Commonwealth v. Kevin Smyth. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-761
COMMONWEALTH
vs.
KEVIN SMYTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this interlocutory appeal1 from an order allowing the
defendant's motion to suppress,2 the Commonwealth argues that the
judge erred in concluding that the affidavit supporting the
application for a warrant did not establish probable cause to
search the defendant's home for evidence connected to the
distribution of marijuana. Because we agree with the judge that
1 A single justice of the Supreme Judicial Court allowed the
Commonwealth's application, pursuant to Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017), for leave to pursue an
interlocutory appeal in the Appeals Court.
2 The defendant moved to suppress items obtained from a search of
his residence pursuant to a warrant, which included twenty-three
pounds of a "green vegetable matter," forty pounds of various
products containing tetrahydrocannabinol (THC) (including edible
marijuana), financial documents, $2,000 in cash, a letter of
standing from the Bank of Newport, and a black Apple iPhone.
the affidavit did not adequately establish probable cause, we
affirm.
Under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights, a search warrant may issue only on a showing of probable
cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007).
In evaluating whether a warrant application establishes probable
cause, our inquiry "always begins and ends with the 'four
corners of the affidavit.'" Commonwealth v. O'Day, 440 Mass.
296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App.
Ct. 426, 428 (1995). "To establish probable cause to search,
the facts contained in an affidavit, and reasonable inferences
that may be drawn from them, must be sufficient for the
magistrate 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. Walker, 438
Mass. 246, 249 (2002), quoting Commonwealth v. Donahue, 430
Mass. 710, 712 (2000). Probable cause does not require
definitive proof of criminal activity. Instead, "[t]he basic
question for the magistrate, when evaluating an affidavit
supporting an application for the issuance of a search warrant,
is whether there is a substantial basis on which to conclude
that the articles or activity described are probably present or
2
occurring at the place to be searched." Commonwealth v. Spano,
414 Mass. 178, 184 (1993). "Probable cause to search a
particular location for contraband requires a timely, as well as
a substantial, nexus to the illegal activity." Commonwealth v.
Pina, 453 Mass. 438, 442 (2009).
A central component of the affidavit at issue in this case
was information provided by a confidential informant (CI).
"Under the Aguilar-Spinelli standard, if an affidavit is based
on information from an unknown informant, the magistrate must
'be informed of (1) some of the underlying circumstances from
which the informant concluded that the contraband was where he
claimed it was (the basis of knowledge test), and (2) some of
the underlying circumstances from which the affiant concluded
that the informant was "credible" or his information "reliable"
(the veracity test).'" Commonwealth v. Upton, 394 Mass. 363,
374-375 (1985), quoting Aguilar v. Texas, 378 U.S. 108, 114
(1964). "In general, the basis of knowledge prong is satisfied
where the information provided springs from an informant's
firsthand observations or knowledge." Commonwealth v. Arias,
481 Mass. 604, 618 (2019). "[I]n the absence of a statement
detailing the manner in which the information was gathered, it
is especially important that the tip describe the accused's
criminal activity in sufficient detail that the magistrate may
know that he is relying on something more substantial than a
3
casual rumor circulating in the underworld or an accusation
based merely on an individual's general reputation."
Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting
Spinelli v. United States, 393 U.S. 410, 416 (1969). "If the
informant's tip does not satisfy each aspect of the Aguilar
test, other allegations in the affidavit that corroborate the
information could support a finding of probable cause." Upton,
supra at 375, citing Spinelli, supra at 415. "[E]ach element of
the test must be separately considered and satisfied or
supplemented in some way." Upton, supra at 376.
With these general principles in mind, we turn to the
contents of the affidavit at issue in this case. On February
22, 2021, a detective from Newport, Rhode Island (detective)
contacted a Massachusetts State Police trooper (trooper) with
information the detective had received from the CI, whose
identity was known to the detective, about an individual
distributing marijuana in and around Fall River. According to
the CI, "Kevin Smyth of 44 Russell Street sold marijuana by the
pound and stored it inside his residence for distribution.
Recently, [the CI] had observed Kevin in possession of seventeen
pounds (17 lbs.) of marijuana and several firearms and believed
he was storing those items in his house." On a previous
occasion, the CI had provided information to the detective that
led to the seizure of an illegally possessed firearm.
4
Upon receiving this information from the detective, the
trooper located the defendant's driver's license record, which
indicated that he lived at 44 Russell Street, a two-family
residence. The trooper's further investigation showed that the
defendant did not have a criminal record, and that there were no
records of previous police interactions with him. The defendant
did not have an active license to carry or conceal a firearm.
Nor did he have a license to grow marijuana in Massachusetts.
The trooper also discovered that the defendant owned both units
of 44 Russell Street, which he had purchased in 2018.
Investigators subsequently executed a "trash pull" at the
defendant's residence on February 26, 2021. There were two bins
outside of 44 Russell Street: one for trash and one for
recycling. Four bags filled with rubbish were pulled from the
trash bin. Inspection of the contents revealed three clear,
plastic, heat-sealed bags, cut open and empty. "Each bag had a
strong odor of unburnt marijuana," a scent the trooper
recognized from his training, knowledge, and experience. The
trooper recognized these bags as a common form of packaging
marijuana in pounds, and opined that three pounds of marijuana
is not consistent with personal use. In addition to the plastic
bags, investigators found a letter of standing addressed to the
defendant; the letter and the plastic bags were seized as
evidence.
5
A few days later, on March 1, 2021, troopers surveilled 44
Russell Street for one-half hour and saw the defendant call a
dog into the left side of the house. Fifteen minutes later, the
defendant was seen leaving the house with a small child and a
car seat in hand. Based on this information, the trooper
applied for and was granted a warrant to search the left side
unit of 44 Russell Street for evidence of unlawful marijuana
distribution.3
The Commonwealth argues that the affidavit satisfied both
prongs of Aguilar-Spinelli. We disagree. Specifically, the
affidavit did not sufficiently establish the basis for the CI's
belief that marijuana was stored in the defendant's home.
Although the CI stated that the CI saw the defendant with
seventeen pounds of marijuana and several firearms, the CI did
not say that the CI saw them in the defendant's home. Instead,
the affidavit merely stated that the CI "believed" that the
marijuana was stored in the defendant's home. See Pina, 453
Mass. at 441, quoting O'Day, 440 Mass. at 304 ("there must be
specific information in the affidavit . . . to provide 'a
sufficient nexus between the defendant's drug-selling activity
3 Sought evidence included marijuana; books, records, and cell
phones containing evidence of past and future drug transactions;
and money used or intended for use in the distribution of
marijuana, including any money believed to be the proceeds of
the unlawful sale or distribution of marijuana.
6
and his residence to establish probable cause to search the
residence'").4
The Commonwealth acknowledges, appropriately, that the CI's
"belief" without an identified basis of knowledge, standing
alone, was insufficient to establish probable cause that drugs
were to be located in the defendant's residence. Nevertheless,
the Commonwealth argues that the subsequent police investigation
supplied sufficient corroboration to overcome the missing basis
of knowledge for the CI's belief. We are not persuaded. To
begin, almost all the information gathered during the
investigation merely corroborated innocent details such as the
defendant's name and residence, which were matters of public
record. "Corroboration of innocent details is normally less
significant in establishing probable cause than corroboration of
facts suggestive of criminal conduct." Commonwealth v. Bottari,
395 Mass. 777, 784 (1985). Moreover, although the empty heat-
sealed bags smelling of unburnt marijuana located in the trash
bin were corroborative to a degree, without more, they were not
enough to elevate the CI's unsubstantiated belief to something
4 Deciding as we do, we need not, and do not, consider whether
the CI's reliability was sufficiently established by having
previously provided information leading to the seizure of an
illegal firearm together with the fact that the CI's identity
was known to the detective. But even assuming that the CI's
information was reliable, it was nonetheless insufficient to
establish probable cause.
7
akin to knowledge with an identified basis. See Arias, 481
Mass. at 618 (CI's information must be based on firsthand
observations or knowledge). This case is weaker than
Commonwealth v. Matias, 440 Mass. 787 (2004), where the CI had a
firsthand basis of knowledge from his history of purchasing
pounds of marijuana from the defendant. Furthermore, the CI's
information was tied to the defendant's residence by the
discovery of a "large amount" of plastic wrap containing an
herbal substance believed to be marijuana, as well as many large
baggies containing an herbal substance that tested as marijuana,
in the trash outside the defendant's residence, together with
paperwork bearing the defendant's name and address. Matias,
supra at 789-790. Here, as we have already said, the affidavit
contained no stated basis for the CI's belief that drugs were
stored at the defendant's residence, and the three ripped
8
plastic bags in the trash were materially less corroborative
than the evidence delineated in Matias.
Order allowing motion to
suppress affirmed.
By the Court (Wolohojian,
Neyman & Smyth, JJ.5),
Clerk
Entered: March 16, 2023.
5 The panelists are listed in order of seniority.
9