COMMONWEALTH v. SOUSA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Jeffrey Sylvia was shot during the early morning of August 2, 2015, and found lying dead in the street near the intersection of Acushnet Avenue and Blackmer Street in New Bedford. The police suspected the defendant, Michael Sousa, and executed a search warrant at his home at 49 Acushnet Avenue. After he was indicted for murdering Sylvia, the defendant moved to suppress evidence seized from his apartment pursuant to the search warrant. A Superior Court judge allowed the defendant's motions, concluding that the police failed to establish probable cause for the search. Having obtained permission from a single justice of the Supreme Judicial Court, see Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), the Commonwealth brings this interlocutory appeal challenging the Superior Court judge's suppression order. Because we conclude that the supporting affidavit, sworn to by Massachusetts State Trooper Hollis Crowley, established probable cause to issue the warrant, we reverse.

Background. 1. Affidavit. We summarize Trooper Crowley's sworn statement because our de novo review of the sufficiency of a search warrant application begins and ends with the four corners of the affidavit supporting it. See Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). At about 1:41 a.m. on August 2, 2015, the New Bedford Police Department received a 911 call reporting that a man was bleeding and not moving, “possibly” on Blackmer Street. The investigating officers immediately found the twenty-four year old Sylvia suffering from an apparent gunshot wound to the head. His body was lying in the roadway across from 178 Blackmer Street, close to the intersection of Blackmer Street and Acushnet Avenue. The police secured the crime scene. Alongside the victim's body was a parked silver Honda sport utility vehicle (SUV), with the front passenger door and rear driver's side door wide open and the key in the ignition.² The police found a bullet casing behind the rear passenger's side tire of the SUV. Detectives assisted in the homicide investigation as did Trooper Crowley, then on assignment with the Bristol County Detective Unit.

While the police secured the crime scene, the defendant's mother tried to approach the victim's body out of concern that the victim was her son. Officer Brian Rei stopped her. At the direction of Officer Rei, and with the help of other Sousa family members, the mother returned to her home at 49 Acushnet Avenue where she “remained visibly upset.” Thereafter, Officer Rei observed the defendant walk out of the rear yard of 49 Acushnet Avenue. After making eye contact with Rei, the defendant retreated and went back behind his home. A few minutes later, the defendant walked out of his yard with a bottle of alcohol in his hand and asked Officer Rei if he could proceed “down the street.” The defendant then walked away from the scene.

At about 5 a.m. on August 2, Detective Paul Fonseca and Trooper Crowley spoke with members of the Sousa family inside their home. Different family members provided varying accounts as to the defendant's whereabouts on the prior evening. The defendant's mother and grandmother told the police that he “had been in the home briefly after the shooting.” The mother indicated that her son “was wearing a red hat when he left the apartment after the shooting.” She added that there was a home security video recording system at the family's apartment. The grandmother stated that the defendant kept some belongings in a “middle room” of the apartment as well as in a padlocked closet off of the kitchen. She added that the defendant had “access to all areas” of the apartment and its common area basement.

While Trooper Crowley and Detective Fonseca were speaking with the defendant's family, other police officers interviewed the owner of the silver Honda SUV that had been parked alongside the victim's body. The owner, Jayme Bertoldo, allowed the victim to borrow the SUV on the evening of August 1. At approximately midnight that night, Bertoldo received a phone call from the victim inquiring whether Bertoldo and his girlfriend needed a ride back home. The victim agreed to pick up Bertoldo and his girlfriend at the intersection of Coggeshall Street and County Street in New Bedford at 1 a.m. on August 2, and the three met as planned. Bertoldo told the police that two black men were also inside the SUV at that time. However, he later expressed some doubt whether the men were in the SUV at that particular time. In the course of the drive back to his home, Bertoldo overheard the victim “arguing on the phone with someone who owe[d] him twenty dollars.” After the defendant dropped off Bertoldo and his girlfriend at their home, the defendant agreed to return the SUV before 10 a.m. that same morning.

Detectives William Sauve and William Westgate interviewed a concerned citizen, Javier Rojas, immediately after the shooting. Rojas identified his home address, which was also his business address, and provided the police with other personal details. Rojas resided a “short distance” from the intersection of Acushnet Avenue and Blackmer Street. He informed the detectives that, while sitting on the front steps of his home, he observed a small, silver SUV being driven by a black man clad in a white T-shirt “circling” the area. The SUV's front passenger seat was unoccupied, a male and a female were seated in the SUV's rear passenger area, and Rojas's attention was drawn to this particular silver SUV because he “recognized the male rear seat passenger as [the defendant,] Michael Sousa.” Rojas explained that the defendant was seated behind the empty front passenger seat and was wearing a “grey hooded sweatshirt with the hood down and no hat.” Rojas had known the defendant since the defendant was a child, and Rojas knew that the defendant lived at 49 Acushnet Avenue.

Rojas described to the detectives the path he had seen the SUV travel and stated that he believed the SUV came to a stop or parked on Blackmer Street, in the area where the SUV was later discovered. Two or three minutes later, Rojas heard what he believed to be a single gunshot. This was consistent with a report received at 1:37 a.m. on August 2, by the police department's ShotSpotter system, of a single gunshot in the area of Blackmer Street. After hearing the shot, Rojas walked to Blackmer Street and observed the “same black male operator of the silver SUV” running away from the location. Rojas did not see the defendant, the woman who had been seated next to him in the SUV, or anyone laying in the street. Rojas returned to his home and walked back to Blackmer Street when the police and emergency personnel came on the scene. “At this time,” Rojas observed the defendant emerge from the rear area of 49 Acushnet Avenue “wearing a red shirt and a red baseball hat.”

On the basis of this information, Trooper Crowley obtained a warrant to search the first floor apartment at 49 Acushnet Avenue, including common areas and curtilage, for items including but not limited to ballistics, clothing, fingerprints, biological fluids, blood, hair, saliva, trace evidence, fibers, glass fragments, video surveillance, cell phones, and other electronic devices. On August 2, Trooper Crowley executed the warrant and seized, among other items, a digital video disc (DVD) system, clothing, and phones. The police identified those items that were seized from the apartment in the written search warrant return.

2. Prior proceedings. On September 24, 2015, the defendant was indicted for murder in the first degree, carrying a firearm without a license, armed robbery, and intimidation of a witness. The defendant filed two motions to suppress “any and all evidence seized on August 2, 2015” from his apartment at 49 Acushnet Avenue, including a “home security camera recording system, and the footage and images depicted thereon.” A judge allowed the motions after concluding that “the facts outlined in the affidavit do not lead to a reasonable inference [that] the defendant committed the shooting and that evidence from the shooting would be found in his home.”

Discussion. The Commonwealth claims error in the judge's conclusion that the information in Trooper Crowley's affidavit failed to establish probable cause to believe that evidence of the crime would be at 49 Acushnet Ave. We agree.

Probable cause “means a ‘substantial basis’ to conclude that ‘the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.’ ” Commonwealth v. Long, 482 Mass. 804, 809 (2019), quoting Commonwealth v. Alexis, 481 Mass. 91, 102 (2018). To be constitutionally sufficient, a search warrant affidavit must establish two elements: the commission of a crime and a link or “nexus between the crime and the items sought, and the location to be searched.” Id. Here, there is no question that Trooper Crowley's affidavit provided probable cause to believe a crime occurred.

In order to establish probable cause to search, the affidavit in support of a warrant request 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. Cefalo, 381 Mass. 319, 328 (1980), citing Zurcher v. Stanford Daily, 436 U.S. 547, 554-557 & n.6 (1978). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the magistrate], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Honneus, 390 Mass. 136, 141 (1983), quoting Jones v. United States, 362 U.S. 257, 271 (1960). The duty of the motion judge, or reviewing court, in this context, “is simply to ensure that the magistrate had a ‘substantial basis for ․ conclud[ing]’ that probable cause existed” Honneus, supra, quoting Jones, supra. A motion judge or reviewing court “should give great deference to the magistrate's determination of probable cause.” Commonwealth v. Upton, 394 Mass. 363, 377 (1985).

Mindful of these principles, we believe that the information contained in the affidavit provided a substantial factual basis from which the issuing magistrate could have concluded that there was a nexus linking the defendant to the criminal activity under investigation, and that there was a fair probability that evidence of that crime would be found in the defendant's nearby apartment. The affidavit detailed the following facts and circumstances: a concerned citizen eyewitness, who had long known the defendant, observed the defendant seated inside the silver Honda SUV, in the rear passenger seat (behind the unoccupied front passenger seat), minutes before the fatal shooting; the same silver Honda SUV was found (abandoned with the key still in the ignition and doors left wide open) at the crime scene, parked close to the victim's body; the police recovered a bullet casing behind the rear passenger's side tire of the SUV; the ShotSpotter system detected a single gunshot fired at 1:37 a.m., just minutes before a 911 caller reported to the police that a man was “bleeding” on the ground on Blackmer Street; and the same citizen eyewitness described the defendant's attire (grey hooded sweatshirt with the hood down and no hat) while inside the SUV and then observed the defendant emerge from the yard of his 49 Acushnet Avenue home in different clothing (red shirt and red baseball cap), the same clothing that had been described by the defendant's mother in her interview with the police.³ Probable cause to believe that the defendant was the shooter was not required where there was probable cause to search. See, e.g., Ewing v. Stockton, 588 F.3d 1218, 1226 (9th Cir. 2009). The two issues are analyzed separately. See Alexis, 481 Mass. at 102; Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 825 (2012).

There is no merit to the defendant's claim that Trooper Crowley's affidavit was insufficient because the information provided by Rojas did not satisfy the familiar Aguilar-Spinelli test for anonymous informants. See Spinelli v. United States, 393 U.S. 410, 415 (1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964). We have long “drawn a distinction” between anonymous informants and concerned citizens, like Rojas, who supply the police with information. Commonwealth v. Burt, 393 Mass. 703, 710 (1985). “The strict requirements of reliability which govern an analysis of an anonymous informant's trustworthiness are relaxed with respect to named and identified sources” such as Rojas. Commonwealth v. Freiberg, 405 Mass. 282, 298 (1989). Rojas provided information based on his personal observations of the events that immediately preceded the fatal shooting under investigation. Rojas's basis of knowledge is not credibly contested, and the magistrate could have concluded that Rojas's statements were reliable because the details were corroborated by other sources. Specifically, the defendant's mother corroborated Rojas's observations of the defendant after the shooting, including the clothes he was wearing, the police found the SUV in the precise location where Rojas saw it park or come to a stop, and the ShotSpotter system recorded a shot in the area of Blackmer Street at the same time that Rojas reported hearing one.

For these reasons and for the reasons set forth in the Commonwealth's submissions, the order of the Superior Court allowing the motions to suppress is reversed, and a new order is to enter denying the motions.

So ordered.

FOOTNOTES

2.   Trooper Crowley identified the vehicle's registration number.

3.   General Laws c. 276, § 1, provides in part that a search warrant may issue for “property or articles which are intended for use, or which are or have been used, as a means or instrumentality of committing a crime, including but not in limitation of the foregoing, any property or article worn, carried or otherwise used, changed or marked in the preparation for or perpetration of or concealment of a crime.” See Commonwealth v. Murray, 359 Mass. 541, 546-547 (1971).