Commonwealth v. Tapia

¶1Based on an informant’s tip, as well as police observation of three controlled drug purchases and additional surveillance, police obtained a warrant to search the defendant’s apartment. They found a firearm, as well as significant quantities of heroin and cocaine. On this basis, the defendant was *722charged with various drug and firearm offenses.1 She moved to suppress the contraband as the fruit of an unlawful search of her apartment. As relevant here, the defendant claimed that the affidavit supporting the search warrant was insufficient to establish probable cause to believe that drugs would be found in her residence because the information in the affidavit did not prove an adequate “nexus” between her drug sales and her residence. See Commonwealth v. Escalera, 462 Mass. 636, 642-643 (2012). A Superior Court judge agreed and allowed the motion to suppress.

¶2For the reasons that follow, we conclude that the affidavit supporting the search warrant set out sufficient facts to establish probable cause to search the defendant’s apartment. We therefore reverse the order allowing the motion to suppress.

¶31. Facts and prior proceedings. On March 28, 2008, Officer Gary R. Mercurio of the Brockton police department sought a search warrant for “957 Warren Ave. Apt. # 3 (3rd Floor) Brockton.” In support of this warrant, Mercurio filed a twelve-page affidavit. Because the sole issue is the sufficiency of that affidavit, we recite in detail the facts it sets forth. See Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

¶4In March, 2008, the affiant, Mercurio, along with other Brock-ton officers, began a drug investigation based on a tip from a confidential informant. According to the informant — who had “proven [his2] reliability in the past by providing information and conducting controlled purchases of narcotics, which led to arrests and seizures of narcotics” — he could purchase heroin from a Hispanic female known to him as “Nana” by calling a designated telephone number. By the informant’s description, Nana was tall with a thin build, and “always” delivered the *723drugs in a “newer black car that appeared] to be very clean and shiny” and would direct him to a location somewhere on the south side of Brockton. The informant also told police that “ ‘Nana’ sometimes states that she has to go home to retrieve the heroin prior to their meeting.”

¶5In March, 2008, police observed three controlled purchases of heroin by the informant from the defendant.3 During each purchase, the informant placed a telephone call to the number he associated with Nana, responded to the arranged meeting location under “constant surveillance” by Brockton police officers, and purchased a quantity of heroin4 from the defendant, who arrived in the same black 2005 Honda Accord automobile on each occasion. After the first two controlled purchases, police followed the defendant from the site of the transaction; she drove directly to 957 Warren Avenue. Before the third controlled purchase, officers stationed outside that address observed the same black Honda Accord, operated by the defendant, leave the driveway and head in the direction of the prearranged meeting location. Communication from the officers at the location of the purchase confirmed that the same car arrived moments later. After that purchase, the officers who remained at the residence observed the Honda Accord returning to the apartment “[wjithin two minutes of the transaction taking place,” and moments after its arrival, they “observed a light turn on in the third floor apartment.”

¶6Using their police computer records, the officers identified Nana as the defendant. The registered owner of the Honda Accord was listed as the defendant’s mother, but the defendant’s name was in the record of a motor vehicle stop initiated by the Brockton police department. The defendant’s address in the records was listed as “957 Warren Ave Apt. #3 Brockton, Massachusetts.”5 Further investigation revealed a booking *724photograph and booking sheet for the defendant from April, 2004, which listed her alias as “Nana” and included a description of her that was “very similar” to that which the informant had provided. Based on this booking photograph, the informant later identified Nana as the defendant with “one hundred percent” certainty.

¶7In addition, between the second and third controlled purchases, the officers conducted three days of sporadic surveillance at 957 Warren Avenue. Officers noticed that the Honda Accord remained parked in the driveway during this time period and that, while it was in the driveway, the lights in the third-floor apartment were on. During their surveillance, the officers did not see either the defendant or any other individual enter or leave the apartment.

¶8On March 27, 2008, Mercurio investigated the computer access records of the electricity company providing service to the apartment. The electricity statement for 957 Warren Avenue, apartment no. 3, was in the defendant’s name, and the accompanying telephone number was identical to the one that the informant had called during the three controlled purchases. The same day, two officers responded to 957 Warren Avenue for identification purposes, and spoke with a Hispanic female who identified herself as the defendant. She told the officers that she lived at that address.

¶9The next day, March 28, 2008 (two days after the third controlled purchase), Mercurio filed an affidavit in support of a search warrant for 957 Warren Avenue, apartment no. 3, in Brockton.6 The search warrant was issued, and the search conducted, on that same day. The search of the apartment revealed all the contraband (a firearm, heroin, and cocaine) that formed the basis of the charges against the defendant.7

¶10The defendant moved, under both the Fourth Amendment to *725the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, to suppress all items seized pursuant to execution of the warrant, arguing that “the affidavit failed to establish the requisite nexus between alleged drug distribution and the location of the search.”8 After a nonevidentiary hearing, a Superior Court judge allowed the defendant’s motion. A single justice of this court granted the Commonwealth’s application for leave to pursue an interlocutory appeal, and in an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court affirmed. Commonwealth v. Tapia, 79 Mass. App. Ct. 1113 (2011). We allowed the Commonwealth’s motion for further appellate review.

¶112. Discussion, a. Standard of review. The facts contained in the affidavit, and the reasonable inferences therefrom, must “demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched.” Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986), citing Commonwealth v. Upton, 394 Mass. 363, 370 (1985). Because this is a question of law, “we review the motion judge’s probable cause determination de novo.” Commonwealth v. Long, 454 Mass. 542, 555 (2009), citing United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir. 2007), cert. denied, 552 U.S. 1104 (2008).

¶12b. Nexus. Under both the Fourth Amendment and art. 14, a search warrant may issue only on a showing of probable cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007). This probable cause inquiry requires a “nexus between the items to be seized and the place to be searched.” Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). When the place to be searched is a residence, “there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant’s drug-selling activity and [her] residence to establish *726probable cause to search the residence.’ ” Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009), quoting Commonwealth v. O’Day, 440 Mass. 296, 304 (2003). To satisfy this “nexus” requirement, and thus the probable cause standard, the affidavit “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

¶13In our recent opinion in Commonwealth v. Escalera, 462 Mass. 636, 643 (2012), while acknowledging that “each case presents its own facts,” we sought to provide guidance on the strictures of the “nexus” requirement. As pertinent here, in that case, after a full review of our prior holdings, we clarified that even “[a] single observation of a suspect leaving [her] 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.” Id. at 644. Contrast Commonwealth v. Pina, supra at 442. In applying this rule, we concluded in that case that police observations of four controlled drug purchases, which confirmed details provided by a confidential informant, as well as additional police surveillance of a suspect’s residence, established probable cause to search the residence. Commonwealth v. Escalera, supra at 645-646.

¶14Given both the police observations of three drug purchases and the informant’s tip, considered in light of Commonwealth v. Escalera, supra,there was a sufficient nexus between the defendant’s drug-selling activities and her residence to establish probable cause to search that residence.

¶15i. Direct police observations. The affidavit, on its face, presented sufficient evidence of a single instance where the police observed the defendant leave her home9 to go to the location of a controlled purchase. When the officers saw the *727defendant leave her apartment building minutes after receiving the informant’s telephone call and proceed to a controlled purchase, she either was already in possession of drugs or needed to proceed to a location to obtain them. Commonwealth v. Es-calera, supra at 643-646. In any event, the evidence supports an inference that the drugs were at the defendant’s home. Id. at 646 (“That evidence of the defendant’s drug sales might also have been found [elsewhere] does not detract from the conclusion that there was probable cause to search the apartment”).

¶16That officers did not follow the defendant from the moment of her departure from her residence to her arrival at the location of the sale does not alter our conclusion. See Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 107 (2007). “We agree with the Appeals Court that the transaction witnessed by the informant was susceptible of other interpretations [than the presence of drugs in the defendant’s apartment, but] ... the affidavit must only establish probable cause, not proof beyond a reasonable doubt.” Commonwealth v. Byfield, 413 Mass. 426, 430-431 (1992).10

¶17The additional observations of the officers, as well as the informant’s tip, provided “other information” for a conclusion that the probable cause standard had been met. In addition to the aforementioned occasion on which the officers observed the defendant leave from her home in the direction of a controlled purchase, the officers twice followed the defendant from the site of a controlled purchase directly to her home. The defendant was the only person in the vehicle on both trips, and made no stops en route on either occasion.11 Such evidence contributes *728to a finding of probable cause.12 See Commonwealth v. Luthy, supra at 104-106. Police observed the vehicle used in the controlled purchases parked at the apartment during all three surveillances.13 See id. at 106-107. Also, visual surveillance revealed that the defendant left her residence after a telephone conversation with the informant during which they arranged the third purchase, permitting the inference that the defendant had, on at least that one occasion, conducted the drug delivery business directly from her home. See id. at 107. That the utility bill for the defendant’s apartment listed the same telephone number as that used by the informant in arranging the controlled purchases further tied the telephone used in the drug sales to the location searched.14 See Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 300 (2009).15

¶18ii. Informant’s statement. Finally, the statement provided by *729the confidential informant, that the defendant “sometimes states that she has to go home to retrieve the heroin prior to their meeting,” contributes to the probable cause determination. For statements of confidential informants to be used in the assessment of probable cause under art. 14, the Commonwealth must satisfy the Aguilar-Spinelli test. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). “[T]he Commonwealth must demonstrate some of the underlying circumstances from which (a) the informant gleaned his information (the ‘basis of knowledge’ test), and (b) the law enforcement officials could have concluded the informant was credible or reliable (the ‘veracity’ test).” Commonwealth v. Cast, 407 Mass. 891, 896 (1990).16 Both prongs “must be separately considered and satisfied.” Commonwealth v. Parapar, 404 Mass. 319, 321 (1989).

¶19Here, the informant’s basis of knowledge was apparent on the face of the affidavit: during previous transactions, he directly heard the defendant’s statements concerning her need to go home to procure drugs for sale. Such direct receipt of information satisfies the basis of knowledge test. See Commonwealth v. Allen, 406 Mass. 575, 578 (1990), citing Commonwealth v. Parapar, supra at 322 (“First-hand receipt of information through personal observation satisfies the basis of knowledge prong of Aguilar-Spinelli”).

¶20*730As to the informant’s veracity, this prong was satisfied by the police corroboration of the details provided by the informant through observation of three controlled drug purchases. “[A]n informant’s detailed tip, plus independent police corroboration of those details, . . . can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli standard, and thus satisfy the art. 14 probable cause requirement.” Commonwealth v. Cast, supra at 896. The informant’s description of the defendant’s method of operation closely matched the practice corroborated by the police in three controlled purchases, thus establishing the informant’s veracity. See Commonwealth v. Escalera, 462 Mass. 636, 645 n.8 (2012); Commonwealth v. Blake, 413 Mass. 823, 828-829 (1992). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 397 (2010) (corroboration of only “innocent facts” described by informant do not contribute to veracity).

¶21Because the informant satisfied the two prongs of Aguilar-Spinelli (basis of knowledge and veracity), the informant’s statement that the defendant had described her need to go home to procure drugs for sale may properly be considered in assessing probable cause.

¶22Accordingly, the information provided in the affidavit established a sufficient nexus to the defendant’s apartment to support a finding of probable cause that contraband related to drug sales would be found in the location searched. The order allowing the defendant’s motion to suppress the contraband is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

¶23So ordered.