidavit alleged that on April 23, 2014, the defendant, assisted by Johnson, who was acting as a middleman, sold Hairston 125 grams of cocaine for $5,200. The affidavit relied upon a detailed description of cellular telephone calls intercepted on April 23, 2014, to establish probable cause that the defendant had conducted the transaction. These calls were described as follows.
At 11 A.M. , Hairston telephoned Johnson to discuss a resupply of cocaine. In response to the question, "What's the word?," Johnson said that he had called his own supplier, referred to as "Ol' boy," and informed Ol' boy that Hairston wanted "two." Hairston asked if the supplier would "come this way" (toward Framingham). Johnson replied that Ol' boy would be there "if you want him to."
When Hairston complained that the $5,200 purchase price was excessive, Johnson responded that his supplier had determined the price: "Nah, he said fifty-two, yo." Hairston remarked that this was a "crazy" price. Johnson reiterated that his supplier had set the price, and added, "I'm not getting nothing off it, he ain't looking out for me." Johnson urged Hairston to let him know as soon as possible if Hairston intended to complete the purchase, because he had to call his supplier "while it's still early."
At 12:08 P.M. , police intercepted a telephone call in which Hairston and Johnson agreed to meet at the Natick Mall at 2 P.M. to complete the transaction. Johnson also mentioned that his supplier would be coming from Brighton. Later, Hairston and Johnson arranged to meet at a particular department store parking lot.
At 2:35 P.M. , Hairston informed Johnson that he was arriving at the parking lot. A few minutes later, a police officer observed the defendant, wearing an orange, hooded sweatshirt (hoodie) and jeans, walking from a restaurant into the parking lot. At 2:37 P.M. , Johnson telephoned Hairston. While they were trying to locate each other in the parking lot, Hairston thought that he had spotted Johnson wearing a hoodie, but immediately corrected himself. Johnson told Hairston that the person in the hoodie was his associate. "Yeah, yeah, keep going that my peeps."
At approximately 2:40 P.M. , police observed Hairston enter a Nissan Altima automobile, driven by Johnson, parked in a parking space directly across from the entrance to the department store. A few minutes later, Hairston got out of the Altima and entered his Audi vehicle. Johnson then left the Altima and approached the Audi. After a brief conversation with Hairston, Johnson re-entered the Altima and left the parking lot.
Surveillance officers followed the Altima. After approximately twenty minutes, at 3:02 P.M. , uniformed officers stopped the vehicle on the purported ground of a traffic violation. They identified the defendant as the individual driving the vehicle and Johnson as the passenger. When the defendant opened the glove compartment to retrieve his registration, they saw a bundle of cash, later determined to be $5,200.
During the course of the stop, at 3:10 P.M. , police intercepted a telephone call between Hairston and Johnson, in which Hairston complained that the cocaine he had just purchased was "wet." Johnson told Hairston that he would have to call back "because I just got pulled over."
At 3:24 P.M. , Johnson telephoned Hairston. Johnson said that his supplier had advised him that the cocaine would dry out in approximately one hour. Johnson added that his supplier promised to make it up to Hairston on the next purchase. "[B]ut on the next one he's got you."
b. Search of the defendant's apartment. On April 30, 2014, a judge of the Superior Court in Suffolk County issued a search warrant authorizing police to search the defendant's apartment for evidence of his participation in the cocaine distribution network. The warrant authorized the seizure of records, in paper or electronic form, related to the defendant's alleged drug distribution business; records related to the financial proceeds stemming from that business; currency used to purchase or sell cocaine; paraphernalia used in the distribution of cocaine; cellular telephones used to further the defendant's alleged drug distribution business, including cellular telephones showing evidence of contact with Johnson's telephone number; personal contact lists; any documentation identifying persons having custody or control over the premises or its contents; and the orange, hooded sweatshirt the police observed during the April 23, 2014, drug transaction.
Police executed the warrant on May 1, 2014. According to the search warrant return, they seized three bags of cocaine, a scale, two ice cube trays, a bottle of Inositol powder, paper containing white powdery residue, $1,000 in cash, nine cellular telephones, an Apple iPad brand tablet computer, one round of ammunition, a stun gun, a container for a "concealed carry deep cover holster," a checkbook in the names of the defendant and his girl friend, one white circular pill, and miscellaneous paperwork.4
c. Prior proceedings. As stated, the defendant filed a motion in the Superior Court to suppress all evidence seized during the execution of the search warrant. A judge of that court allowed the defendant's motion on the grounds that the search warrant affidavit failed to establish either the defendant's involvement in the drug transaction or a sufficient nexus between the alleged drug transaction and his apartment. The Commonwealth sought reconsideration of the suppression order and written findings and rulings. After an evidentiary hearing, the judge issued the requested written findings and denied the motion for reconsideration.
2. Discussion. a. Standard of review. Under...
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