COMMONWEALTH v. ZERKEL (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant and her husband, David Maglio, live at a residence in Hull. Pursuant to a search warrant, Hull police uncovered a large marijuana-growing operation at the house. The application for the search warrant was supported by a detailed affidavit signed by Hull Police Detective Craig Lepro. After the Commonwealth filed a complaint in District Court charging the defendant with distribution of a class D substance and conspiracy,² the defendant moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-156 (1978).³ Specifically, the defendant alleged that Lepro's affidavit included three false statements made either knowingly and intentionally, or with “reckless disregard for the truth.” Id. at 155. Following a nonevidentiary hearing, a District Court judge denied the motion, and then denied a subsequent motion for reconsideration without a hearing.⁴ Before us now is the defendant's interlocutory appeal of those orders, which a single justice of the Supreme Judicial Court allowed the defendant to bring. For the reasons that follow, we affirm.

Background. All of the following facts were set forth in Lepro's affidavit. We reserve for later discussion the three alleged misstatements.

The Hull police began their investigation based on information provided by Vinicio Albuquerque. Albuquerque had been arrested by Danvers police for various drug charges after he had been found in possession of approximately fifteen pounds of marijuana in a motel room located in that town. While in custody, Albuquerque told the Essex County Sheriff's Office that the marijuana belonged to Maglio (the defendant's husband) who operated a large-scale marijuana cultivation operation at his home in Hull. The Sheriff's Office passed this information along to the Hull police.

Lepro confirmed that the defendant owned the Hull home and apparently lived there with Maglio. Surveilling the property, Lepro was able to detect the smell of unburnt marijuana fifty feet away from the house. Lepro also checked utility records and noticed that the home used electricity at an exceptional rate compared to other homes in the area.⁵ The rate of electricity consumption also appeared to rise and fall over time. Based on his training and experience, Lepro knew that such high, cyclical electricity usage was consistent with indoor gardening using grow lamps, fans, and humidifiers. Checking probation records, Lepro learned that Maglio had an extensive criminal record, including one hundred and thirty-six adult appearances (in addition to eight as a juvenile). Those charges included an open case alleging he was involved with an illegal growing operation in Rutland.

Discussion. To demonstrate an entitlement to a Franks hearing, a defendant must meet both prongs of a two-pronged test. First, she must make a prima facie showing that the affiant included falsehoods in his affidavit that he made knowingly and intentionally or with reckless disregard for their truth. Franks, 438 U.S. at 155-156. Second, the defendant must demonstrate that any such falsehoods were “material” in the sense that the affidavit would not have supplied probable cause for the search warrant if the falsehoods were excised. Id. at 156, 169. We address these prongs in turn.

Prong one. The defendant alleges that Lepro knowingly or recklessly included three falsehoods in his affidavit. The first, which was made in an apparent effort to boost Albuquerque's reliability, was a statement that Albuquerque had provided Boston police reliable information with respect to an illegal drug processing laboratory in West Roxbury. The Boston police report regarding the discovery of the West Roxbury lab makes plain that, while Albuquerque was implicated in the incident, the Boston police did not learn of the illegal lab from him.⁶ The statement to the contrary therefore was false.

It does not necessarily follow that Lepro made this false statement intentionally or with reckless disregard. We note that the true means by which the Boston police learned about the West Roxbury operation is established in a Boston police search warrant application, and nothing in the limited record before us indicates that Lepro ever read that application. If anything, Lepro's affidavit seems to indicate that he primarily was relying on a Danvers police report that laid out the events in West Roxbury more obliquely. Nevertheless, we assume arguendo that the defendant made out a prima facie case that Lepro acted knowingly or with reckless disregard for the truth of his statement regarding Albuquerque's role in the West Roxbury incident.

The other two alleged misstatements both relate to whether Maglio had a medical marijuana license. That issue potentially was relevant because, at least at the time, those in possession of such a license legally could grow up to a sixty-day supply of marijuana for their personal use. See St. 2012, c. 369, § 4. By regulation, a sixty-day supply is presumed to be ten ounces or less.⁷ 105 Code Mass. Regs. § 725.004 (2016).

In his affidavit, Lepro stated that after searching the grow house found in Rutland, the Rutland police had found probable cause that Maglio did not possess a medical marijuana license. This statement appears to be false. According to the Rutland police's report, they were not aware of Maglio's association with the home where the illegal grow operation was located prior to searching it. After the Rutland police searched the home, they learned of his association with the home and spoke to Maglio's mother, who told them that he did possess a medical marijuana card. The Rutland police determined that, in any event, the amount of marijuana they had found at the home exceeded the amount that even a medical marijuana licensee could lawfully possess. There was no further investigation at that time into Maglio's licensure status. Again, it does not necessarily follow that Lepro made this false statement intentionally or with reckless regard, but for purposes of our analysis, we assume that Lepro's statement about the Rutland police also met the first prong of the Franks test.

The third and final alleged false statement in Lepro's affidavit was that “Maglio does not have any Massachusetts record of ․ Medical Marijuana Registration.” The defendant argues that this statement was false and that Lepro made that statement at least with reckless disregard for its truth. In support of that argument, the defendant points to records about the particular manner in which the Hull police searched the relevant electronic database to try to determine whether Maglio had a medical marijuana license.⁸ Those records appear to indicate that those conducting the search entered into the search field for Maglio's mother's maiden name various names that they knew, or should have known, were almost certainly incorrect. While those records do indeed reveal that curious search choices were made, this alone hardly demonstrates that Lepro acted with reckless disregard.⁹ At the same time, we note that Lepro stated with seeming definitiveness that “Maglio does not have any Massachusetts record of ․ Medical Marijuana Registration.” At a minimum, the better, more accurate, course would have been to state that particular searches of the State database did not reveal that Maglio had a medical marijuana license. Some argument can be made that Lepro intended to mislead the clerk-magistrate by connoting that the police had performed an exhaustive search or obtained a definitive result. As with the other alleged falsehoods, we assume arguendo that this statement also satisfied the first prong of Franks.

Second prong. The motion judge determined that even if the statement about Albuquerque's role with respect to the West Roxbury incident were excised, there still would be probable cause. We agree. We also conclude that probable cause still would have existed even if all three alleged falsehoods were excised.

The defendant argues that without the false statement that Albuquerque had informed the Boston police about the West Roxbury drug lab, Albuquerque's reliability was not established pursuant to the familiar Aguilar-Spinelli test. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). Albuquerque was not an anonymous tipster; he was an identified individual providing information based on apparent personal knowledge. See Commonwealth v. Freiberg, 405 Mass. 282, 297 (1989), cert. denied, 493 U.S. 940 (1989) (“The strict requirements [applicable to] anonymous informant's trustworthiness are relaxed with respect to named and identified sources”). Moreover, Albuquerque's statements implicated him in Maglio's illegal operations, making what he told the Sheriff's Office statements against penal interest. See Commonwealth v. Atchue, 393 Mass. 343, 348 (1984), and cases cited. In addition, the Hull police corroborated much of the information that Albuquerque had provided, including that marijuana was being grown at the Hull home. See Commonwealth v. Lyons, 409 Mass. 16, 19-20 (1990) (reliability of informant may be supplied by independent police corroboration).

Of course, the mere presence of marijuana being grown at the Hull home does not, by itself, establish probable cause to believe that this operation was illegal. See Commonwealth v. Canning, 471 Mass. 341, 352-353 (2015). But the Lepro affidavit established probable cause regarding the illegality of the Hull growing operations regardless of whether Maglio had a medical marijuana license, rendering statements about that issue immaterial. Albuquerque was found in possession of some fifteen pounds of marijuana, an amount that was an order of magnitude above what was allowed under a medical marijuana license, which he told police belonged to Maglio.¹⁰ Notably, even had the amount found in Albuquerque's possession been less than ten ounces, Maglio's providing it to Albuquerque would have constituted illegal distribution. Contrast Commonwealth v. Jackson, 464 Mass. 758, 764 (2013) (“social sharing” of marijuana “joint” does not amount to illegal distribution). On top of this, Lepro was aware that Maglio was facing charges for the illegal grow operation in Rutland. Thus, even without the three alleged false statements, Lepro's affidavit provided ample support for probable cause to believe that Maglio was operating an illegal marijuana grow operation at the Hull home where he and the defendant lived.

Article 14. One issue remains. As the defendant accurately points out, the Supreme Judicial Court issued an opinion in 1981 that, in dicta, raised the possibility that in a future case, it might recognize -- under art. 14 of the Declaration of Rights of the Constitution of the Commonwealth -- a standard of materiality that was stricter than that of Franks. Commonwealth v. Nine Hundred & Ninety-Two Dollars, 383 Mass. 764, 768 (1981). In other words, the court signaled that in a particular case, an intentional falsehood included in a search warrant affidavit might warrant suppression of the evidence found even if probable cause would have existed if that statement was excised. Id. Four decades have now passed since the court issued that dicta, and the court has neither adopted nor rejected the potential interpretation that it flagged.

The defendant urges us to adopt such an interpretation of art. 14 in this case, or at least to order a remand for the purpose of developing a fuller factual record for the Supreme Judicial Court to examine whether to do so. With due consideration for our limited role as an intermediate appellate court, we deny both forms of that request.

Disposition. We affirm the order, dated September 27, 2018, denying the defendant's motions for a Franks hearing and to suppress. We also affirm the order, dated February 25, 2019, denying the motion for reconsideration of that order.

So ordered.

affirmed

FOOTNOTES

2.   The conspiracy charge eventually was dismissed at the Commonwealth's request.

3.   The defendant also filed a motion to suppress based on the facial insufficiency of the search warrant. Although the defendant's notice of appeal encompasses so much of the order as denied that motion, the defendant's brief makes no argument with respect to it.

4.   The motion for reconsideration was based in significant part on the fact that the judge addressed only one of the three alleged falsehoods on which the defendant was relying. Without explanation, the judge still did not address the other two in his decision denying the motion for reconsideration. The parties debate whether the judge implicitly rejected the two additional arguments or simply neglected to examine them. We need not resolve that specific debate, because we are unpersuaded by the defendant's additional arguments in any event.

5.   For example, the monthly electricity bill for the home owned by the defendant and Maglio in December of 2015 was $2,474.35. The highest monthly bill for a comparably sized residence in that area for the same time period was $462.34.

6.   The Boston police happened on the operation while responding to a report of an ongoing altercation between Albuquerque and another man.

7.   The regulations now permit registered qualifying patients to grow up to twenty-four plants. See 935 Code Mass. Regs. § 501.140(3)(c) (2021).

8.   In fact, this misstatement, like the second, may rest on Lepro's apparent misreading of the Rutland police report.

9.   This is particularly true where certain key details about how the search engine works are missing from the record before us. For example, the record does not reveal whether the mother's maiden name field is a so-called “required field,” or whether an incorrect entry in that field necessarily would yield a “no records” search result.

10.   To be clear, we acknowledge that the Supreme Judicial Court has stated that the smell of unburnt marijuana alone is not enough to establish even reasonable suspicion that marijuana is present in a criminal amount, even if the odor is characterized as “strong” or “very strong.” See Commonwealth v. Locke, 89 Mass. App. Ct. 497, 503-504 (2016) (collecting cases). The case before us does not turn on Lepro's being able to smell unburnt marijuana fifty feet away from the defendant's home; there was ample other evidence establishing probable cause of the illegalities of the operations there.