Commonwealth v. Lewis ( 2023 )

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21-P-1171 Appeals Court
COMMONWEALTH vs. JOSHUA LEWIS.
No. 21-P-1171.
Plymouth. April 10, 2023. – August 3, 2023.
Present: Milkey, Massing, & Henry, JJ.
Controlled Substances. Search and Seizure, Affidavit, Fruits of
illegal search, Hotel room, Probable cause, Reasonable
suspicion, Warrant. Constitutional Law, Search and
seizure, Reasonable suspicion. Probable Cause. Practice,
Criminal, Motion to suppress, Warrant, Affidavit.
Indictment found and returned in the Superior Court
Department on August 27, 2019.
A pretrial motion to suppress evidence was heard by Jeffrey
A. Locke, J., and a conditional plea of guilty was accepted by
William F. Sullivan, J.
Nancy Dolberg, Committee for Public Counsel Services, for
the defendant.
Joseph F. Janezic, III, Assistant District Attorney, for
the Commonwealth.
MILKEY, J. Pursuant to a search warrant, the Brockton
police discovered "crack" cocaine in the defendant's hotel room.
He pleaded guilty to possessing a class B substance, while
2
reserving his right to appeal the denial of his motion to
suppress the cocaine and other fruits of that search. Because
we conclude that the affidavit submitted in support of the
warrant supplied a sufficient nexus between the defendant's drug
dealing activity and the location to be searched, we affirm.
Background. The affiant, a seventeen-year veteran of the
Brockton police department, was contacted in April 2019 by a
confidential informant (CI), who informed him that the defendant
was selling crack cocaine out of an apartment in Brockton.
Brockton Housing Authority officers confirmed that the tenant of
the apartment was someone who had the same last name as the
defendant, and who "always ha[d] friends and family member [sic]
staying with him." As part of the investigation, the CI
conducted two controlled "buys" from the defendant at the
apartment. The controlled buys were arranged through the CI's
calling a particular telephone number that the CI identified as
belonging to the defendant. Based on these controlled buys, the
officer obtained a warrant to search the apartment. However,
when the officer went to execute the warrant, he learned from an
unidentified source that the defendant had "moved out of" that
apartment. The CI confirmed the defendant had "moved to the
downtown area of Brockton," even though the CI had "no idea" of
where the defendant specifically now was living.
3
Immediately thereafter, the officer received information
from an unidentified source that the defendant now was staying
in room 205 of a hotel in Brockton. The officer had his CI
contact the defendant, using the same telephone number as
before, to arrange another controlled buy. The CI was told by
the "male" voice who answered the telephone to meet him at a
particular location to purchase crack cocaine. The police then
observed the defendant leave the hotel on foot to travel to the
agreed-upon location. He was "under constant surveillance as he
made his way over toward[]" that location, with the police
losing sight of him only for what the officer characterized as
"seconds." After the controlled buy took place, the police
observed the defendant directly return to the hotel
(specifically in the direction of room 205). As with the first
two controlled buys, the officers followed the procedure set
forth in Commonwealth v. Desper, 419 Mass. 163, 168 (1994), and
the substance was field-tested positive for cocaine.
On May 1, 2019, the officer learned from the hotel's front
desk clerk that the defendant had checked into the hotel on
April 26, 2019, and confirmed that he in fact was staying in
room 205. After verifying the defendant's extensive drug-
related criminal history, the officer on May 2, 2019, obtained a
warrant to search that hotel room. There, the police
discovered, among other items, a plastic bag containing a hard
4
substance in seven individually wrapped portions and $694 in
cash.
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). "When that
location is a residence, there must be specific information in
the affidavit, and reasonable inferences a magistrate may draw,
to provide 'a sufficient nexus between the defendant's drug-
selling activity and his residence to establish probable cause'"
(citation omitted). Id. at 440-441.
Determining the sufficiency of an affidavit is not an
exercise in hermeneutics. Rather, its sufficiency "is to be
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.'" Commonwealth v. Jordan, 91
Mass. App. Ct. 743, 752 (2017), quoting Commonwealth v.
Santiago, 452 Mass. 573, 576 (2008). "An affidavit need not
show that evidence more likely than not will be found; it must
provide merely that quantum of evidence from which the
magistrate can conclude, applying common experience and
5
reasonable inferences, that items relevant to apprehension or
conviction are reasonably likely to be found at the location"
(quotations and citation omitted). Commonwealth v. Hayes, 102
Mass. App. Ct. 455, 462 (2023).
Turning to the case at hand, we begin by observing that the
three controlled buys within a two-week period well established
that the defendant was engaged in an illegal drug distribution
operation "and had access to a supply for sale." Commonwealth
v. Defrancesco, 99 Mass. App. Ct. 208, 212 (2021), citing
Commonwealth v. Escalera, 462 Mass. 636, 646 (2012). As the
affidavit also established, prior to the defendant's move, he
was selling crack cocaine out of the apartment. After his move,
the fact that the defendant travelled directly from the hotel to
the site of the third controlled buy on foot and returned
directly to the hotel thereafter provided the police a basis for
believing that evidence of his illegal drug operation could now
be found in his room there.1 See Commonwealth v. Young, 77 Mass.
1 We recognize that the hotel is a four-story structure that
included an unspecified number of rooms. Here, however, the
police confirmed with a hotel employee which room the defendant
was residing in at the time of the affidavit. See Commonwealth
v. Tapia, 463 Mass. 721, 726 n.9 (2012) (independent police work
corroborated that defendant lived in specific apartment unit and
made up for no direct observation of her entering or leaving
that unit). See also Commonwealth v. Diaz-Arias, 98 Mass. App.
Ct. 504, 508-509 (2020) (same). The defendant does not
challenge the reliability of the front desk clerk's information
(or, for that matter, the reliability of the unidentified other
source(s) of information that the defendant had moved from the
6
App. Ct. 381, 387 (2010) ("defendant's routine of walking
directly from his apartment to the point of sale, and returning
to his apartment immediately following the sale, raised a
reasonable inference that he kept a cache of drugs in his
[residence], which served as a base of operations for drug sales
that he conducted within walking distance of his residence").
To be sure, the cases establish that a single observation
of a defendant leaving his residence to travel to a controlled
buy, standing alone, is insufficient to establish a sufficient
nexus to that residence. See Escalera, 462 Mass. at 643; Pina,
453 Mass. at 441-442. See also Commonwealth v. Andre-Fields, 98
Mass. App. Ct. 475, 493-495 (2020) (Henry, J., concurring)
(collecting cases in Appendix). Here, however, there was
additional support for the requisite nexus. See Escalera, supra
at 644 ("A single observation of a suspect leaving his home for
a drug deal may also support an inference that drugs will be
found in the home where it is coupled with other information").
Most significantly, it is a reasonable inference that once the
defendant moved from the apartment to the hotel, his room there
apartment to the hotel). Contrast Commonwealth v. Ponte, 97
Mass. App. Ct. 78, 85-86 (2020) (affidavit did not provide nexus
to specific unit in apartment building that judge concluded
could have had from twelve to thirty-six rooms, where
confidential informant's veracity was not corroborated by
independent police work).
7
became his base of operations.2 Before applying for the search
warrant, the Commonwealth corroborated that inference by the
third controlled buy, as the affidavit explained.
We emphasize that the establishment of a nexus between the
defendant's drug operations and the apartment where he likely
had been living and, in any event, had been operating his
business, does not relieve the Commonwealth from having to
demonstrate a nexus between his drug operations and his new
residence. Indeed, the case law reflects a residence-by-
residence approach in which a search warrant affidavit must
establish a sufficient nexus for each place to be searched. See
Commonwealth v. Dillon, 79 Mass. App. Ct. 290, 295-296 (2011)
(affidavit established probable cause to search one residence
but not other).3 However, where, as here, there is evidence that
2 We acknowledge that the affidavit did not expressly state
that the defendant had been living at the apartment prior to his
"move." However, although our gaze is limited to the "four
corners" of the Commonwealth's application for a search warrant,
we may consider not only the averments directly set forth there,
but also any "reasonable inferences drawn from them."
Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). Moreover,
nothing in our analysis actually depends on whether the
defendant actually had been sleeping at the apartment or merely
using it as his base of operations.
3 In Dillon, there was evidence that the defendant was
selling illegal drugs at a residential location in Lowell, but
actually lived at a second residence in Billerica. Dillon, 79
Mass. App. Ct. at 291, 295-296. We held that the affidavit
failed to establish a sufficient nexus to the Billerica
residence. See id. at 297. In Commonwealth v. Lima, 80 Mass.
App. Ct. 114, 116-117 (2011), we faced a similar context in
8
the defendant was conducting an illegal drug operation out of
one residence, and then moved to another location from which he
continued to provide an on-demand crack cocaine business using
the same telephone number, nothing in our case law requires the
police to ignore the earlier evidence and start over from a
blank slate. To the contrary, existing case law recognizes that
whether an affidavit has shown a reasonable likelihood that
evidence of an illegal drug operation will be found at the place
to be searched turns on a commonsense evaluation of the pattern
of activity that has been documented. See Commonwealth v.
Colon, 80 Mass. App. Ct. 162, 169 (2011) ("pattern of repeated
activity giving rise to a reasonable inference that a dealer's
residence is being used as the base for his drug operation
provides sufficient nexus to search the residence" [citation
omitted]). See also Defrancesco, 99 Mass. App. Ct. at 213.
We also acknowledge that the affidavit did not include
certain details that the police appear to have known. For
which a defendant was contemporaneously using two residences.
The affidavit there established that the defendant was selling
drugs out of a "stash house" but lived at a different location.
See id. at 115. Under those facts, where even the affidavit
"explicitly state[d] that the [defendant's actual residence] was
unlikely to contain narcotics," we unremarkably concluded that
observations that the defendant had left his residence
immediately before, or returned to his residence after, engaging
in drug sales at the stash house failed to establish probable
cause that drugs would be found at his actual residence. See
id. at 116-117.
9
example, the fact that the defendant was the nephew of the
tenant of the apartment was absent.4 However, putting aside
whether the police might have had good reason to exclude such
details from the affidavit, the question is ultimately not
whether the affidavit might have been made stronger, but whether
it was sufficient to establish probable cause to search room
205. See Andre-Fields, 98 Mass. App. Ct. at 486 ("absence of
. . . information is not fatal to a determination of probable
cause" where "[w]e give considerable deference to the
magistrate's determination, and even 'the resolution of doubtful
or marginal cases . . . should be largely determined by the
preference to be accorded to warrants'" [citation omitted]). On
balance, reading the averments of the affidavit in their
totality, together with the reasonable inferences that can be
drawn from them, we conclude that the affidavit established
probable cause that evidence of illegal drugs would be found in
room 205 of the hotel, where the defendant was known to be
residing at the time of the application for the warrant. See
Commonwealth v. Diaz-Arias, 98 Mass. App. Ct. 504, 509 (2020)
(nexus can be "readily and 'practically' knowable or inferable
from the extensive facts in the warrant affidavit"). The judge
properly denied the motion to suppress.
This fact came out at the hearing on the motion to
4
suppress.
10
Order denying motion to
suppress affirmed.
HENRY, J. (dissenting). As the majority acknowledges, when
it comes to searching a person's residence for drugs, our "case
law reflects a residence-by-residence approach in which a search
warrant affidavit must establish a sufficient nexus for each
place to be searched." Ante at . The majority then departs
from that law by tacking activity from one residence --
actually, an apartment the majority infers was the defendant's
"likely" residence, ante at , -- to another residence, and it
does so even though the defendant changed his modus operandi,
switching from selling narcotics from his alleged home to a drug
delivery service out of a hotel.1 I wrote separately in
concurrence in Commonwealth v. Andre-Fields, 98 Mass. App. Ct.
475, 486 (2020), to "highlight the tenuously low showing to
establish the requisite nexus to search a residence in a drug
delivery service case, such as this one, where the confidential
[informant] made no statement connecting the target premises to
the drug activity." Given the sanctity of a person's home, I do
not agree that an intermediate appellate court should take such
a drastic step to reduce constitutional rights. This is
particularly true here, where the affidavit in support of the
1 "By 'drug delivery service case,' our cases have meant
that the defendant operated in a manner to keep the drug
transactions away from their home or target residence, typically
where the transactions are arranged in advance with the buyer."
Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 486 (2020)
(Henry, J., concurring).
2
search warrant falls significantly short of the excellent police
work we have seen in numerous cases. Accordingly, I dissent.
Discussion. 1. A single controlled "buy" in a drug
delivery service case, without more, such as a confidential
informant (CI) statement, does not establish the required nexus.
The place to be searched at issue here is the defendant's hotel
room in Brockton. The CI "had no idea of where [the defendant]
was living" and offered no statements tying the defendant's drug
activity to this location. Reading the affidavit in support of
the search warrant generously, it describes only one controlled
"buy" originating from and returning to this location.2 The
majority agrees that "a single observation of a defendant
leaving his residence to travel to a controlled buy, standing
alone, is insufficient to establish a sufficient nexus to that
residence." Ante at . This should be the end of the case.
2. Tacking activity from the apartment does not supply the
missing nexus. In denying the defendant's motion to suppress,
the motion judge "[c]ombin[ed] the two controlled purchases at
the . . . apartment with the third controlled buy" for which the
defendant left and returned to the hotel. To find the required
2 The affidavit does not even establish that one controlled
buy originated from the hotel room; the reader is left to infer
that the defendant left room 205 for the controlled buy. The
affidavit states that the affiant "observed [the defendant] exit
the rear door of the [four-story] . . . [h]otel" (viz., not a
particular room or even floor) to go to the controlled buy.
3
nexus to permit the search of the defendant's hotel room, the
majority also tacks his activity from the apartment to the hotel
room. Ante at . The majority concludes that, "it is a
reasonable inference that once the defendant moved from the
apartment to the hotel, his room there became his base of
operations." Ante at . This reasoning is not consistent with
our case law and is not factually supported by the inadequate
affidavit.
a. Case law requires a nexus between the drug activity and
the residence to be searched. As the majority acknowledges,
ante at , settled law establishes that there must be a nexus
between a specific residence and a defendant's drug activity to
obtain a search warrant for that residence. Commonwealth v.
Escalera, 462 Mass. 636, 643 (2012); Commonwealth v. Pina, 453
Mass. 438, 440-441 (2009).
While Escalera states that "[a] single observation of a
suspect leaving his home for a drug deal may also support an
inference that drugs will be found in the home where it is
coupled with other information, such as statements from credible
informants," Escalera, 462 Mass. at 644,3 this case is not a case
3 In Escalera, the Supreme Judicial Court relied on two
cases to support this proposition. The first case, Commonwealth
v. Young, 77 Mass. App. Ct. 381 (2010), is readily
distinguishable from this case. In Young, the CI had
"repeatedly purchased drugs (once by way of a controlled
purchase) from the defendant" (footnote omitted), the defendant
4
where the CI tied drug activity to the target premises.
Moreover, in Escalera, the "other information" was significantly
more robust than what we have here and did not involve tacking
activity at one residence to another. In Escalera, the
affidavit established a nexus to the residence to be searched
based on four controlled buys, three of which originated from
the residence to be searched, two short transactions near the
target residence that were suspected drug sales, and the
defendant's return to the target residence after all six
suspected drug sales. Id. at 645-646. "The affidavit also
provided information that the defendant could deliver drugs in
variable quantities on short notice, further supporting the
inference that the defendant kept a supply of drugs in his
home." Id. at 646. Significantly, in Escalera, the Supreme
Judicial Court distinguished the situation we have here,
observing that a nexus to permit a search of a residence was
"not established where police observed [the] defendant leaving
[the] residence for [a] single controlled sale and no other
selected locations for purchases "always within walking distance
of the defendant's apartment," and the CI had a track record of
providing information that led to ten arrests, nine of which
resulted in convictions. Id. at 381-383 & n.3. Here, the CI
had no track record and the defendant changed his modus
operandi. As for the other case, Commonwealth v. Luthy, 69
Mass. App. Ct. 102 (2007), I explained in Andre-Fields why good
reason exists to call Luthy into question. See Andre-Fields, 98
Mass. App. Ct. at 490-492 (Henry, J., concurring).
5
information connected [the] residence to drug activity." Id. at
644-645, citing Commonwealth v. Olivares, 30 Mass. App. Ct. 596,
597-598, 600-601 (1991).
It also is worth noting that in the year after Escalera, in
Commonwealth v. Clagon, 465 Mass. 1004, 1007 (2013), the court
characterized the nexus to the residence in a drug delivery
operation as a "close case," where the police had conducted
three controlled buys, at least two of which originated from the
target premises and at least one of which terminated at the
target premises, and an independent police investigation
revealed the defendant's family's ties to the residence and his
father's "extensive criminal record involving drug offenses."
Id. at 1005-1006.
b. The affidavit did not provide a sufficient factual
nexus to the hotel room to be searched. First, assuming the
defendant did move his drug sales from the apartment, he changed
his method of doing business, which distanced his hotel
residence from the drug activity. At the apartment, the
defendant was selling drugs in a residence (what the majority
infers was likely his residence). After moving to the hotel, he
offered a drug delivery service away from a residence. The
majority's reliance on Commonwealth v. Young, 77 Mass. App. Ct.
381, 387 (2010), for the proposition that a "defendant's routine
of walking directly from his apartment to the point of sale, and
6
returning to his apartment immediately following the sale,
raised a reasonable inference that he kept a cache of drugs in
his [residence]," is not persuasive. Here, there is no routine
or pattern connected to the hotel. This is not a question of
the police having to "start over from a blank slate," ante at
. It is a question of nexus to the specific residence to be
searched, particularly when the method of operation was
different.
Second, the fact that the affidavit is entirely unclear
where the defendant lived at the time of the first two
controlled buys means there is even less of a nexus to the hotel
room. The affidavit never actually says that the defendant
lived at the apartment. The CI did not say that the defendant
lived at the apartment. The affiant had obtained the
defendant's Registry of Motor Vehicle (RMV) record but did not
state the address listed for the defendant in it, an omission
that is glaring. In fact, the affidavit does not describe any
efforts to determine the defendant's address. The affidavit did
not describe sufficient surveillance of the apartment to
establish that the defendant lived there or even stayed there
overnight. See, e.g., Commonwealth v. Tapia, 463 Mass. 721, 724
(2012) (utility bill for apartment was in defendant's name and
telephone number associated with account was same number CI
called for three controlled buys); Commonwealth v. Matias, 440
7
Mass. 787, 789 (2004) (police learned from RMV that defendant
had registered two vehicles at target location); Andre-Fields,
98 Mass. App. Ct. at 478 ("law enforcement agents conducted
intermittent surveillance of [two] addresses associated with
[defendant]" and observed defendant's vehicle parked overnight
at both locations). It asks too much for the affidavit in
support of the search warrant to bear the inference that the
apartment was the defendant's residence. If the inference from
the affidavit is that the police had no idea of the defendant's
residence for the first two controlled buys, then there is less
of a nexus to the hotel room.
The police determined that someone else with the same last
name, William Lewis,4 not the defendant, was the tenant at the
apartment. And while it is true that the affidavit states that
the Brockton Housing Authority officers said William "always has
friends and family member [sic] staying with him," the affidavit
offered nothing more to indicate that the defendant lived there
or was related to William.5 When the affiant asked a Brockton
Housing Authority officer to visit "to see who was in the
apartment," the defendant was not in the apartment; rather, the
4 The first name is a pseudonym.
5 Lewis is one of the most common last names in the United
States. See Lewis Family History,
https://www.ancestry.com/name-origin?surname=lewis.
8
officer "encountered" the defendant in the hallway coming to the
apartment, and the defendant said he was coming to "visit[]"
William Lewis.
In fact, the only reference in the affidavit to the
defendant living at the apartment is that the officer learned
from an unidentified source -- not the CI -- that the defendant
had "moved out of" the apartment. Because we cannot rely on
unidentified sources for whom the basis of knowledge and
veracity have not been established, see Commonwealth v. Mejia,
411 Mass. 108, 111 (1991), the affidavit is bereft of any claim
or evidence that the defendant lived at the apartment.
Moreover, according to the affidavit, on the date of the
second controlled buy, the defendant had moved to the hotel
(although the police did not observe him coming from the hotel
or returning to the hotel from the second controlled buy;
rather, the police saw him at the apartment).6 The affidavit
does not give any timeframe for the second controlled buy.
Perhaps the defendant resided at the apartment at the time of
the second controlled buy, and later moved to the hotel, or he
never resided at the apartment at all. The affidavit is silent
on these significant facts.
6 The affidavit leaves it to the reader to puzzle out from
facts -- set forth pages apart -- that the second controlled buy
at the apartment was on the day the defendant checked into the
hotel.
9
The import of the first two controlled buys is that,
wherever the defendant lived, the defendant sold drugs at the
apartment using a different mode of operation. None of this
provides the required sufficient nexus to the hotel room.
3. This affidavit was inadequate generally. Reading a
search warrant is an exercise in logic, in which the court draws
reasonable inferences from the facts asserted in the affidavit.
See Commonwealth v. Hayes, 102 Mass. App. Ct. 455, 462-464
(2023). If the court system desires professional policing in
the Commonwealth, and I think it does, judges should read these
affidavits to determine what they actually show, including
reasonable inferences, and fail to show. We see numerous cases
with thorough affidavits that more than support the issuance of
a search warrant for residences. Given the gaping omissions in
this affidavit, this is not one of those cases.
As an initial matter, aside from failing to offer any
information about the defendant's residence, the affidavit
repeatedly uses phrases that should raise a judicial eyebrow.
For example, the affiant declares the CI a "Confidential
Reliable Informant (C.R.I.)," when the CI's reliability is the
very question the issuing magistrate should determine from the
facts, and not the affiant's ipse dixit. This is particularly
notable because the affidavit is devoid of the common claim that
the CI had previously provided the police with information that
10
led to the arrest or conviction in prior investigations. Cf.
Commonwealth v. Whitfield, 492 Mass. 61, 63 (2023) (CI "had
provided reliable information . . . that had led to numerous
arrests for firearms and drug violations"); Young, 77 Mass. App.
Ct. at 383 n.3; Commonwealth v. Alcantara, 53 Mass. App. Ct.
591, 593 (2002) (detective "detailed four instances in which CI
19 had provided information that led to search warrants,
resulting in arrests and seizures of narcotics").
Similarly, the affidavit says the affiant lost sight of the
defendant on his way to the third buy but another detective
"observed him seconds later" -- rather than straightforwardly
aver whether it was approximately a few seconds, a few minutes,
or more. Without an indication of how many seconds later, the
reader is left to infer it was an insignificant number of
seconds, and that nothing significant could have happened during
that time, such as the defendant dipping into a motor vehicle to
retrieve narcotics. This omission is all the more notable
because the affidavit leaves the reader to infer the defendant
walked to the controlled buy. Specifically, the affidavit
states that the defendant "walk[ed] towards Frederick Douglas
way [sic]" and that "he made his way over towards his
predetermined meet location with the C.R.I. . . . " (ellipsis in
original). Given the obfuscatory language in the affidavit
11
already noted, we cannot infer this is an insignificant change
in language.
Besides failing to state how the defendant traveled to the
third controlled buy, as indicated in note 2, supra, the
affidavit does not establish that the defendant left from room
205 of the hotel to go to the meeting location for the
controlled buy.
A third omission is that the affidavit does not state how
much time had passed between the time of the CI's call and the
purchase meeting. Cf. Escalera, 462 Mass. at 639 (in each of
four controlled buys defendant arrived at designated location
within several minutes of CI's call). Again, the reader is left
to infer that it was an insignificant amount of time that did
not allow the defendant to obtain narcotics elsewhere.
Fourth, while police had the apartment under surveillance,
they did not report observing other activity consistent with
drug transactions. See, e.g., Commonwealth v. O'Day, 440 Mass.
296, 299 (2003) (several vehicles parked in front of defendant's
residence and in his driveway as well as visitors arriving and
departing after "brief stay" observed during surveillance, in
trooper's opinion, "was consistent with narcotics
distribution"); Commonwealth v. Parapar, 404 Mass. 319, 321
(1989) ("During surveillance of the Auburn Street building, two
troopers observed numerous people enter the building and leave a
12
short time later. The troopers opined, based upon the amount of
traffic at the location, that there was a large scale drug
operation there"); Commonwealth v. Paredes, 35 Mass. App. Ct.
666, 667 n.1 (1993) ("The motion judge found that the police
investigation included . . . surveillance and observation of
heavy 'traffic activity [that] was consistent with a drug
distribution operation' at the premises"). The majority infers
the apartment was the defendant's "base of operations," ante at
, from one controlled buy when the defendant may or may not have
lived at the apartment (the first controlled buy) and one
controlled buy on a day the affidavit establishes the defendant
checked into the hotel (the second controlled buy).
Fifth, the affiant does not use telephone records to link
the telephone number the CI called to the defendant. See, e.g.,
Matias, 440 Mass. at 789 (police subpoenaed records for cell
phone number supplied by CI to determine to whom it was
registered and billing address); Commonwealth v. Monteiro, 80
Mass. App. Ct. 171, 172 (2011) (police investigation linked
telephone number called by CI to electric utility records billed
to defendant's wife at address police sought to search).
Sixth, the affiant does not say the defendant stayed in the
same hotel room during his entire stay at the hotel. To the
contrary, the affidavit was written in a way to suggest the
defendant may have moved rooms. It states that three days after
13
the third controlled buy, on May 1, 2019, the affiant confirmed
with a front desk clerk at the hotel that the defendant "checked
into the hotel on April 26, 2019 and is currently staying in
room #205."
In sum, this is a case where the affidavit's substantive
omissions and imprecise language are so overwhelming that common
sense and reasonable inferences cannot permissibly fill the
numerous gaps.
Conclusion. Nothing in this case justifies the majority's
departure from settled case law that requires a residence-by-
residence approach, particularly based on such a woefully
inadequate affidavit. I dissent.