Opinion
20-P-948
12-28-2021
COMMONWEALTH v. Jose R. GARCIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of trafficking in both heroin and cocaine, two counts of drug violations near a school or park, and furnishing a false name to the police. On appeal, the defendant challenges the denial of his pretrial motion to suppress evidence found in his home when police executed a search warrant for the apartment, as well as the sufficiency of the evidence supporting his convictions. We affirm.
An additional indictment charging the defendant with possession with intent to distribute a Class A substance, subsequent offense, was dismissed by the trial judge.
1. Motion to suppress. We review the issuance of a search warrant de novo, asking whether "[t]he facts contained in the affidavit, and the reasonable inferences therefrom ... ‘demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched,’ " Commonwealth v. Lowery, 487 Mass. 851, 856 (2021), quoting Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), including whether the Commonwealth has demonstrated " ‘a "nexus" between the crime alleged and the article to be searched or seized’ (quotation and citation omitted)." Lowrey, supra at 857, quoting Commonwealth v. White, 475 Mass. 583, 588 (2016). In doing so, "we consider the search warrant affidavit ‘as a whole and in a commonsense and realistic fashion.’ " Lowery, supra, quoting Commonwealth v. Snow, 486 Mass. 582, 586 (2021).
Here, a clerk magistrate of the District Court issued a search warrant based on an affidavit signed by Worcester Police Officer Jeffrey Carlson. In the affidavit, Carlson averred that he had arranged for a confidential informant (CI) to make three controlled buys of narcotics from the defendant, who was known to the CI as "Flaco." The first of these controlled buys was made within sixty days of the warrant application. The CI made arrangements to meet Flaco at a particular location. As Officer Dana Randall watched, a man fitting the description of Flaco arrived in a Toyota Camry that the police learned was registered to an Irvin Cumba-Perez. The CI purchased heroin from the man in the car; when shown a license photo of Cumba-Perez, the CI identified him as Flaco. The police later saw the Camry parked in front of 202 Millbury Street in Worcester.
Each of the controlled buys included in Carlson's affidavit was proper, as in each instance, "(1) a police officer [met] the informant at a location other than the location where is it suspected that criminal activity [was] occurring; (2) the officer searche[d] the informant to ensure the informant ha[d] no drugs on his person and ... furnishe[d] the informant with money to purchase drugs; (3) the officer escorte[d] or follow[ed] the informant to the premises where it is alleged illegal activity is occurring and watche[d] the informant enter and leave those premises; and (4) the informant turn[ed] over to the officer the substance the informant ha[d] purchased from the residents of the premises under surveillance." Commonwealth v. Desper, 419 Mass. 163, 168 (1994).
As we discuss, infra, the police ultimately identified the person known as Flaco and Irvin Cumba-Perez as the defendant, Jose Garcia.
Carlson arranged for a second controlled buy using the same CI within thirty days of submitting the application for the search warrant. Officer Kellan Smith was observing the property at 202 Millbury Street and saw a man whom he recognized from the license photo as Cumba-Perez leave a specific apartment on the second floor of that building (door 1). The police observed Cumba-Perez walk directly to the meeting with the CI, then directly back to door 1 at 202 Millbury Street. The police recovered heroin from the CI that the CI said he had purchased from Cumba-Perez.
Within forty-eight hours of applying for the search warrant, Carlson arranged for the CI to make a third controlled buy of heroin. The CI again contacted Flaco; Officer Larry Williams saw a man whom he recognized from the license photo as Cumba-Perez leave door 1 at 202 Millbury Street and walk directly from that apartment to the meeting with the CI and return to the apartment directly thereafter. The CI turned over heroin that he confirmed he had purchased from Cumba-Perez.
The warrant for the apartment corresponding to door 1 at 202 Millbury Street authorized the police to search for, among other things, heroin and items associated with drug distribution. When they executed the warrant, the police seized approximately 1,566 grams of cocaine, 800 grams of heroin, and various items used in packaging drugs, as well as identification which, as we discuss, infra, indicated that the defendant used the name "Irvin Cumba-Perez." The defendant moved to suppress the evidence found during the search of his apartment on the ground that the affidavit failed to demonstrate probable cause to believe that the items sought would be found there. A judge of the Superior Court denied the motion. We conclude that "[Carlson]’s affidavit was sufficient to establish a timely nexus between [the defendant's] drug activity and the apartment such that probable cause existed to believe evidence of his drug operation would be found there." Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 481 (2020).
First, the affidavit established that the defendant was running a drug delivery operation. It documented the CI's description of the defendant (known to him as "Flaco," and initially identified as "Irvin Cumba-Perez") as a drug dealer, and corroborated the CI's account with the details of three controlled buys of heroin from the defendant. See Commonwealth v. Clagon, 465 Mass. 1004, 1005-1006 (2013). Assuming, arguendo, that the affidavit otherwise failed to establish that the CI met the basis of knowledge and veracity requirements under the familiar Aguilar-Spinelli test, see Spinelli v. United States, 393 U.S. 410 (1969) ; Aguilar v. Texas, 378 U.S 108 (1964) ; Commonwealth v. Upton, 394 Mass. 363, 369–377 (1985) (adopting Aguilar–Spinelli standard for purposes of art. 14 of Massachusetts Declaration of Rights), any infirmities were cured by Carlson's averments that the CI participated in three controlled buys from the defendant. See Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787–788 (2009) ("[A] properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants").
Contrary to the defendant's contention on appeal, nothing turns on whether the police saw any "actual transfer of drugs or currency" during any of the controlled buys. "The requisite nexus between the criminal article or activity described in the affidavit and the place to be searched need not be based on direct observation." Lowery, 487 Mass. at 857, quoting Commonwealth v. Anthony, 451 Mass. 59, 70 (2008).
Second, the affidavit established the required nexus between the drug sales and the apartment subject to the search warrant -- as to two of the three controlled buys, the police saw the defendant travel on foot directly from the apartment to the location of the controlled buy and return directly to the apartment thereafter, suggesting that he kept a ready supply of heroin at the apartment. After the other controlled buy, the defendant returned to the apartment. See, e.g., Clagon, 465 Mass. at 1006 (nexus found based on three controlled buys, two originating from target premises and third terminating at target premises); Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 59-60 (2007) (nexus found based on three controlled buys, two originating from target residence plus inference that third buy also originated from target residence, and two terminating at target residence). Likewise, "given [the defendant's] apparent status as a regular dealer of heroin and his clear connection to the premises, it was reasonable to infer that other evidence, such as paraphernalia, money, and records connected with his trade, would likely be found there." Clagon, supra. In these circumstances, we conclude that the affidavit established probable cause for issuance of the search warrant.
2. Sufficiency of the evidence. The defendant contends generally that the judgments should be vacated and a new trial ordered because the verdicts were against the weight of the evidence. See Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). The defendant waived this argument by failing to raise it before the trial judge, who was in "a far better position than we[ ] to make the judgment required by [ rule 25 (b) (2) ]." Commonwealth v. Chhim, 447 Mass. 370, 381 (2006), quoting Commonwealth v. Cobb, 399 Mass. 191, 192 (1987). Accordingly, we review any error only to determine whether it presented a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no such risk.
The Commonwealth's evidence was more than sufficient to support the defendant's convictions of possession with intent to distribute both cocaine and heroin, and providing a false name to the police. Based on the Commonwealth's evidence, the jury could have determined that when the police executed the search warrant, they found the defendant, who admitted to having a history of drug dealing, living there alone. Searching the house, the police found a chair with a locked, hidden compartment containing heroin and cocaine; there was expert testimony to support the jury's finding that the quantity of drugs secreted in the apartment was consistent with drug distribution, rather than personal use. The police found additional heroin and over $1,000 in cash in the bedroom. They also found in the apartment tools and paraphernalia used in packaging drugs. This was strong evidence of the defendant's possession of the drugs, as well as of his intent to distribute them. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 782 (2009) (possession of quantity of cocaine and heroin found in apartment, coupled with packaging materials found there, permitted inference of trafficking or of possession with intent to distribute). That there was evidence from which the jury could have found otherwise does not alter our conclusion. See Commonwealth v. Alicea, 464 Mass. 837, 852-853 (2013), quoting Commonwealth v. Linton, 456 Mass. 534, 544 (2010) ("In reviewing the sufficiency of the evidence, we keep in mind that the evidence relied on to establish a defendant's guilt may be entirely circumstantial ... and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable’ ").
The defendant has made no argument specific to his entitlement to a new trial on the indictments for the school zone violations, and thus, we do not address those convictions. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Further, the police found evidence that the defendant was using three different names: the aliases Irvin Cumba-Perez and Eduardo Rivera, and his real name, Jose Garcia. The defendant had obtained a driver's license as Irvin Cumba-Perez. Searching the apartment, the police found official papers in that name, including an automobile title, several checks, a Social Security card, a birth certificate, and a physical copy of the driver's license.
In the course of the search, however, the defendant told Carlson that his name was Eduardo Rivera. The police found documents in that name in the defendant's apartment as well, including a Social Security card and a drug ledger, and utility bills for 202 Millbury Street, apartment 2A.
The police did not learn the defendant's true name, Jose Garcia, until they were informed by the FBI that the fingerprints taken during the defendant's booking belonged to Garcia. The jury could have considered that it is common practice for drug dealers to use false names. See Commonwealth v. Brown, 34 Mass. App. Ct. 222, 225 (1993) (defendant's use of false name allowed inference of consciousness of guilt in prosecution for possession with intent to distribute cocaine).
Although trial counsel skillfully cross-examined the Commonwealth's witnesses, those skirmishes did little to undermine the Commonwealth's case. The bulk of the evidence on which the defendant relies in support of his argument came from his own testimony, particularly his claim to have been working as an informant for the police, and to have been permitted by the police to hold large quantities of drugs belonging to others as part of his clandestine work for them. "Credibility is a question for the jury to decide; they may accept or reject, in whole or in part, the testimony presented to them." Commonwealth v. Tennison, 440 Mass. 553, 566 (2003), quoting Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). It appears that in this case, the jury simply did not credit the defendant's testimony. Accordingly, we are not persuaded that the jury's verdicts were against the weight of the evidence. See Tennison, supra.
At the close of the Commonwealth's case, the defendant moved unsuccessfully for a required finding of not guilty as to the indictment charging him with providing a false name to the police. In reviewing a challenge to the sufficiency of the evidence, we "consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Based on the evidence summarized, supra, the jury could have inferred that the defendant used the false names Irvin Cumba-Perez and Eduardo Rivera. They could also have concluded that he did so as a means of preventing the police from learning about his history of drug dealing, see Commonwealth v. Clark, 446 Mass. 620, 626, 628 (2006), and that he maintained his pretense through his arrest and booking and until the police were advised by an outside agency of his true identity. See Commonwealth v. Brantley, 90 Mass. App. Ct. 901, 902 (2016). This evidence was sufficient to prove that he "knowingly and willfully furnish[ed] a false name ... to a law enforcement officer," G. L. c. 268, § 34A, and that he did so "for a dishonest purpose." Clark, supra at 626. There was no error in the denial of the defendant's motion for required finding of not guilty.
Judgments affirmed.