Commonwealth v. Washington
| Decision Date | 02 August 2021 |
| Docket Number | 20-P-519 |
| Citation | 100 Mass.App.Ct. 1104,173 N.E.3d 51 (Table) |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. Inga M. WASHINGTON. |
A jury convicted the defendant, Inga M. Washington, of eleven counts of narcotics possession with intent to distribute arising from the search of a residence in South Yarmouth.2 On appeal, the defendant claims that (1) her motion to suppress was erroneously denied, (2) the Commonwealth failed to prove constructive possession of the narcotics, and (3) the admission of testimony that she was the subject of the search warrant constituted reversable error. We affirm.
1. Motion to suppress. We begin with the defendant's claim that her motion to suppress should have been allowed because the search warrant affidavit, which relied on information provided by three confidential informants (CI-1, CI-2, and CI-3), was not supported by probable cause. We disagree.
a. The affidavit. Whether the search warrant established probable cause is a question of law that we review de novo, see Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 79 (2020), and our review is limited to the "four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).
The affidavit indicated that in July 2017, CI-1 informed officers of the Barnstable Police Department that the defendant sold narcotics out of her home in Hyannis. In March 2018, CI-2 informed officers that the defendant sold cocaine from 25 Thatcher Road in South Yarmouth. CI-2 explained that the South Yarmouth residence was a duplex; the defendant used the left side (number twenty-five), and a subject known to CI-2 as "Mike," whom the defendant supplied cocaine, used the right side (number twenty-three).3 CI-2 described purchasing cocaine from the defendant at 25 Thatcher Road. Both CI-1 and CI-2 identified the defendant by a photograph.
CI-1 and CI-3 completed three controlled purchases of cocaine from the defendant between July 2017 and March 2018 that largely proceeded in the same manner.4 In the affiant's presence, CI-1 and CI-3 contacted the defendant by telephone to arrange for the sale of cocaine. The informants were searched to ensure that they were free from narcotics, money, and weapons. The informants were provided money by officers. Officers observed the informants enter the residences and reemerge a short time later. After proceeding to a prearranged location, both informants produced corner cut baggies containing a white substance that was later confirmed to be cocaine, which they had purchased from the defendant.
Following a hearing, the judge denied the defendant's motion to suppress.
b. Probable cause. An affidavit based on information from a confidential informant must satisfy the two-pronged Aguilar-Spinelli 5 test, which requires that the magistrate called upon to review the application for the search warrant be provided with underlying facts establishing an informant's (1) basis of knowledge and (2) veracity. See Commonwealth v. Arias, 481 Mass. 604, 618 (2019). "The probable cause necessary to support the issuance of a search warrant does not require definitive proof of criminal activity." Commonwealth v. Anthony, 451 Mass. 59, 69 (2008). We are also mindful that "in order to encourage the police to apply for search warrants, a reviewing court should allow ‘a certain leeway or leniency in the after-the-fact review of the sufficiency of applications for warrants.’ " Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 485 (2018), quoting Commonwealth v. Corradino, 368 Mass. 411, 416 (1975).
Considering the affidavit "as a whole and in a commonsense and realistic fashion," Commonwealth v. Dorelas, 473 Mass. 496, 501 (2016), we conclude that probable cause to search the defendant and 25 Thatcher Road was established by the informants’ information.
The basis of knowledge prong is satisfied for all three informants because they all admitted to making numerous purchases of cocaine from the defendant. See Commonwealth v. Montanez, 410 Mass. 290, 300 (1991) ().
The affidavit likewise indicates that all three informants made controlled purchases in the past that resulted in the issuance of search warrants and arrests for drug violations. Compare Monteiro, 93 Mass. App. Ct. at 481 (). CI-1 and CI-2 identified the defendant to Detective Foley by a photograph. Both CI-2 and CI-3 informed police that they had made previous purchases of cocaine from the defendant at 25 Thatcher Road, and they both specifically informed officers that the defendant was selling powder and crack cocaine to others from the left half of the duplex home at 25 Thatcher Road. This information, taken together, established that the information provided by all three informants was credible. See Commonwealth v. Russell, 46 Mass. App. Ct. 513, 519 (1999) (). Cf. Commonwealth v. Warren, 418 Mass. 86, 89 (1994).
Moreover, CI-3's controlled purchase compensated for any deficiencies in the informants’ reliability. Here, officers monitored CI-3's controlled purchase of cocaine from the defendant at 25 Thatcher Road within seventy-two hours of the warrant issuing. See Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787-788 (2009) (). CI-3 was searched prior to the controlled purchase for narcotics, money, and weapons, and officers accompanied CS-3 to 25 Thatcher Road. CS-3 was provided money by officers. Officers observed CS-3 enter and exit the residence, and after travelling to a prearranged location, CS-3 provided cocaine that was stated to have been purchased from the defendant. In addition, CS-1 tied the defendant to cocaine possession and distribution by completing a controlled purchase from her at a different location.
Under these circumstances, we are satisfied that the information contained in the affidavit established probable cause to issue the search warrant.6
2. Sufficiency of the evidence. At trial, the Commonwealth proceeded on the theory of constructive possession. "Constructive possession requires ‘knowledge coupled with the ability and intention to exercise dominion and control.’ " Commonwealth v. Reyes, 98 Mass. App. Ct. 797, 801 (2020), quoting Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019). The defendant claims that the Commonwealth failed to prove each element of constructive possession beyond a reasonable doubt. We disagree.
In the light most favorable to the Commonwealth, the jury reasonably could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On April 3, 2018, officers from the Barnstable Police Department were conducting surveillance of 25 Thatcher Road. Officers observed between ten and eighteen people arrive at 25 Thatcher Road and depart shortly thereafter over the course of approximately three hours. The defendant was not seen by officers during this surveillance period. After conducting their surveillance, four officers approached the residence to execute the search warrant. As officers approached, the defendant opened the main door to the residence. She exclaimed "oh shit" and slammed the door closed. Officers gained access to the residence with a battering ram.
The defendant was apprehended in a bathroom; three others were seated on a futon in the living room. Due to the confines of the residence, Sergeant Kim Saladino searched the defendant in a shed on the property. Nothing was recovered from the defendant's person, but Sergeant Saladino recovered a "piece of plastic" off the floor that, in her experience, appeared to be drug related.7 No papers or documents bearing the defendant's name were recovered from the premises.
Officers then conducted a search of 25 Thatcher Road. Numerous corner-cut baggies were found in the bathroom where the defendant was found. On a table by the front door, officers recovered four cell phones, three gold bars, and $430 in cash. A digital scale and crack cocaine were found on a coffee table. Additional scales, a container containing a white substance, and suboxone
strips were recovered from drawers in the table. In total, officers recovered cocaine, methamphetamine, suboxone, Gabapentin, amphetamine, clonidine, clonazepam, a substance containing naloxone, buprenorphine, and cocaine, ranitidine tablets, Ibuprofen, and a bottle of hydrocodone.
Although a lack of personal belongings tying the defendant to 25 Thatcher Road cuts against a finding of dominion and control, see Commonwealth v. Ramos, 51 Mass. App. Ct. 901, 903 (2001), there was sufficient additional evidence to prove constructive possession. See Commonwealth v. Albano, 373 Mass. 132, 134 (1977) (). Police surveilled the premises for approximately three hours prior to executing the search warrant. During that time, they observed between ten and eighteen people arrive at 25 Thatcher Road and leave shortly thereafter. The Commonwealth furnished testimony that such behavior was indicative of narcotics transactions. See Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009) (...
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