Commonwealth v. Suggs
| Decision Date | 04 August 2021 |
| Docket Number | No. 19-P-1551,19-P-1551 |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. Danny SUGGS. |
Patrick Levin, Committee for Public Counsel Services, for the defendant.
Shane T. O'Sullivan, Assistant District Attorney, for the Commonwealth.
Present: Massing, Sacks, & Grant, JJ.
The defendant was indicted for firearms offenses based on the discovery of a loaded firearm on his person during the execution of a search warrant. He moved to suppress, arguing that information in the search warrant affidavit about his possession of a firearm was stale and unreliable and that the affidavit did not establish that the firearm would be found on his person rather than in his apartment. When the motion was denied, he sought leave to pursue an interlocutory appeal, which was granted by a single justice of the Supreme Judicial Court, and the case was referred to this court. We affirm the order denying the motion to suppress evidence.
Background. We summarize the facts set forth within the four corners of the affidavit of Boston Police Officer Nicholas Fisher, which was submitted in support of the search warrant application. On November 27, 2017, a 911 call reported a domestic disturbance at a certain apartment (apartment) in a large apartment building on Lawrence Avenue in Boston. When police responded to the apartment, they met the defendant and a woman, who both stated that they lived there and that they had been having a verbal argument. The woman told the responding officers her name, date of birth, and telephone number, and that information was included in the search warrant affidavit.
On May 18 and 19, 2018, police received 911 calls from that same telephone number that the woman at the apartment had provided to the police on November 27, 2017. The caller was a woman who stated that the defendant was in possession of a black handgun and had guns inside the apartment. In the 911 calls, the woman told police that she was not then at the apartment. Police officers went to the apartment and spoke to the defendant, but they did not search the apartment.
Within twenty-four hours before the affiant, Officer Fisher, applied for the search warrant on June 12, 2018, police learned from a confidential informant that within the previous forty-five days the informant had seen a black male known as "D Suggs," who lived at the apartment, in its living room holding a black semiautomatic handgun. The informant had knowledge of firearms, including the difference between revolvers, semiautomatic handguns, shotguns, and rifles. The affidavit averred that the informant had demonstrated reliability by giving information in the past that had led to the seizure of illegal narcotics and firearms, to the arrests of individuals for firearm-related offenses, and to convictions in both the District and Superior Courts.1
To determine the identity of "D Suggs," Officer Fisher searched police incident reports and found information linking the apartment to Danny Suggs, the defendant. Officer Fisher also found police reports documenting the November 2017 domestic disturbance and the May 2018 911 calls. He obtained a copy of the defendant's registry of motor vehicles photograph and showed it to the informant, who identified it as depicting "D Suggs," the person who had been holding the black semiautomatic handgun at the apartment. Further investigation revealed that the defendant did not possess a license to carry a firearm or a firearm identification card, nor did he own any registered firearms. No one living in the apartment building was licensed to carry a firearm.
The warrant issued, authorizing police to search the defendant's person for evidence including firearms, ammunition, and "any keys which would show domain and/or control over" the apartment.2 The police executed the warrant and found on the defendant's person two sets of keys and a loaded Walther PPK .380 caliber firearm.
Discussion. 1. Staleness of informant's tip. The defendant argues that the judge should have allowed his motion to suppress because the search warrant affidavit contained stale information that the informant had seen the defendant with the handgun "[w]ithin the last [forty-five] days." We assume that the informant saw the handgun "at the most remote date within that time span," i.e., forty-five days before June 12, 2018. Commonwealth v. Hart, 95 Mass. App. Ct. 165, 167, 121 N.E.3d 195 (2019), quoting United States v. Dauphinee, 538 F.2d 1, 5 n.7 (1st Cir. 1976).
The defendant relies on Hart, 95 Mass. App. Ct. at 166, 121 N.E.3d 195, in which this court concluded that an averment in a search warrant affidavit that an informant had seen a firearm in a home "within the last [sixty] days" did not establish probable cause that the firearm would still be there when police executed the search warrant. Like the affiant in Hart, Officer Fisher opined, based on his training and experience, that firearms are "valuable" and "not easily acquired" if possessed illegally, and so "are often retained for long periods of time."3 The motion judge ruled that Hart was distinguishable because here informant saw the defendant with a firearm within forty-five days, not sixty days, of the date of the affidavit. We agree that the forty-five day time span here changes the staleness calculus. See Commonwealth v. Beliard, 443 Mass. 79, 84, 819 N.E.2d 556 (2004) (). Information that the informant had seen the defendant with the handgun forty-five days before the issuance of the warrant, taken together with other information in the affidavit, established probable cause that the defendant still possessed the handgun when the warrant issued.
Besides the informant's tip and Officer Fisher's opinions based on his training and experience, the affidavit contained "other evidence suggesting that possession of the gun was continuous." Hart, 95 Mass. App. Ct. at 168, 121 N.E.3d 195.4 It described the 911 calls from May 18 and 19, 2018 -- twenty-four and twenty-five days before the search warrant issued on June 12 -- which "were from a female [caller] who stated that [the defendant] ... was in possession of a black handgun and that he had guns inside of [the apartment]" (emphases added). The defendant argues that the affidavit's use of the past tense in the verbs "was" and "had" meant that the caller was describing sightings of firearms prior to May 18 and 19. Any such ambiguity in verb tenses did not defeat the magistrate's finding of probable cause. In context, the affidavit used the past tense to describe the sightings of firearms as essentially contemporaneous with the 911 calls, just as, in the same paragraph, it used the past tense to describe that when police responded the defendant "was at the apartment," but the caller "was not present." See Commonwealth v. Conway, 10 Mass. App. Ct. 738, 740 n.1, 412 N.E.2d 903 (1980) (). See also Commonwealth v. Javier, 32 Mass. App. Ct. 988, 988, 594 N.E.2d 556 (1992). Contrast Commonwealth v. Morton, 26 Mass. App. Ct. 949, 950, 526 N.E.2d 1074 (1988) (). Further, that the caller telephoned 911 on two successive days conveyed some degree of immediacy or urgency. Cf. Commonwealth v. McLaughlin, 79 Mass. App. 670, 681, 948 N.E.2d 1258 (2011) ().
The defendant also argues that the woman 911 caller was not named in the affidavit, and so her reports of seeing a firearm more recently than the informant could not be used to corroborate the informant's tip. See Commonwealth v. Arias, 481 Mass. 604, 619, 119 N.E.3d 257 (2019). See also Commonwealth v. Depiero, 473 Mass. 450, 455, 42 N.E.3d 1123 (2016) (). We agree with the motion judge that "it is reasonable to infer" that the woman named in the affidavit, who was at the apartment with the defendant in November 2017 and told police that she lived there and gave them her telephone number, was the same woman who, six months later in May 2018, called 911 twice from that same telephone number and reported that the defendant had guns, including a black handgun, inside the apartment.
Even if the affidavit did not establish that the 911 caller was aware that police could determine her identity,5 the affidavit established her basis of knowledge and veracity under the familiar Aguilar-Spinelli test. See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See also Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 81, 142 N.E.3d 617 (2020). The basis of the caller's firsthand knowledge was apparent from the promptness, specificity, and detail of her tip: in calls on two successive days, she described a "black handgun" in the defendant's possession and said that he had guns inside the apartment. See Arias, 481 Mass. at 620, 119 N.E.3d 257 (). See also Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 103, 56 N.E.3d 871 (2016) (). Police investigation also confirmed the veracity of the caller's information. In response to the May 2018 911 calls, police went to the apartment and found the defendant there. In addition, police observations of the named woman and the defendant at the apartment in November 2017 corroborated the two May 2018 911 calls from the same...
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...keep them on their person or in their residence. See generally Commonwealth v. James, 424 Mass. 770, 778 (1997) ; Commonwealth v. Suggs, 100 Mass. App. Ct. 102, 107-108 (2021). Here, however, it was not reasonable to conclude that the defendant resided at the apartment or that he had a subs......