Opinion
11-P-1961
01-03-2013
COMMONWEALTH v. DOMINGO HERNANDEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant's appeal challenges the denial of his motion to suppress evidence recovered pursuant to a search warrant. The defendant claims the warrant lacked probable cause to establish a sufficient nexus between drug-dealing activities and an Ames Street, Brockton, apartment (apartment) connected with the drug transactions. We affirm.
'[A]n affidavit offered in support of a search warrant 'must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises." Commonwealth v. Escalera, 462 Mass. 636, 642 (2012), quoting from Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). 'The central inquiry is whether the affidavit accompanying the search warrant sets forth probable cause to believe that the drugs or related evidence from the drug delivery service are likely to be found at the defendant['s] residence.' Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 105 (2007). To support his claim that the affidavit was insufficient to establish an adequate nexus between his drug sales and the apartment, the defendant relies on Commonwealth v. Pina, 453 Mass. 438, 441 (2009), because, as in that case, the affidavit described only a single instance in which officers observed the defendant's vehicle departing the apartment immediately before a drug transaction occurred. The Supreme Judicial Court clarified the one-observation maxim of Pina as it regards the nexus requirement in the recent case of Commonwealth v. Escalera, supra at 644, where it stated that '[a] single observation of a suspect leaving his 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, such as statements from credible informants.' See Commonwealth v. Tapia, 463 Mass. 721, 723, 726-727 (2012) (applying Commonwealth v. Escalera, supra at 643). The amount of information available to the magistrate in excess of the single observation in this case tracks closely with that in Commonwealth v. Escalera, supra at 645-646, and the evidence in total supports an inference that the drugs were located at the apartment.
Detective Keating's warrant established a sufficient nexus between the defendant's activities and the apartment such that a search of the apartment was supported by probable cause. Much like in Commonwealth v. Tapia, supra at 723, the affidavit presented sufficient evidence of officers observing a single instance where the defendant left the apartment and went directly to the location for the controlled purchase. The magistrate could reasonably infer that when officers made this single observation, the defendant was in possession of the drugs at the time, and the drugs were therefore at the apartment. Ibid. See Commonwealth v. Escalera, supra at 646.
The magistrate could make additional inferences to provide support for a sufficient nexus between the defendant's drug sales and the apartment. The magistrate could infer from the defendant's ability to deliver small quantities of cocaine on demand to locations in close proximity to the apartment that the defendant had a larger inventory of cocaine nearby for ease of distribution. Commonwealth v. Monteiro, 80 Mass. App. Ct. 171, 176 (2011). Similar to this court's analysis in Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 299 (2009), the defendant's use of prepackaged cocaine suggests the cocaine was stored elsewhere besides either of the two vehicles used for the sales. See Commonwealth v. Luthy, supra at 107 ('It was a reasonable inference that the drugs were stored someplace other than the automobile, particularly given that [the defendant] was engaged in a drug distribution business, and the quantity of drugs involved'). The use of multiple cars in the distribution further suggests the defendant stored his inventory at a central location. See Commonwealth v. Escalera, 79 Mass. App. Ct. 262, 267 (2011), S. C., 462 Mass. 636 (2012). The similar patterns employed by the defendant during all seven controlled purchases 'giv[e] rise to the reasonable inference that [the apartment was] being used as the base for his drug operation [and] provides [a] sufficient nexus to search [the apartment].' Commonwealth v. Monteiro, supra at 176, quoting from Commonwealth v. Escalera, supra at 266.
Further observations made by officers during the course of the investigation into the drug sale operation establish additional probable cause to believe the drugs were located in the apartment. Detective Keating conducted seven different controlled purchases from the defendant over a three-week period, after six of which detectives followed either the defendant or other associates back to the apartment. See Commonwealth v. Tapia, supra at 723. After most of these purchases, the vehicles traveled directly back to the apartment with no stops made in between, leading the detectives to infer that the defendant and his associates were returning to deliver the proceeds of the transactions to the apartment. See Commonwealth v. Monteiro, supra. For each controlled purchase, the defendant or his associates delivered drugs to Detective Keating using one of two vehicles, both of which were observed multiple times parked at the apartment. Brockton police also stopped one of the vehicles used by the defendant to conduct the drug transactions less than four months prior and arrested all the occupants for drug possession and intent to distribute; one of those same occupants -- an associate of the defendant whom police had previously observed at the apartment -- had made a false 911 call two months prior from the address of the apartment. Two days prior to the warrant application, police knocked on the door of the apartment; when the door was opened, police observed both the defendant and the associate who made the false 911 call inside the apartment. All these observations create sufficient 'additional information' beyond the single observation necessary to establish a nexus between the defendant's drug activities and the apartment.
Judgments affirmed.
By the Court (Meade, Sikora & Carhart, JJ.),