COMMONWEALTH v. ADY ALVES (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant's “four corners” motion to suppress, which challenged the sufficiency of the search warrant application, was denied after a nonevidentiary hearing. The defendant's second motion to suppress, which challenged the validity of the “no-knock” provision of the search warrant, was denied after an evidentiary hearing. Thereafter, pursuant to Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019), the defendant conditionally pleaded guilty to unlawful possession of a firearm by a person previously convicted of violent crimes or serious drug offenses, unlawful possession of ammunition, improper storage of a firearm, and trafficking in eighteen or more grams of cocaine. On appeal, he claims error in the denials of his motions to suppress. We affirm.

1. The “four corners” motion to suppress. The defendant claims that the search warrant application failed to provide timely information to establish probable cause to believe that drugs would be inside the target residence at the time the search was conducted. We disagree.

“For probable cause to arise, the facts contained in an affidavit, plus the reasonable inferences that may be drawn from them, must allow the magistrate to determine 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” (citation omitted). Commonwealth v. Guastucci, 486 Mass. 22, 25 (2020). Review of a probable cause determination is limited to the four corners of the warrant affidavit and any attachments thereto. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In our assessment of whether probable cause exists, “we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.” Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). Accordingly, we consider the statements in the warrant affidavit in a “commonsense manner,” Commonwealth v. O'Day, 440 Mass. 296, 299 n.4 (2003), and consider the warrant affidavit “as a whole, without overly parsing or severing it, or subjecting it to hypercritical analysis” (quotation and citation omitted). Perkins, supra at 102. See Commonwealth v. Burt, 393 Mass. 703, 715 (1985) (affidavit's sufficiency decided “on the basis of a consideration of all of its allegations as a whole, and not by first dissecting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone” [citation omitted]).

The defendant's argument turns on his reading of the following two provisions in the affidavit in support of the search warrant:

“During the week of March 20, 2016, the undersigned spoke with [CI-1] who informed me that it has been and continues to purchase [c]ocaine from a male it knows as ‘Ace’ who resides at 42 Princeton St 1st floor New Bedford․

“Within the past 72 [h]ours, CI-1 contacted me and informed me that it has purchased cocaine from Ady Barbosa Alves and observed some packaged for sale inside of the 1st floor apartment of 42 Princeton St New Bedford, MA.”

The defendant claims that these two sentences only establish when the affiant spoke with the confidential informant (CI), and not when the CI observed the cocaine inside the target residence. We disagree.

Contrary to the defendant's claim, the magistrate was entitled to read this provision in the context of the entire affidavit, which permitted reading the cited timeframe to have modified both when the CI informed the affiant as well as when the CI had last purchased cocaine from the defendant. In fact, in the provision cited above, the CI told the affiant that during the week of March 20, 2016, the CI had continued to purchase cocaine at the target residence, and the search warrant was signed and issued on March 29, 2016. The defendant's hyper-technical claim, which improperly dissects the above averments, must be rejected in favor of the magistrate's practical and commonsense reading of the affidavit. See Hason, 387 Mass. at 174; Commonwealth v. Javier, 32 Mass. App. Ct. 988, 988-989 (1992); Commonwealth v. McRae, 31 Mass. App. Ct. 559, 559 (1991).

2. The no-knock provision. The defendant also claims that the police lacked justification for a no-knock warrant where the affidavit failed to provide probable cause to believe that there was either a threat to officer safety or a concern that evidence might be destroyed. We disagree.

“The ‘knock and announce’ rule may be suspended when there is a risk that announcement of the officers’ presence would allow the destruction of evidence or put officer safety at risk.” Commonwealth v. Santiago, 452 Mass. 573, 575 (2008). See Commonwealth v. Jimenez, 438 Mass. 213, 216 (2002). “To set aside the rule, the Commonwealth must establish that there is probable cause to believe that, in the particular circumstances of the search to be undertaken, compliance would create one or both of those risks.” Santiago, supra.¹

Here, the affidavit articulated concerns of both evidence destruction and officer safety. These included that the CI had “observed some [cocaine] packaged for sale inside” the target residence “within the past 72 [h]ours,” and noted that the residence was situated on “the first floor.” As the motion judge properly concluded, such a location would make it easier for suspects to observe a police presence which could provide an opportunity to dispose of contraband. The affidavit also noted the defendant's prior conviction for distribution of narcotics and numerous prior arrests and arraignments on drug and firearm charges. From this, as the motion judge held, the magistrate could reasonably conclude that the defendant might be armed. In addition, given the affiant's extensive experience and expertise in narcotics and firearm enforcement, the affiant further concluded that due to the defendant's prior arrests, the defendant “may very well be aware of police tactics,” supporting the need for an unannounced entry.

These facts, combined with the affiant's expert opinion that the defendant may be aware of police tactics, provided probable cause for the magistrate to conclude that the defendant was potentially armed and might attempt to harm police or dispose of contraband if the officers knocked and announced. See Santiago, 452 Mass. at 578. See also Jimenez, 438 Mass. at 220 (history of weapons possession or violence relevant for no-knock warrant). The defendant's claim to the contrary is without merit.

Finally, the defendant claims that even if the magistrate properly issued the search warrant which dispensed with the knock and announce requirement, the police failed to make a threshold reappraisal of the circumstances they faced which justified disregarding the requirement. We disagree.

When police execute a no-knock warrant, they “must make a threshold reappraisal of the actual circumstances which they face on execution, since changed circumstances may render the previously obtained no-knock authorization no longer effective.” Commonwealth v. Jimenez, 53 Mass. App. Ct. 902, 903 (2001). However, “[r]eappraisal is not a formalistic exercise ․” Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 710 (2014).

Here, the circumstances had changed in that the defendant and his girlfriend were arrested prior to the execution of the search warrant, and the residence had been under surveillance for six hours without the police detecting any activity. As the motion judge properly determined, the record does not reveal that the police did not conduct a reappraisal. That is, even though the defendant was in custody, and despite having a no-knock warrant, the police nevertheless announced their identity and purpose as they entered the premises. At that point, as the motion judge held, requiring the police to knock before they entered would have been a “useless gesture” as the defendant already knew about the search warrant and its execution. See Commonwealth v. Antwine, 417 Mass. 637, 639 (1994). Furthermore, as the door was unlocked, and entry was made without violence, the policy objectives underlying the rule of protecting property and preventing unnecessary damage to the home were achieved.

Finally, as the motion judge held, there was no evidence presented that the police had any reason to believe that there would be sleeping children inside the residence or that knocking, where the defendant knew their purpose and of their presence, would have served any useful purpose. See Commonwealth v. Eller, 66 Mass. App. Ct. 564, 573 (2006) (“even if the method of entry did not adhere perfectly to the knock and announce requirement, it was sufficient to satisfy its objectives”). Accordingly, the search warrant was properly executed.

Orders denying motions to suppress affirmed.

FOOTNOTES

1.   Relying on outdated case law, the Commonwealth erroneously contends that the knock and announce requirement is not constitutionally based. Since 1995, the United States Supreme Court has recognized that the knock and announce requirement is a constitutional mandate. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). See also Santiago, 452 Mass. at 574-575 (noting that “knock and announce” rule, which arose from common law tradition, has been incorporated into Fourth Amendment to United States Constitution). The Commonwealth's error does not affect our decision.