Commonwealth v. Tapia

• Citation: 463 Mass. 721,978 N.E.2d 534
• Decision Date: 14 November 2012
• Docket Number: SJC–11002.
• Parties: COMMONWEALTH v. Marangely TAPIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 721

978 N.E.2d 534

COMMONWEALTH

v.Marangely TAPIA.

SJC–11002.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 6, 2012.

Decided Nov. 14, 2012.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

John S. Redden, Committee for Public Counsel Services, for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

Based on an informant's tip, as well as police observation of three controlled drug purchases and additional surveillance, police obtained a warrant to search the defendant's apartment. They found a firearm, as well as significant quantities of heroin and cocaine. On this basis, the defendant was charged with various drug and firearm offenses.¹ She moved to suppress the contraband as the fruit of an unlawful search of her apartment. As relevant here, the defendant claimed that the affidavit supporting the search warrant was insufficient to establish probable cause to believe that drugs would be found in her residence because the information in the affidavit did not prove an adequate “nexus” between her drug sales and her residence. See Commonwealth v. Escalera, 462 Mass. 636, 642–643, 970 N.E.2d 319 (2012). A Superior Court judge agreed and allowed the motion to suppress.

For the reasons that follow, we conclude that the affidavit supporting the search warrant set out sufficient facts to establish probable cause to search the defendant's apartment. We therefore reverse the order allowing the motion to suppress.

1. Facts and prior proceedings. On March 28, 2008, Officer Gary R. Mercurio of the Brockton police department sought a search warrant for “957 Warren Ave. Apt. # 3 (3rd Floor) Brockton.” In support of this warrant, Mercurio filed a twelve-page affidavit. Because the sole issue is the sufficiency of that affidavit, we recite in detail the facts it sets forth. See Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000).

In March, 2008, the affiant, Mercurio, along with other Brockton officers, began a drug investigation based on a tip from a confidential informant. According to the informant—who had “proven [his ²] reliability in the past by providing information and conducting controlled purchases of narcotics, which led to arrests and seizures of narcotics”—he could purchase heroin from a Hispanic female known to him as “Nana” by calling a designated telephone number. By the informant's description, Nana was tall with a thin build, and “always” delivered the drugs in a “newer black car that appear[ed] to be very clean and shiny” and would direct him to a location somewhere on the south side of Brockton. The informant also told police that “ ‘Nana’ sometimes states that she has to go home to retrieve the heroin prior to their meeting.”

In March, 2008, police observed three controlled purchases of heroin by the informant from the defendant.³ During each purchase, the informant placed a telephone call to the number he associated with Nana, responded to the arranged meeting location under “constant surveillance” by Brockton police officers, and purchased a quantity of heroin ⁴ from the defendant, who arrived in the same black 2005 Honda Accord automobile on each occasion. After the first two controlled purchases, police followed the defendant from the site of the transaction; she drove directly to 957 Warren Avenue. Before the third controlled purchase, officers stationed outside that address observed the same black Honda Accord, operated by the defendant, leave the driveway and head in the direction of the prearranged meeting location. Communication from the officers at the location of the purchase confirmed that the same car arrived moments later. After that purchase, the officers who remained at the residence observed the Honda Accord returning to the apartment “[w]ithin two minutes of the transaction taking place,” and moments after its arrival, they “observed a light turn on in the third floor apartment.”

Using their police computer records, the officers identified Nana as the defendant. The registered owner of the Honda Accord was listed as the defendant's mother, but the defendant's name was in the record of a motor vehicle stop initiated by the Brockton police department. The defendant's address in the records was listed as “957 Warren Ave Apt. # 3 Brockton, Massachusetts.” ⁵ Further investigation revealed a booking photograph and booking sheet for the defendant from April, 2004, which listed her alias as “Nana” and included a description of her that was “very similar” to that which the informant had provided. Based on this booking photograph, the informant later identified Nana as the defendant with “one hundred percent” certainty.

In addition, between the second and third controlled purchases, the officers conducted three days of sporadic surveillance at 957 Warren Avenue. Officers noticed that the Honda Accord remained parked in the driveway during this time period and that, while it was in the driveway, the lights in the third-floor apartment were on. During their surveillance, the officers did not see either the defendant or any other individual enter or leave the apartment.

On March 27, 2008, Mercurio investigated the computer access records of the electricity company providing service to the apartment. The electricity statement for 957 Warren Avenue, apartment no. 3, was in the defendant's name, and the accompanying telephone number was identical to the one that the informant had called during the three controlled purchases. The same day, two officers responded to 957 Warren Avenue for identification purposes, and spoke with a Hispanic female who identified herself as the defendant. She told the officers that she lived at that address.

The next day, March 28, 2008 (two days after the third controlled purchase), Mercurio filed an affidavit in support of a search warrant for 957 Warren Avenue, apartment no. 3, in Brockton.⁶ The search warrant was issued, and the search conducted, on that same day. The search of the apartment revealed all the contraband (a firearm, heroin, and cocaine) that formed the basis of the charges against the defendant.⁷

The defendant moved, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, to suppress all items seized pursuant to execution of the warrant, arguing that “the affidavit failed to establish the requisite nexus between alleged drug distribution and the location of the search.” ⁸ After a nonevidentiary hearing, a Superior Court judge allowed the defendant's motion. A single justice of this court granted the Commonwealth's application for leave to pursue an interlocutory appeal, and in an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court affirmed. Commonwealth v. Tapia, 79 Mass.App.Ct. 1113, 2011 WL 1564517 (2011). We allowed the Commonwealth's motion for further appellate review.

2. Discussion. a. Standard of review. The facts contained in the affidavit, and the reasonable inferences therefrom, must “demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched.” Commonwealth v. Jean–Charles, 398 Mass. 752, 757, 500 N.E.2d 1332 (1986), citing Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). Because this is a question of law, “we review the motion judge's probable cause determination de novo.” Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), citing United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir.2007), cert. denied, 552 U.S. 1104, 128 S.Ct. 877, 169 L.Ed.2d 738 (2008).

b. Nexus. Under both the Fourth Amendment and art. 14, a search warrant may issue only on a showing of probable cause. See Commonwealth v. Valerio, 449 Mass. 562, 566, 870 N.E.2d 46 (2007). This probable cause inquiry requires a “nexus between the items to be seized and the place to be searched.” Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983). When the place to be searched is a residence, “there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant's drug-selling activity and [her] residence to establish probable cause to search the residence.’ ” Commonwealth v. Pina, 453 Mass. 438, 440–441, 902 N.E.2d 917 (2009), quoting Commonwealth v. O'Day, 440 Mass. 296, 304, 798 N.E.2d 275 (2003). To satisfy this “nexus” requirement, and thus the probable cause standard, the affidavit “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000).

In our recent opinion in Commonwealth v. Escalera, 462 Mass. 636, 643, 970 N.E.2d 319 (2012), while acknowledging that “each case presents its own facts,” we sought to provide guidance on the strictures of the “nexus” requirement. As pertinent here, in that case, after a full review of our prior holdings, we clarified that even “[a] single observation of a suspect leaving [her] home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information.” Id. at 644, 970 N.E.2d 319. Contrast Commonwealth v. Pina, supra at 442, 902 N.E.2d 917. In applying this rule, we concluded in that case that police observations of four controlled drug purchases, which confirmed details provided by a confidential informant, as well as additional police surveillance of a suspect's residence, established probable cause to search the residence. Commonwealth v. Escalera, supra at 645–646, 970 N.E.2d 319.

Given both the police observations of three drug purchases and the informant's tip, considered in light of Commonwealth v. Escalera, supra, there was a sufficient nexus between the defendant's drug-selling activities and her...