Opinion
20-P-519
08-02-2021
COMMONWEALTH v. Inga M. WASHINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
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. 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.
The defendant was convicted of one count of possession of cocaine with intent to distribute, subsequent offense, G. L. c. 94C, § 32A (d ) ; three counts of possession of a class B substance with intent to distribute, subsequent offense, G. L. c. 94C, § 32A (b ) ; one count of possession of a class C substance with intent to distribute, subsequent offense, G. L. c. 94C, § 32B (b ) ; and six counts of possession of a class E substance with intent to distribute, subsequent offense, G. L. c. 94C, § 32D (b ).
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). CI-2 described purchasing cocaine from the defendant at 25 Thatcher Road. Both CI-1 and CI-2 identified the defendant by a photograph.
A subsequent investigation confirmed that number twenty-five was on the left side of the duplex, and number twenty-three was on the right side.
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. 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.
CI-1 made two controlled purchases of cocaine from the defendant's residence in Hyannis. CI-3 purchased cocaine from the defendant at 25 Thatcher Road. With respect to CI-3's controlled purchase from 25 Thatcher Road, officers observed CI-3 enter and exit the home. CI-3 stated to officers that it had purchased cocaine from the defendant, and that there were several other customers at the home.
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 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).
See Aguilar v. Texas, 378 U.S. 108, 114 (1964) ; Spinelli v. United States, 393 U.S. 410, 415 (1969).
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) (where informants’ knowledge based on personal observations, "basis of knowledge" prong of the Aguilar-Spinelli test is satisfied).
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 (statements made by first time informant insufficient, standing alone, to satisfy veracity prong). 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) ("The Aguilar-Spinelli safeguards are satisfied when, as here, multiple informants provide the police with mutually corroborative and complementary tips, and independent police investigation confirms the tips in significant detail"). 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) ("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"). 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.
See Warren, 418 Mass. at 90-91 (controlled purchase alone may establish probable cause to issue search warrant for search of location where sale made).
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. No papers or documents bearing the defendant's name were recovered from the premises.
Sergeant Saladino searched the shed prior to searching the defendant and found "[n]othing remarkable."
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) ("Presence alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband], but presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency" [quotation omitted]). 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) ("Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part"). The defendant was not among them; she remained inside the small residence surrounded by large quantities of narcotics the entire time. Compare Commonwealth v. Sespedes, 442 Mass. 95, 100-101 (2004).
Furthermore, as officers approached the door, the defendant opened and quickly slammed it closed before retreating into a bathroom where corner-cut plastic baggies were found. See Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989) ("The defendant's retreat into the closet containing cocaine and cocaine paraphernalia allowed an inference of consciousness of guilt"). The search of the residence resulted in the recovery of narcotics and paraphernalia. See Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 683 n.13 (2006) ("[W]hen the defendant is present at or near the scene where the contraband is found ... [her] behavior ... generally provides a basis upon which the court determines whether there was sufficient evidence relating to possession, including ... proximity to contraband in plain view or hidden"). The Commonwealth was not required to show that the defendant's possession was exclusive; constructive possession may be exercised jointly. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 834 (2018) ; Commonwealth v. Lopez, 31 Mass. App. Ct. 547, 552 (1991). In sum, the totality of this evidence and the inferences that could be reasonably drawn therefrom were sufficient to establish the defendant's knowledge and ability to exercise dominion and control over the drugs beyond a reasonable doubt.
The Commonwealth adduced evidence that corner-cut plastic baggies are commonly used to package narcotics prior to their sale.
3. Challenged testimony. Finally, the defendant claims that the judge was required to exclude testimony that the defendant's person or residence was the target of the search warrant. We conclude that a substantial risk of a miscarriage of justice did not result from the admission of improper testimony. See note 8, supra.
The parties dispute the standard by which we review this claim. The defendant filed a motion in limine to preclude testimony that the search warrant was for the "body or person of [the defendant]." The defendant claimed that such testimony would constitute "backdoor hearsay." At trial, the defendant objected to the admission of the challenged testimony without stating the grounds for the objection. On appeal, the defendant claims that the testimony was improper because its prejudice outweighed any probative value of the testimony. These are different evidentiary grounds. Therefore, we review the defendant's claim under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Fowler, 431 Mass. 30, 41 n.19 (2000) (issue not properly preserved because defendant objected on grounds other than those argued on appeal).
The following exchange occurred during the direct examination of Detective Foley:
Q.: "[O]n or about April 3rd, 2018, did you obtain anything from the courts?"
A.: "Yes, I did."
Q.: "What did you obtain?"
A.: "I obtained a search warrant."
Q.: "And where or who did that search warrant give you authority to search?"
A.: "[The defendant] and her residence at 25 Thatcher Road in Yarmouth" (emphasis added).
The judge overruled the defendant's objection.
The quoted testimony referring to the defendant "and her residence at 25 Thatcher Road" was admitted in error. "Some testimony about the search warrant application procedure is generally permissible to explain to a jury why the police were present at the scene of a search and why they did certain things at the scene." Commonwealth v. Ferrara, 31 Mass. App. Ct. 648, 651 (1991). But permitting testimony about other details of the warrant may have the effect of using a magistrate's issuance of the warrant to vouch for police officers’ credibility, see id. -- here, on the assertion that the defendant resided at 25 Thatcher Road, which was relevant to the Commonwealth's constructive possession argument. This testimony about what the warrant stated was thus substantially more prejudicial than probative.
"An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). "A mere possibility of a different outcome will not satisfy this burden." Commonwealth v. Amirault, 424 Mass. 618, 652 (1997). Among the factors we consider are the strength of the Commonwealth's case, the nature of the error, and whether the error was significant enough to influence the jury's verdict. See Alphas, supra.
Here, as discussed supra, the Commonwealth's evidence was legally sufficient and relatively strong. The improper testimony was not repeated. Indeed, testimony identifying the defendant as the target of the search warrant was elicited in only two other instances -- including once by the defendant -- during the trial. The defendant did not request a limiting instruction prior to the final jury charge. Based on our review of the entire record, we conclude that the error did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.