WOLOHOJIAN, J.
The defendant raises two primary issues in this appeal from his convictions of various drug and firearm offenses.
1. Sixth Amendment. Ballistics and drug certificates were admitted at trial over the defendant's objection. There is no doubt that their admission, absent live testimony or the opportunity to cross-examine, violated the confrontation clause of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). We review, therefore, to determine whether the admission of the certificates was harmless beyond a reasonable doubt. "Our review presumes that the constitutional violation requires reversal, but an affirmative showing of harmlessness beyond a reasonable doubt by the Commonwealth will preserve the convictions." Commonwealth v. Fluellen, 456 Mass. 517, 526 (2010). "In considering the essential question whether the error had, or might have had, an effect on the jury and whether the error contributed to or might have contributed to the verdicts, our focus is not on whether the jury could have convicted the defendant had the tainted evidence been excluded; it is not
The Commonwealth primarily argues that the erroneous admission of the certificates was harmless beyond a reasonable doubt because neither the composition of the narcotics nor the operability of the firearms were "live" issues at trial. This, however, is not enough where, as here, there was little (if any) evidence to prove the nature of the substances or the operability of the firearms. See Commonwealth v. Vasquez, 456 Mass. 350, 368 (2010); Commonwealth v. Charles, 456 Mass. 378, 383 (2010). Even if a defendant does not contest the composition of the alleged drugs, or the operability of a firearm, the "defendant's theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt." Commonwealth v. Shea, 398 Mass. 264, 269 (1986). Nor does the fact that defense counsel at various points referred to the objects as a "gun," or heroin, or cocaine satisfy the Commonwealth's burden of proving the guns' operability or the substances' composition.
That said, we conclude based on Commonwealth v. Muniz,
2. Motion to suppress. The defendant argues that the affidavit supporting the application for a search warrant did not set forth a "nexus" with his residence sufficient to establish probable cause. To determine whether a sufficient nexus has been made out, we read the affidavit as a whole, without isolating or deconstructing its individual parts, or subjecting it to strained or hypercritical analysis. See Commonwealth v. Blake, 413 Mass. 823, 827 (1992). "The nexus may be found in `the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide' the drugs he sells." Commonwealth v. O'Day, 440 Mass. 296, 302 (2003), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 484 U.S. 860 (1983).
"When that location 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 his residence to establish probable cause to search the residence.'" Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009), quoting from Commonwealth v. O'Day, 440 Mass. at 304 (single observation of drug dealer leaving his residence to go to drug transaction did not provide sufficient nexus). "Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person's residence." Commonwealth v.
Summarized, the facts in the affidavit in this case were as follows. A confidential informant (CI) told police that he (a pronoun used for convenience, not to signify gender) knew of a heroin dealer in Brockton who used two different automobiles (one a white Toyota, the other a green Audi with fancy wheels) to deliver drugs to prearranged locations. Using this information, the police worked with the CI to make four controlled purchases of heroin over the next two weeks. On each of these occasions, the CI called the defendant by telephone and asked for a specific quantity of drugs. The defendant then specified the location at which to meet. The defendant arrived by car (either the white Toyota or the green Audi) and picked up the CI. He drove a short distance with the CI in the car, during which a sale of heroin took place. The CI was then let out of the car. After each of these sales, the defendant drove directly to his residence, and parked the car in the parking lot. He then entered the house through its rear entrance, located near the basement. In addition, on one of these occasions, police observed the defendant drive the Toyota away from his residence a few
On two additional occasions during the same two-week period, the defendant was observed to leave his residence, get directly into the Audi, and drive to a location where he picked up a woman, drove a short distance, and then dropped her off. He returned directly to his residence. This behavior was in all material respects identical to the defendant's modus operandi in the controlled purchases and it takes no leap of imagination to infer that these too were drug transactions.
In summary, the defendant was seen leaving and returning to his residence multiple times to what were either known drug sales or to encounters that could readily be inferred to be drug transactions. A pattern of activity such as this, in our view, provides sufficient nexus to a dealer's residence to satisfy probable cause to search it. In addition, the defendant's use of multiple cars makes it more likely that he stored drugs in his residence, rather than in the vehicles. Moreover, whatever the defendant was storing in the engine compartment of the Toyota, he had no need to access it on the way to a sale. Rather, that material was either deposited into the compartment after a sale or taken from the compartment into his house. Either way, it bolsters the inference that drugs were stored in the house, rather than in the vehicles. Furthermore, the defendant always used the rear
The defendant's motion to suppress was properly denied.
3. Other issues. We address briefly the other issues raised by the defendant. The judge correctly determined that the defendant did not have an objectively reasonable expectation of privacy in the basement to which the landlord also had full access. See Commonwealth v. Williams, 453 Mass. 203, 208-209 (2009) (and cases cited therein). Finally, there was no error in denying the defendant's motion for a required finding of not guilty regarding the charges based on items discovered in the basement. The evidence, taken in the light most favorable to the Commonwealth, was sufficient to allow a jury to find, beyond a reasonable doubt, that the defendant had constructive possession over the items in the basement.
For the reasons set forth above, the defendant's conviction of possession of ammunition (indictment no. 06-00182-003) is affirmed. The judgments on the other indictments are reversed, the verdicts are set aside, and the cases are remanded to the Superior Court for a new trial.
So ordered.
GRAINGER, J. (concurring).
I write separately because our case law on the issue of nexus and probable cause no longer appears to provide useful precedent. This case illustrates that certain assumptions underlying our rescript decision in Commonwealth v. Smith, 57 Mass.App.Ct. 907 (2003), and thereafter adopted by the Supreme Judicial Court in Commonwealth v. Pina, 453 Mass. 438 (2009), and Commonwealth v. Medina, 453 Mass. 1011 (2009), would benefit from reexamination.
A known drug dealer is observed leaving his residence,
The term "probable cause" is not defined in either the Federal Constitution or our Declaration of Rights. Commonwealth v. O'Day, 440 Mass. 296, 300 (2003). "Probable" refers to an inference "that can reasonably be expected or believed on the basis of the available evidence, though not proved or certain." Webster's New Universal Unabridged Dictionary 1433 (2d ed. 1983). "[F]or there to be probable cause, the facts must be such as would warrant a belief by a reasonable man." Black's Law Dictionary 1321 (9th ed. 2009), quoting from LaFave and Israel, Criminal Procedure § 3.3 at 140 (2d ed. 1992).
Our task therefore has been, and remains, to apply "probable" in a continuum somewhere between possible and certain. The variation in background and circumstances presented by each successive case has resulted in appellate pronouncements relying on ever finer factual distinctions employed to support a particular result for that case; police, prosecutors, defense counsel, magistrates and judges are consequently deprived of useful guidance.
Probability does not require the elimination of competing explanations; that would be certainty. In many cases, including this one, the competing explanations to be derived from observed facts are that the defendant kept drugs in a car or on his person, rather than in his home. The existence of these alternatives would not remove a basis to search the defendant's home in my opinion, even if they claimed parity with the probability of drug storage in the home. But they do not: cars and other vehicles
As in this case, reasonable judges can and do differ on the significance of using the same entrance to a building, engaging in activity which looks like a drug transaction but might be something else, registering utilities in one's own name or someone else's, raising the hood of a car on one occasion but not on another, and so forth. Having denied the inference properly drawn from the stronger evidence, we seek to remedy the shortfall with a collection of the weaker. At some point, of course, a large accumulation of facts with weak import may be said to provide a critical mass, but this approach is unsatisfactory in my view and in any event does not often present itself for appellate review.
In sum, I believe the majority and dissent reach equally defensible results, depending largely on how one chooses to interpret the mandate for additional "particularized information" required by Pina, supra at 442. Under these circumstances, because I consider probable cause to have been demonstrated, I join in the result reached by the majority.
BERRY, J. (dissenting in part).
Respectfully, I dissent because I believe that on the current state of the law, the cases of Commonwealth v. Pina, 453 Mass. 438 (2009), and Commonwealth v. Medina, 453 Mass. 1011 (2009), control this case. See Part I, infra.
I also dissent because I do not believe that, within the four corners of the search warrant affidavit, a probable cause nexus
Turning to the first basis of this dissent, I believe this court is bound to apply the controlling precedent of Pina, supra, and Medina, supra.
Here, as in Pina and Medina, there was only one transaction in which the investigators had set up surveillance at the defendant's apartment building and saw the defendant drive from the parking lot to the site prearranged with the informant, sell the "two" to the informant for $100, and then drive back to the apartment building. In the other three transactions, there was no such point of origin surveillance. Thus, in three of the four deals, it was unknown where the defendant originally came from in order to reach the prearranged site, and the affidavit does not state, nor could it state, that the defendant's point of origin before driving to the prearranged site was the apartment building.
In Pina, 453 Mass. at 442, the Supreme Judicial Court held that "a single observation of the defendant driving from the apartment to a location where he sold an unspecified quantity of cocaine to the informant" did not constitute
Furthermore, in Pina — so too, in this case — there are no other connective factors that link to the apartment building. That is, like the Pina affidavit, this affidavit did not include "details about the amount and quantity of drugs the defendant
The court's analysis in the Medina case confirms the Pina rejection of one round trip as a predicate for probable cause nexus to a residence. In Medina, 453 Mass. at 1011, the court wrote as follows:
In sum, in this case, when one applies the analysis that one round-trip surveillance of a drug sale is insufficient, see Pina, supra, and Medina, supra, as this court is bound to do, there are only blanks, not connective dots, in the affidavit, leaving no probable cause nexus between the apartment building and the defendant's four small sales of heroin in offsite car transactions. Accordingly, I dissent from the majority holding in light of the Pina-Medina precedent.
Second, I dissent because, even apart from the Pina-Medina precedent, I am not persuaded that, within the four corners of
To the contrary, if one looks within the four corners of this affidavit, there is only a broken line that cannot connect probable cause to the apartment building. (Compare the O'Day case, discussed infra.) In this case, there is no indication that the informant ever saw drugs in the defendant's apartment building. There is no surveillance indicating that drugs were sold by the defendant from within the apartment building. There is no indication that the defendant was within the apartment when the sales were set up by the informant's telephone calls. There is no indication that the defendant ever carried anything from the apartment building. And as previously noted, there is nothing in the affidavit about the defendant leaving the apartment building prior to three of the four controlled buys. Indeed, the only round-trip surveillance refers to the defendant driving from the parking lot
From all that appears in the affidavit, it was more probable that the heroin was stored in the interchangeable Audi and Toyota cars, which the defendant drove to the prearranged heroin dealing sites. On that point, I note that in two separate surveillances (not part of the four controlled sales to the informant), the police observed the defendant engaging in unusual activity that indicated he was placing something into or moving something around between the Audi and the Toyota. During one such surveillance conducted on April 1, 2005, detectives observed the defendant, accompanied by an unidentified heavyset Hispanic man, exit the rear of the apartment building, and enter the green Audi. The defendant drove in an evasive manner. The Audi was met by an unidentified man and woman. The woman entered the Audi, and after a short ride, was dropped off. Upon return to the apartment building parking lot, the defendant exited the Audi, walked over to the Toyota, and looked about to see if he were being watched. The defendant entered the Toyota, and opened the engine hood. Again, the defendant looked around to see if he were being watched. The defendant either placed something in, or took something out of, the Toyota engine compartment. Then, the defendant moved the Toyota to a spot that blocked the Audi. In another such surveillance, on April 4, 2005, the police observed the defendant exit the rear of the apartment building and walk directly to the Audi, which he opened with a key. The defendant drove the Audi to meet with an unidentified female, who entered the Audi, and was dropped off after a short ride. When he returned to the apartment parking lot, the defendant again exited the Audi, and used another key to unlock the Toyota. The defendant went into the Toyota's interior for a brief time.
Further indicating that the defendant used the two cars as
The majority looks to Commonwealth v. O'Day, 440 Mass. 296, as support for a probable cause nexus to the apartment building. In my opinion, the O'Day case tends to demonstrate no such probable cause. In O'Day, the only significant affidavit information similar to this case is that there were three controlled buys by an informant. But, in most other material respects, the O'Day case is markedly different because the O'Day search warrant affidavit had many more links to the residence than are present in this case.
Most significantly, in the O'Day case, the Supreme Judicial Court cited two police surveillances indicating sales from within O'Day's residence as establishing probable cause that controlled substances were stored in that residence. In one police surveillance of O'Day's residence, the officers saw a number of visitors arrive and depart after a very brief stay. Commonwealth v. O'Day, supra at 299. Given the quick visits by this series of individuals to O'Day's residence, the affidavit included a police officer's expert opinion that the behavior was "consistent with narcotics distribution." Ibid. A second police surveillance of O'Day's residence confirmed "the same pattern of visitors to the defendant's residence as on the previous occasion: `several vehicles that arrived and departed ... after a brief stay.'" Id. at 300. It was this parade of visitors briefly entering and exiting O'Day's residence that the Supreme Judicial Court found critical
In further contrast to the O'Day case, here, there was no information in the affidavit that the defendant was using the apartment to sell drugs to random and brief visitors. Nor did the affidavit contain corroborative investigative information linking the residence to illegal conduct, such as was set forth in the O'Day affidavit. To illustrate the major differences: as set forth in the O'Day affidavit (beyond the sales at the residence already described), the investigation also revealed a series of sales by O'Day to a number of buyers at the pub where he worked. In this respect, the O'Day affidavit refers to one pub surveillance where there were "a series of exchanges beneath a table in the bar [between O'Day and] several individuals." Id. at 229. In another surveillance at the pub, there were several police observations of potential buyers going into the men's room with O'Day for a short period of time, as if a deal had just occurred. Id. at 300. Given all of this additional information — beyond the three controlled buys to the informant — the Supreme Judicial Court in O'Day concluded that the number of transactions and quantity of drugs being sold on divers dates by the O'Day enterprise gave rise to probable cause that cocaine was stored at O'Day's residence. Specifically, the O'Day court wrote as follows:
Id. at 303.
None of this is present in the affidavit in this case. Unlike the O'Day case, there are no sales by the defendant other than the four controlled buys. There is not, in this case, a large number of buys or substantial drug sales. There is no evidence of a large-scale drug enterprise. Rather, what the search warrant affidavit devolves to is four "small time" controlled buys by an informant: (1) a buy of "one" for forty dollars on March 28, 2005; (2) a buy of "one" for sixty dollars on March 29, 2005; (3) a buy of "two" for $100 on April 4, 2005; and (4) a buy of "one" for sixty dollars on April 8, 2005. (As previously referenced, see note 1, supra, these four controlled buys were not a part of the trial, and not the basis for any of the defendant's convictions.)
Because the trial was based on the heroin, cocaine, and guns and ammunition seized under the warrant, and not the controlled buys by the informant, it is true that allowance of the defendant's motion to suppress on the basis that the search warrant affidavit did not establish probable cause nexus to the apartment building means that a man who had a large cache of heroin (30.96 grams), a smaller, but not insignificant, amount of cocaine, and handguns will have his convictions vacated.
Based on the evidence seized under the warrant, the defendant was convicted of trafficking in heroin, G. L. c. 94C, § 32E(c); distribution of cocaine, G. L. c. 94C, § 32A(c); two violations of the "school zone" law, relative to the heroin and cocaine, G. L. c. 94C, § 32J; and three counts of unlawfully possessing a firearm or ammunition in violation of G. L. c. 269, § 10(h), with two such firearm offenses being subsequent offenses.