COMMONWEALTH v. Denita D. GOFORTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is the Commonwealth's interlocutory appeal from the allowance of the defendant's motion to suppress evidence obtained from a search of a single-family home in Brockton (target residence). The motion judge concluded that the warrant affidavit failed to establish probable cause to search the target residence. We agree and therefore affirm.
Background. We summarize the facts contained in the affidavit, which was prepared by an experienced narcotics investigator. See Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 299 (2007), quoting Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (“our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit’ ”).
In May 2018 police received information from a confidential informant (CI) that a thin black man, around 5’8” in height, known as “Wiggy,” and a black woman, around 5’3” in height with blonde hair, were dealing drugs in Brockton. The CI stated that the woman was Wiggy's girlfriend or wife and that they lived together. According to the CI, Wiggy drove a red Mercedes and could be reached at a specific telephone number to arrange purchases of “crack” cocaine. The CI later identified a photograph of one William Wigfall as the dealer the CI knew as Wiggy and identified a photograph of the defendant as the woman dealing drugs with Wiggy. Police records revealed that the defendant lived at the target residence.
As part of the investigation, police supervised three controlled purchases. On all three occasions, the CI arranged the purchase with Wigfall via telephone in the affiant's presence. Police searched the CI for contraband and provided the CI with a sum of money before each transaction. The CI then gave Wigfall the prearranged amount of money at a designated location and received a white rock-like substance in return. After each transaction police conducted field tests of the rock-like substance, which returned positive for cocaine.
The details of the controlled purchases otherwise varied. For the first purchase, conducted on May 24, 2018, officers set up, at an unspecified time, at the designated location. Within ten minutes of the CI arranging the purchase, officers saw a red Mercedes arrive at the designated location and pull up to the CI. After the exchange, officers followed the Mercedes and observed it travel to the target residence and park in the driveway. They then saw the driver, whom the CI had confirmed was Wigfall, get out of the Mercedes and enter the target residence. A check of the license plate number revealed that the Mercedes was registered to a William Wigfall.
For the second controlled purchase, conducted on May 29, 2018, a detective set up, at an unspecified time, at the target residence, where the Mercedes was parked in the driveway. Within fifteen minutes of the CI arranging the purchase, the detective observed the Mercedes leave and “head in the direction” of the designated location. Around five minutes later, other officers observed the Mercedes arrive at the designated location and pull up to the CI. “Within an hour” of the exchange, officers saw the Mercedes back in the driveway of the target residence.
On June 5, 2018, the day before the third controlled purchase, police conducted surveillance at the target residence. Around 7:15 p.m. an officer observed Wigfall leave the target residence, get into a blue Toyota Camry that was parked in the driveway, and drive away.2 Police also observed (on an unspecified day and time) a yellow BMW, which was registered to a William Wigfall, parked in the driveway of the target residence.
On June 6, 2018, at around 8:00 a.m., police again observed the Camry parked in the driveway of the target residence. At some unspecified time later that day, the CI arranged the third purchase with Wigfall. Officers set up at the designated location and, within ten minutes of the call, saw the Camry arrive and pull up to the CI. “Later that evening,” police observed the Camry back in the driveway of the target residence.
Discussion. “It is established that, in drug cases such as the present one, the affidavit accompanying a search warrant application must contain facts sufficient to demonstrate that there is probable cause to believe that drugs, or related evidence, will be found at the location to be searched.” Commonwealth v. Pina, 453 Mass. 438, 440 (2009). Where, as here, 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 [a suspect's] drug-selling activity and his residence to establish probable cause.’ ” Id. at 440-441, quoting O'Day, 440 Mass. at 304. Although there is no “bright line rule” governing the analysis, Commonwealth v. Escalera, 462 Mass. 636, 643 (2012), cases have held that a single observation of a suspect leaving a residence to travel to a controlled purchase is, standing alone, insufficient to establish the requisite nexus. See Pina, supra at 441-442; Commonwealth v. Medina, 453 Mass. 1011, 1011 (2009); Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908 (2003). Such an observation may support a finding of probable cause when combined with other information, however, such as statements made by credible informants. See Escalera, supra at 644.
The affidavit in this case, which describes a single observation of Wigfall leaving the target residence to go to a controlled purchase, does not demonstrate a sufficient nexus between his drug-dealing activity and the target residence. Only during the second controlled purchase did police observe Wigfall leave the target residence to travel to the designated location. Wigfall's return to the target residence after the first controlled purchase is “some evidence that [he] was using the premises as a base of operation,” but is less significant than his “location immediately prior to the sale.” Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013). Otherwise, the officers’ observations during the controlled purchases add little, if anything, to the nexus determination. Although police saw the Mercedes at the target residence “[w]ithin an hour” of the second controlled purchase, the affidavit does not establish that Wigfall traveled there directly after the exchange. Similarly, police saw the Camry at the target residence on the morning of the third controlled purchase and at an unspecified time after the exchange, but the affidavit does not state when the exchange occurred and contains no observations of Wigfall traveling either directly from the target residence or directly to the target residence afterward. Therefore, the affidavit shows only that Wigfall left the target residence to go to one controlled purchase and traveled to the target residence after another. These facts alone do not establish a nexus between Wigfall's drug activities and the target residence. See Pina, 453 Mass. at 441-442 (single observation of suspect leaving residence to travel to controlled purchase insufficient to establish nexus); Medina, 453 Mass. at 1011 (similar); Smith, 57 Mass. App. Ct. at 908 (single observation of suspect leaving residence to travel to one of three controlled purchases insufficient to establish nexus).
Nor does the affidavit contain sufficient supplementing information to demonstrate the required nexus. See Escalera, 462 Mass. at 644. This is not a case where the CI's tip connected the drug activity to the target residence. Nothing in the tip suggested that the CI had been to the target residence or that Wigfall stored drugs there. See Smith, 57 Mass. App. Ct. at 908. To the contrary, the affidavit is devoid of any mention that the CI identified the target residence or described where Wigfall was keeping the drugs.
This case is also not like those where the affidavit warranted an inference that the suspect had access to large amounts of drugs and was therefore likely keeping them somewhere other than in his car or on his person. Cf. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 106-107 (2007). The affidavit here contains no information about the amount of drugs obtained by the CI from Wigfall. Nor does it contain information suggesting that Wigfall possessed additional drugs on his person after the controlled purchases. Cf. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 298-299 (2009). The affidavit also does not aver that the CI purchased drugs from Wigfall in the past, let alone provide details about the amounts that Wigfall previously sold. See Pina, 453 Mass. at 442.
Moreover, even if the affidavit warrants an inference that Wigfall had access to large amounts of drugs, it does not contain sufficient information to permit a conclusion that the target residence was Wigfall's home and thus that he likely stored drugs there.3 The affidavit does not reference any documents connecting Wigfall to the target residence. While the affidavit states that two cars were registered to Wigfall, it notably omits to mention the addresses listed on the registrations. And although police saw Wigfall or his cars at the target residence on a few occasions, they made no observations that would suggest that Wigfall remained there overnight or for any continuous period of time. Cf. Escalera, 462 Mass. at 641 (owner identified defendant as resident of target apartment); Luthy, 69 Mass. App. Ct. at 104 n.5 (car registered to defendant at target address).
At oral argument the Commonwealth pointed to the affidavit's reference to police documents indicating that, when officers responded to a “[f]amily disturbance” in 2011, the defendant told them that she was married to Wigfall. But the officers responded to a home other than the target residence, and the defendant's statement about her marital status seven years earlier is of little relevance to whether Wigfall was living with her at the target residence at the time of the investigation.4 Thus, even if we can infer from the affidavit that Wigfall had access to a large quantity of drugs, it does not follow that he was storing them in the target residence, where the affidavit does not reasonably permit a conclusion that he was living there.
Order allowing motion to suppress affirmed.
2. The affidavit indicates that the Camry was registered in Pennsylvania but does not list either a name or address associated with the registration.
3. We acknowledge that the affidavit need not show that the suspect has a legal relationship to the premises in order to establish probable cause. See Clagon, 465 Mass. at 1007. Still, however, the suspect's relationship to the premises is relevant to the question of “whether evidence is likely to be found there.” Id.
4. Likewise, the CI's bare statement that the defendant and Wigfall lived together adds little to the nexus determination, where the CI made no mention of the target residence.
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