No. 05-580.Commonwealth of Massachusetts Superior Court. NORFOLK, SS.
June 30, 2006.
ON DEFENDANT’S MOTION TO SUPPRESS
MEMORANDUM OF DECISION AND ORDER
JOHN T. LU, Justice of the Superior Court.
Introduction
The Defendant, Henry Banks (Banks), moves to suppress cocaine, marijuana, a scale, pills, and baggies seized when Randolph police executed a search warrant at 25 Birch Road in Randolph. The Court conducted an evidentiary hearing on April 10, 2006, at which Randolph Police Detective Paul Smyth (Smyth) testified.
Finding that the affidavit submitted in support of the application for the search warrant established probable cause, and that the triggering event contemplated by the warrant occurred as required, the Court denies the motion to suppress.
Factual Background
On July 27, 2005, Smyth submitted an application for a search warrant to the Quincy District Court that included the following information:
1. On July 25, 2005, an undercover police officer called Banks and arranged a purchase of crack cocaine. Police watched Banks promptly leave 25 Birch Drive, drive to the agreed location and sell the officer crack cocaine.
2. During the second week of June 2005, a confidential informant designated “CI-01” told police that a man driving a car registered to Henry Banks at 25 Birch Drive was selling small amounts of cocaine to “numerous people in Randolph.”
3. During the third week of July, 2005 a confidential informant designated “CI-02” made a closely supervised controlled buy from Banks, during which CI-02 claimed that Banks said that he had to go home to pick up the drugs.
4. Banks’ criminal record showed an arraignment in December of 2003 for Possession with Intent to Distribute a Class B Controlled Substance, that he was later convicted of the charge, and that he had other drug convictions.
On July 27, 2005, a Quincy District Court Assistant Clerk issued search warrant 05 SW 3695 for 25 Birch Drive in Randolph. The warrant authorized the search only if Banks left 25 Birch Drive, went to a “meet location and [sold] cocaine during a controlled buy,” and only if this occurred within seven days of issuance of the warrant.
Based on the evidence presented at the evidentiary hearing before this Court and reasonable inferences from the evidence, the Court makes the following findings of fact:
1. On July 27, 2005, after issuance of the search warrant, Smyth began watching Banks. Just before 4:30 P.M., while under constant surveillance by Randolph police, Banks left 25 Birch Drive and sold crack cocaine to an undercover police officer.
Discussion 1. The Affidavit
“To establish probable cause to obtain a search warrant, the affidavit must `contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched.'” Commonwealth v. O’Day, 440 Mass. 296, 300 (2003) (quoting Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980)). Where a search warrant relies on confidential informants to supply probable cause, the affidavit must provide the magistrate some facts and circumstances showing both the basis of the informant’s knowledge, and credibility of the informant or the reliability of his information. O’Day, 440 Mass. at 301. Independent police corroboration can compensate for deficiencies in the informant’s basis of knowledge or credibility to establish probable cause. Id.
Probable cause to believe a suspect is engaged in criminal activity does not constitute probable cause to search that suspect’s residence unless there is sufficient nexus between the items to be seized and the place to be searched. In cases where the suspect is believed to be selling drugs, Athe nexus may be found in the type of crime . . . and normal inferences as to where a criminal would be likely to hide'” drugs that he is selling. Id. at 302 (quoting Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983)).
The affidavit described a controlled buy by a police officer and a closely supervised controlled buy by a confidential informant with a record of reliability. This justifies the issuance of the search warrant. Commonwealth v. Cruz, 430 Mass. 838, 842 n. 2 (2000); Commonwealth v. Luna, 410 Mass. 131, 134
(1991).
Banks concedes that the car could be searched but argues that there was no probable cause to search the home because the affidavit did not establish a proper nexus between the criminal activity and his home. The controlled purchase by CI-02 took place about a week before police applied for a search warrant. According to CI-02, Banks told him that he would have to go home to pick up the cocaine before delivering the drugs. The basis of CI-02’s knowledge was his first-hand encounter with Banks. Smyth knew CI-02’s identity, and Smyth knew CI-02 had on several occasions in the past provided information that led to the seizure of drugs. The affidavit provides facts and circumstances showing CI-02’s basis of knowledge and credibility. Police surveillance of Banks before and after the hand-to-hand sale to the undercover police officer revealed that Banks followed the same procedure; Banks went to the drug sale directly from his home and returned directly home afterwards. In the affidavit, Smyth, an experienced drug investigator, interpreted Bank’s actions to mean that he kept the cocaine at 25 Birch Drive, a nearly inescapable conclusion, even without Smyth’s opinion. Based on the information provided in Smyth’s affidavit and the reasonable inferences the magistrate could draw, there was a sufficient nexus between Bank’s drug selling and his residence to establish probable cause to search that residence. O’Day, 440 Mass. 303-304.
2. The Triggering Event
Anticipatory search warrants require the occurrence of a triggering event before the warrant takes effect. Commonwealth v. Staines, 441 Mass. 521, 525 n. 4 (2004). This Court assumes that the Commonwealth has the burden of proving that the triggering event, that Banks left “25 Birch Drive . . . [to go directly] to the meet location and [sold] crack cocaine during a controlled buy,” occurred. The Court finds that the Commonwealth has met its burden of showing that the triggering event occurred as required by the search warrant.
Conclusion
For the foregoing reasons Bank’s motion to suppress isDENIED.