Chief Justice SUTTELL, for the Court.
The defendant, Geronimo Cosme, appeals from a judgment of conviction for possession of cocaine with the intent to deliver and for possession of cocaine in an amount between one ounce and one kilogram. Specifically, the defendant challenges the denial of his motion to suppress evidence seized from his home, arguing that the affidavit underlying the warrant
On July 27, 2007, David Silva, a narcotics detective for the Pawtucket Police Department, executed a search warrant at defendant's residence, located at 111 Freight Street, Apartment 4, in the City of Pawtucket.
The defendant was subsequently charged by information with possession of cocaine with intent to deliver (count 1), possession of cocaine in an amount between one ounce and one kilogram (count 2), distributing and/or manufacturing cocaine within three hundred yards of a school (count 3), and maintaining a narcotics nuisance (count 4).
At a hearing on May 12, 2009, Det. Silva testified that the execution of the search warrant for defendant's residence "was the culmination of an illegal street distribution of cocaine." The affidavit upon which the search warrant was based reads, in pertinent part, as follows:
After hearing arguments from the state and defendant, the trial justice denied defendant's motion to suppress. A bench trial commenced later that same day, which resulted in a finding of guilt on both of the remaining counts.
"When reviewing a trial justice's decision granting or denying a motion to suppress, `we defer to the factual findings of the trial justice, applying a clearly erroneous standard.'" State v. Storey, 8 A.3d 454, 459-60 (R.I.2010) (quoting State v. Flores, 996 A.2d 156, 160 (R.I.2010)). "Our review of `a trial justice's determination of the existence or nonexistence of probable cause' necessitates de novo treatment." Id. at 460 (quoting Flores, 996 A.2d at 160). This Court must, however, accord great deference to the trial justice's probable-cause determination, "so long as there is a showing of `a substantial basis from which to discern probable cause.'" Id. (quoting State v. Byrne, 972 A.2d 633, 638 (R.I.2009)).
On appeal, defendant argues that the trial justice erred in denying his motion to suppress the evidence discovered by the police during a search of his residence because the affidavit upon which the search warrant was predicated did not demonstrate the requisite probable cause to support the warrant. Specifically, defendant argues that "the affidavit failed to provide direct or indirect facts from which reasonable inferences could be drawn that the instrumentalities of an alleged crime could be found * * * in [defendant's] home rather than his car." He also contends that "there is no information contained in the affidavit by which a magistrate could determine the [confidential] informant's veracity or reliability."
The defendant avers that "[t]he fundamental flaw in th[e] affidavit [supporting the search warrant for his residence] is that it does not explain why there was probable cause to believe that drugs or drug paraphernalia would be found at [his residence]." He contends that the information provided by the CI supports probable cause that drug dealing activities were taking place only from his vehicle, not from his home, because it lacks any "first-hand accounts of criminal activity connected to the home, [any] third-party information tying criminal activity to the home, [or any] demonstrable familiarity with the home or the activities of its inhabitants." He further maintains that the subsequent observations of Det. Silva do not establish probable cause since "[t]here are no specific allegations, or particularized information based on police surveillance, that the defendant [was] likely to keep drugs or drug paraphernalia in his home." Moreover, although recognizing that direct evidence is not necessary for a magistrate to find probable cause, defendant avers that "the affidavit in this case is devoid of even the more general information [that c]ourts have turned to" to establish a nexus "between a defendant's drug dealing and [his or her] home." Lastly, he postulates that the mere fact that a person is believed to be a drug dealer, without more, does not furnish probable cause to expect that drugs would be found in his or her home.
The defendant cites State v. Pratt, 641 A.2d 732, 737 (R.I.1994), to support his contention that the affidavit in his case lacked probable cause. He argues that probable cause was established there because "the informant lived in the same residence as the defendant and packaged and purchased drugs there," but that, in his case, the police did not observe defendant "in or near his residence," nor was his vehicle connected to his home. Therefore, according to defendant, probable cause to search his residence was lacking. He also attempts to distinguish his case from State v. Verrecchia, 880 A.2d 89, 96, 97 (R.I. 2005), in which a CI gave the police an exact location of where the illegal contraband was being stored, as well as the defendant's telephone number, which was used to call the defendant and complete an undercover buy. According to defendant,
Further, defendant attempts to distinguish his case from both United States v. Barnes, 492 F.3d 33, 37 (1st Cir.2007), and United States v. Angulo-Lopez, 791 F.2d 1394, 1398, 1399 (9th Cir.1986) (both holding that there was a nexus between the drug dealing activity and the defendants' homes from which they had been observed leaving) — cases that the trial justice relied upon in finding that probable cause existed within the affidavit. The defendant argues that the trial justice based his denial of defendant's motion to suppress "on a statement borrowed from case law rather than on an examination of the evidence[ — ]and lack of evidence[ — ]in the affidavit before him." The defendant contends that "the Barnes Court arrived by deduction at its conclusion after a logical and inferential examination of the facts present in the affidavit," whereas the trial justice in this case merely "relied upon the bare conclusion that street level drug dealers store their wares in their homes." He posits that the affidavit in his case is different from the one in Barnes because
The state counters that probable cause was properly established within the four corners of the affidavit and that the trial justice did not err in his determination that the search warrant was valid. The state, quoting United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir.1999), argues:
"The Fourth Amendment to the United States Constitution and article 1, section 6, of the Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of probable cause." Byrne, 972 A.2d at 637 (quoting Verrecchia, 880 A.2d at 94). "Probable cause must be ascertained within the four corners of the affidavit prepared in support of the warrant * * * and based on the totality of the circumstances presented in the affidavit." Id. at 638. "In making this determination, the issuing magistrate must review the affidavit and, based on the facts contained therein, together with the reasonable inferences that may be drawn from those facts, make a practical, commonsense determination as to whether `there is
In Byrne, this Court stated that "`[t]he requisite nexus between the criminal article or activity described in the affidavit and the place to be searched need not be based on direct observation.' * * * Rather, it `may be found in the type of crime, the nature of the * * * items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought in the warrant].'" Byrne, 972 A.2d at 640 (quoting Commonwealth v. Anthony, 451 Mass. 59, 883 N.E.2d 918, 926 (2008)). The defendant, quoting Byrne, 972 A.2d at 641, however, attempts to distinguish his drug-dealing case from Byrne, a video voyeurism case, by stating that, "[u]nlike drug dealing which often takes place in public on the open street and often involves multiple public interactions between various individuals, child pornography is by its very nature `a solitary and secretive crime.'" He further contends that "[g]iven the public, recurring, and non-solitary character of drug dealing, the `nature of the crime' analysis which guided th[is] Court in Byrne is inapplicable to the facts of this case."
The trial justice stated:
We concur with the analysis of the trial justice. Drugs must be stored and secreted, and we are of the opinion that the trial justice made a reasonable inference when he stated "that a drug dealer keeps his narcotics and * * * the paraphernalia for packaging for sale of such narcotics[] secreted in his residence." Here, the affidavit explicitly states that the CI reported the distribution of cocaine by a black male from 111 Freight Street, Apartment 4 in Pawtucket. The police then investigated and determined that the male described was defendant and that defendant resided at that address. Although not stating that the police directly observed defendant enter and exit this apartment to go sell drugs from his vehicle, we conclude that the totality of the
The defendant argues that the affidavit does not contain any information by which a magistrate could determine the CI's veracity or reliability because it does not state the basis of the CI's knowledge or history of reliability or set out the time frame for when the tip was received in comparison to when the investigation took place. Moreover, defendant alleges that "the use of an informant to conduct a controlled buy does not solve the affidavit's deficiencies because the confidential informant who participated in the controlled buy appears, again, to lack any indicia of reliability." Additionally, he contends that, because the affidavit did not state the date that the CI provided the tip, the information provided by the CI should be considered stale, and therefore, deficient as a basis upon which to make a probable cause determination.
"It is well settled that, under the totality-of-the-circumstances test, `an informant's veracity, reliability, and basis of knowledge remain highly relevant.'" State v. King, 693 A.2d 658, 661 (R.I.1997) (quoting State v. Ricci, 472 A.2d 291, 295 (R.I.1984)). "A deficiency in veracity or reliability, however, `may be compensated for * * * by a strong showing as to the [basis of knowledge], or by some other indicia of reliability.'" Id. (quoting Gates, 462 U.S. at 233, 103 S.Ct. 2317). "The totality-of-the-circumstances approach also recognizes the probative value of the `corroboration of details of an informant's tip by independent police work.'" Id. (quoting Gates, 462 U.S. at 241, 103 S.Ct. 2317).
To determine a search warrant's validity, "we examine whether there was `a substantial basis from which to discern probable cause' from the `totality of the circumstances' found within `the four corners of the affidavit prepared in support of the warrant.'" Storey, 8 A.3d at 461 (quoting Byrne, 972 A.2d at 638). "Although each piece of information may not alone be sufficient to establish probable cause * * *, `probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.'" Id. at 462 (quoting State v. Schmalz, 744 N.W.2d 734, 738 (N.D.2008)).
In the case under review, the detective received a tip from a CI that a black male was selling cocaine from 111 Freight Street, Apartment 4, in Pawtucket. A police investigation ensued, which revealed that the "black male" was defendant and that defendant did live at the address provided by the informant. Further, Det. Silva observed defendant driving around, making short stops with different people at different, discreet locations, primarily at night, which the detective stated was "consistent with street level distribution of narcotics." Although defendant argues that the detective's observations "seem[] to disprove the [CI's] tip — i.e. showed no evidence of any drug dealing from 111 Freight Street," we are satisfied that the detective's observations supported the CI's veracity, reliability, and basis of knowledge because they confirmed that defendant probably was selling drugs, as was alleged by the CI in the original tip.
We perceive no error in the trial justice's determination that the CI's tip was properly corroborated or that this corroborated tip, combined with defendant's recent sale of cocaine in a controlled buy, satisfied the probable cause requirement to support the warrant which authorized the search of defendant's residence.
Additionally, the defendant's argument that the undated tip presented "the possibility that the information received by the Detective was stale by the time the cursory investigation began" is unavailing. The affidavit states that the controlled buy, in which the defendant directly was observed by the police selling cocaine to the confidential informant, took place on a date between July 21, 2007, and July 27, 2007. The warrant was authorized, issued, and executed on July 27, 2007. In Storey, 8 A.3d at 462, we held that "the combination of an older tip, plus fresh evidence discovered close in time to the warrant application was sufficient to show that the tip was not stale and to establish probable cause." Even assuming the initial tip had withered, it obtained new growth when the police observed the defendant selling cocaine to the CI within one week of the application for the warrant. As such, we are satisfied that the recent controlled buy obviated any concern about the timeliness of the initial tip.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record of this case shall be remanded to the Superior Court.