United States v. Dixon

• Decision Date: 21 May 2012
• Docket Number: Criminal Action No. 11–10218–JLT.
• Parties: UNITED STATES of America, v. Samuel DIXON, Defendant.
• Court: U.S. District Court — District of Massachusetts

861 F.Supp.2d 2

UNITED STATES of America,

v.Samuel DIXON, Defendant.

Criminal Action No. 11–10218–JLT.

United States District Court,

D. Massachusetts.

May 21, 2012.

Eric P. Christofferson, Robert E. Richardson, United States Attorney's Office, Boston, MA, for Plaintiff.

Timothy G. Watkins, Federal Public Defender Office, Boston, MA, for Defendant.

MEMORANDUM

TAURO, District Judge.

I. Introduction

Defendant Samuel Dixon was indicted on one count of possession with intent to distribute cocaine under 21 U.S.C. § 841(a), and one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Currently before the court is Defendant's Motion to Suppress and Motion for Franks Hearing [# 15].

II. BackgroundA. Factual Background

On February 11, 2011, Boston Police Detective Michael M. Ross applied to the Dorchester District Court for two warrants. Both warrants were issued that same day, one authorizing the search of the person of Samuel Dixon, and one authorizing the search of 12 York Street, in Dorchester, Massachusetts. The warrants “authorized a search for crack cocaine, paraphernalia used in the distribution of crack cocaine, money derived from the sale of crack cocaine, computers, books, notes, papers and ledgers denoting the sale of crack cocaine, and all personal papers, receipts and/or keys showing occupancy of 12 York St. Apt. # 1 in Dorchester.” ¹ Both warrants were executed on February 16, 2011, leading to the seizure of controlled substances, a firearm and drug paraphernalia from the apartment, and Defendant's arrest.²

Detective Michael M. Ross swore out an affidavit in support of each warrant. In those affidavits, Detective Ross detailed his background and training in law enforcement. The affidavits reflect that he has been a Boston Police Detective since 2007, and that he has completed a number of relevant training classes between 1999 and 2007. Detective Ross has also participated in “over a thousand drug investigations,” as part of his work with the Boston Police Department.³

The affidavit reflects that Detective Ross received information from a confidential informant (“CI”) that a black male was selling crack cocaine in the Dorchester/Roxbury section of Boston. Detective Ross testifies that this CI has provided Detective Ross's unit “with reliable information in the past that has led to the arrests and convictions of individual(s) for violation of the drug laws and also the seizure of drug(s), money, firearm(s) and ammunition.” ⁴ The CI identified the suspect as a black male with short hair, approximately six feet tall and weighing two hundred pounds. The CI also stated that the suspect drove a red Ford SUV, and provided a phone number that the CI used to contact the suspect to purchase drugs.

The affidavit states that the CI participated in three controlled buys of crack cocaine from the suspect, and that after each purchase, officers with the Boston Police Department followed the suspect back to the 12 York Street address. After each buy, the CI turned over to officers the substance s/he had purchased, which Detective Ross testified that he believed to be crack cocaine.

The affidavit also contains supplemental information tying the suspect to the 12 York Street address. Detective Ross testified that he observed a red Ford Expedition frequently parked in the driveway of 12 York Street, and that he was able to confirm that the car was registered to Samuel O. Dixon, with an address of 12 York Street, apartment # 1 in Dorchester. When Detective Ross called the phone number given to him by the CI, he reached a voice mail message that stated he had reached Mr. Dixon, and the CI was able to identify Mr. Dixon from a sanitized photograph. Finally, the affidavit states that Detective Ross contacted the utility company and was able to confirm that the utilities for 12 York Street were in the name of Samuel Dixon, and that the contact number for Mr. Dixon was the same one that was given to police by the CI.

It is based on the information in this affidavit that probable cause was found for the issuance of the two warrants. As previously stated, the warrants were issued on February 11, 2011, and executed on February 16, 2011.

B. Procedural Background

On May 9, 2011, the government filed a criminal complaint against Defendant, and an arrest warrant was issued. On May 16, 2011, Defendant was arrested, and on May 17, 2011, counsel was appointed. On June 16, 2011, a grand jury indicted Defendant on one count of being a felon in possession of a firearm, and one count of possession with intent to distribute cocaine. On June 28, 2011, Defendant was arraigned before Magistrate Judge Sorokin. On September 12, 2011, Judge Sorokin held a final status conference, and issued a Report and Order. On January 1, 2012, Defendant filed the Motion to Suppress and Motion for Franks Hearing [# 15] in this court. After a hearing on April 18, 2012, the court took the matter under advisement.

III. Discussion

Defendant asserts that the search warrants issued in this case were not supported by probable cause, and that no reasonable officer could have relied on the warrants in good faith. Defendant urges that he is therefore entitled to a hearing and further discovery under Franks v. Delaware,⁵ and that the fruits of the allegedly unlawful search should be suppressed. For the reasons set forth below, this court declines to grant Defendant's request.

A. Probable Cause

The law is clear that, “[a] warrant application must demonstrate probable cause to believe that (1) a crime has been committed—the ‘commission’ element, and (2) enumerated evidence of the offense will be found at the place to be searched—the so-called ‘nexus' element.” ⁶ A warrant application, when presented to the magistrate, must contain facts that would “ ‘warrant a man or reasonable caution’ to believe that evidence of a crime will be found.” ⁷ The probable cause standard “does not demand a showing that such a belief be correct or more likely true than false,” but rather is directed at the question of whether “the magistrate had a ‘substantial basis' for concluding that probable cause existed.” ⁸

Reviewing courts should be mindful of the fact that, “magistrates making probable cause determinations act within short time constraints and consequently must read affidavits ‘in a practical, common sense fashion.’ ” ⁹ While it is true that an affidavit must establish probable cause with sufficient detail and precision to enable meaningful judicial review,¹⁰ courts assess probable cause based on the totality of the circumstances, and generally within the four corners of the affidavit in support of the warrant. ¹¹

When a confidential informant's information forms the basis for a magistrate's finding of probable cause, “the affidavit must provide some information from which the magistrate can assess the informant's credibility.” ¹² A magistrate may use a number of factors to assess an informant's credibility including:

whether an affidavit supports [the] probable veracity or basis of knowledge of persons supplying hearsay information; whether the informant's statements are self authenticating; whether some or all of the informant's factual statements were corroborated wherever reasonable and practicable ...; and whether a law enforcement affiant included a professional assessment of the facts related by the informant based in experience.¹³

In assessing credibility of a confidential informant, courts first turn to the manner in which the tip was provided to law enforcement agents. An in-person meeting between the informant and the law enforcement agent generally supports the informant's reliability.¹⁴ “A specific, first-hand account of possible criminal activity is a hallmark of a credible tip.” ¹⁵ Furthermore, if an agent is able to corroborate even innocent activity related by the informant, such corroboration supports a finding of probable cause.¹⁶ When “an informant is right about some things, he is more probably right about others.” ¹⁷ Information given by a confidential informant, however, does not need to be proven to a certainty in order to form the basis of a probable cause determination.¹⁸

In the present case, Detective Ross's affidavit sets forth sufficient facts on its face to support a finding of probable cause. The warrant avers that the confidential informant is known to Detective Ross, and “has provided the B2/Drug Control Unit with reliable information in the past that has led to the arrests and convictions of individual(s) for violation of the drug laws and also the seizure of drug(s), money, firearm(s) and ammunition.” ¹⁹ The warrant thus demonstrates that Ross knew the informant's identity, and thus could hold him responsible for the provision of false or misleading information.²⁰ Furthermore, past successful tips, such as those referred to here, serve to reinforce an informant's reliability. ²¹ A lack of particularized information about the informant's past tips is not fatal to probable cause, and may be necessary to protect the informant's identity.²²

The informant's statements also support a finding of probable cause because they are internally consistent, and where possible, were confirmed by Detective Ross. The informant gave Detective Ross first-hand information, indicating the Defendant's appearance, the type of car Defendant drove, and the phone number at which Defendant could be contacted to arrange a drug transaction.²³ The informant also implicated him/herself in criminal activity by stating that s/he had bought crack cocaine from Defendant in the past. Such a self-incriminating statement made by an informant who is known to law enforcement is “more likely to be true because of the risk inherent in making such a statement.” ²⁴

Detective Ross was able to independently confirm Defendant's identity, address, phone number, and vehicle registration.²⁵ This verification serves to corroborate the CI's...