COMMONWEALTH v. KLEIN (2021)

Appeals Court of Massachusetts.

COMMONWEALTH v. Michael KLEIN.

20-P-838

Decided: April 28, 2021

By the Court (Milkey, Hand & Grant, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was indicted for three drug offenses based on cocaine and other controlled substances discovered in an apartment in Fall River pursuant to a search warrant. He brought a motion to suppress in the trial court arguing that the affidavit submitted in support of the search warrant failed to establish a sufficient nexus between his suspected drug dealing and the apartment in question. When that motion was denied, he pleaded guilty while reserving the right to appeal from the order denying his motion. See Mass. R. Crim. P. 12 (b) (6), as amended, 482 Mass. 1499 (2019). Before us now is that appeal. We affirm.

Background. We draw the facts from the “four corners” of the affidavit filed in support of the application for a search warrant, reserving a few details for future discussion. Commonwealth v. Vasquez, 482 Mass. 850, 866 (2019). In September of 2018, the Fall River police department, working with State Trooper Keith Ledin, received information from a first-time informant that the defendant was distributing large amounts of cocaine in Fall River. Based on this tip, and the defendant's criminal record (which included convictions of possession with intent to distribute cocaine), the police began intensively surveilling the defendant's activities. They observed him using a particular car to engage in numerous suspected drug transactions. On his way to such interactions, the defendant drove in a manner that suggested he was trying to avoid being followed.

Beginning in November, the police began surveilling the defendant at a three-story residential building at 162 Cory Street. The defendant would leave that building shortly before suspected drug transactions, and typically return there afterwards.² Particularly notable were three controlled purchases the police set up using a second confidential informant. The defendant traveled to each of the three controlled purchases directly from 162 Cory Street, and for at least two of the transactions, he returned there directly thereafter.³ The defendant also stayed overnight at 162 Cory Street on multiple occasions.

There are three apartments at 162 Cory Street, one on each floor.⁴ The apartments share a common entrance. On two occasions, and with the use of binoculars, the police were able to observe the defendant inside the second-floor apartment immediately after he entered the building. Based on such observations and on his training and experience, Trooper Ledin concluded that the defendant was operating a “stash house” in the second-floor apartment.

Discussion. “Whether a search warrant is supported by probable cause is a question of law that we review de novo” (quotation and citation omitted). Vasquez, 482 Mass. at 866, quoting Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). “Our review is limited to the four corners of the affidavit, and any reasonable inferences drawn therefrom.” Vasquez, supra. The affidavit should not be “parsed, severed, and subjected to hypercritical analysis.” Commonwealth v. Blake, 413 Mass. 823, 827 (1992).

As the defendant correctly notes, a search warrant affidavit “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Escalara, 462 Mass. 636, 642 (2012), quoting Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

The facts connecting the defendant to the apartment building at 162 Cory Street are comparable to those of other cases in which appellate courts have found probable cause to search a residence. See, e.g., Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013) (fact that defendant left premises to make three controlled purchases established probable cause to believe that he had ready supply of illegal drugs stored there); Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 482-485 (2020). See generally id. at 488-492 (Henry, J., concurring), and cases cited. The showing provided in the affidavit here was enriched by the level of detail included with respect to the police surveillance.

The defendant argues in essence that even if there was probable cause to believe that he was operating a stash house at 162 Cory Street, there was an insufficient showing that he specifically was using the second-floor apartment there for that purpose. We disagree. As noted, the police were able to observe the defendant inside the second-floor apartment on two separate occasions. Nothing in the affidavit suggests that the defendant was seen inside the other two apartments at the building.⁵ While the defendant is correct that he theoretically could have gone to the second-floor apartment for other reasons, e.g., to water the plants of an absent tenant, the police need not rule out other possibilities in order to establish probable cause. See Commonwealth v. Hason, 387 Mass. 169, 175 (1982) (“Probable cause does not require a showing that the police resolved all their doubts”).

The fact that the police were aware that the defendant had close personal ties to the person who occupied the first-floor apartment, does not mandate a different result. “A warrant application need not ․ exclude any and all possibility that the items might be found elsewhere” (quotation omitted). Andre-Fields, 98 Mass. App. Ct. at 483, quoting Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013).

Nor does the fact that the utilities for the second-floor apartment were in someone else's name, mandate a different result. “[W]hether the suspect owns the premises, lives there, or merely conducts business there, the question is whether evidence is likely to be found there.” Andre-Fields, 98 Mass. App. Ct. at 483, quoting Clagon, 465 Mass. at 1007. As the affidavit itself states, “It is common for [d]rug dealers either [to] rent [stash houses] in other people's names, or [to] make some type of verbal or financial agreement with people they know. Drug dealers do this in order to disguise their criminal wrong doing from family and friends, protect themselves from being robbed, and to avoid and confuse [l]aw [e]nforcement.” The affidavit detailed police efforts to try to track down the person in whose name the utilities had been placed, and it provided specific reasons why the police concluded that the named person had died over a decade earlier. As a result, the fact that the utilities for the second-floor apartment were placed in the other person's name actually supported the trooper's belief that this was the apartment that the defendant was using as a stash house.

For the foregoing reasons, we conclude that the affidavit supplied probable cause to believe that illegal drugs were being stored in the second-floor apartment at 162 Cory Street.

Order denying motion to suppress affirmed.

FOOTNOTES

2.   The police learned this from direct observations or as a result of a global positioning system (GPS) device that they had placed on the defendant's car. The defendant makes no challenge to the warrants allowing the use of the GPS device.

3.   For one of the transactions, the affidavit does not provide information about where the defendant went after he sold cocaine to the confidential informant.

4.   The building also has apartments that front on Oregon Street and that have Oregon Street addresses. Those apartments are not implicated in this case.

5.   To be sure, as the defendant points out in his reply brief, the affidavit does not affirmatively state that the police never saw the defendant inside the other two apartments. Again, the affidavit is not to be “parsed, severed, and subjected to hypercritical analysis.” Blake, 413 Mass. at 827.Moreover, the affidavit appears to provide a comprehensive look at what the police learned through their investigation, as opposed to setting forth only those facts that supported their view that it was the second-floor apartment that the defendant was using as a base for his drug dealing. For example, as discussed below, the affidavit acknowledged that the defendant had close ties to the occupant of the first-floor apartment.