DocketNumber: No. 06-P-1058
Citation Numbers: 70 Mass. App. Ct. 194
Judges: Katzmann
Filed Date: 9/24/2007
Status: Precedential
Modified Date: 6/25/2022
A jury in Superior Court convicted the defendant of trafficking in cocaine in an amount of one hundred grams or more, but less than 200 grams. Claiming that the search warrant affidavit did not pass muster, and that the evidence was not sufficient to convict him of constructive possession, the defendant appeals. While we are unpersuaded by the Commonwealth’s claim that offensive collateral estoppel bars the search warrant challenge, we determine that the motion to suppress was properly denied, and affirm the judgment of conviction.
The road to this appeal has been a long and winding one. On February 1, 1994, the Plymouth police applied for, received, and executed search warrants for 31 Seaview Street, Plymouth, and unit six of the Bay View Motel, Kingston, with each warrant based on the same affidavit. At the time of execution of the Sea-view Street warrant, the defendant, Gregory A. Rabb, and one Maurice Wynn were among five men arrested. When the Bay View Motel room search warrant was executed, the police recovered two “stashes” in two different places — one bag of 82.05 grams of “crack” cocaine was inside a wall heater, and the other bag of 31.02 grams of crack cocaine was at the bottom of a Loops cereal box. They also found a walkie-talkie radio tuned to the same frequency as one found at Seaview Street. A grand
On February 21, 1997, the trial judge allowed the defendant’s motion for a required finding of not guilty and entered judgment for the defendant, setting aside the verdict. The judge agreed with the defendant that his plea of guilty in District Court to a charge of possession of cocaine with intent to distribute, prior to his trial of the trafficking indictment in Superior Court, barred prosecution of the indictment under double jeopardy principles. The Supreme Judicial Court subsequently vacated the judgment and reinstated the conviction. Commonwealth v. Rabb, 431 Mass. 123, 123-124 (2000). On February 3, 2005, following the defendant’s surrender on an outstanding warrant, another Superior Court judge reimposed the defendant’s sentence. On June 1, 2005, a single justice of this court allowed the defendant’s motion to reinstate his direct appeal. After review, we affirm the order denying the motion to suppress as well as the order denying the motion for required finding of not guilty.
1. Collateral estoppel. While our primary inquiry is whether the affidavit accompanying the search warrant application established that the defendant’s involvement in a cocaine distribution ring permitted an inference that he likely stored drugs or evidence relating to the distribution in his motel room, we must first address the Commonwealth’s contention that the defendant is precluded by the doctrine of collateral estoppel from relitigat-ing the validity of the search warrant. The Commonwealth’s as
“Offensive collateral estoppel ‘occurs when a plaintiff seeks to prevent a defendant from litigating issues which the defendant has previously litigated unsuccessfully in an action against another party.’ ” Commonwealth v. Two Parcels of Land, 48 Mass. App. Ct. 693, 697 (2000), quoting from Whitehall Co. v. Barletta, 404 Mass. 497, 501 n.9 (1989). As the Commonwealth notes, “[wjhether the common-law principle of offensive or non-mutual collateral estoppel can be asserted by the Commonwealth against a codefendant in a criminal case to preclude review of an issue is an unsettled issue.” The doctrine of collateral estoppel, and its cousin, issue preclusion, have application to criminal cases. Commonwealth v. Williams, 431 Mass. 71, 74 (2000). It applies when the “issue of fact or law is actually litigated and determined by a valid and final judgment, ... the determination is essential to the judgment,” and the defendant had an opportunity to obtain review of the determination. Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005), quoting from Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983). Moreover, it “usually applies only ‘where there is mutuality of the parties.’ ” Commonwealth v. Williams, 431 Mass. at 74, quoting from Commonwealth v. Benson, 389 Mass. 473, 478 n.6, cert. denied, 464 U.S. 915 (1983). See Commonwealth v. Rodriguez, 443 Mass. at 710 (“Collateral estoppel usually involves the application of issue preclusion in a subsequent action of a different claim between the same parties”). “ ‘Fairness is the decisive consideration’ in the use of offensive collateral estoppel.” Commonwealth v. Two Parcels of Land, 48 Mass. App. Ct. at 698, quoting from Smola v. Higgins, 42 Mass. App. Ct. 724, 727 (1997). The court must be satisfied that the party to be estopped had a “full and fair opportunity to litigate the issue.” Brunson v. Wall, 405 Mass. 446, 451 (1989),
The defendant was not a party in Commonwealth v. Wynn, supra. While the Commonwealth concedes that the parties in Wynn are not the “same” as those in the present case, it asserts that due to their mutual interests in having the seized evidence suppressed, they are in privity. However, the Commonwealth cites to no cases permitting offensive collateral estoppel in Massachusetts criminal cases or, more on point, in a suppression context. We do not find the Commonwealth’s argument here to be persuasive. A suppression hearing “is a critical stage of the prosecution which affects substantial rights of an accused person; the outcome of the hearing . . . may often determine the eventual outcome of conviction or acquittal.” Robinson v. Commonwealth, 445 Mass. 280, 286 (2005), quoting from United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981). During a suppression hearing, facts regarding a search are established, and its legality is determined. See Robinson v. Commonwealth, 445 Mass. at 286, citing People v. Anderson, 16 N.Y.2d. 282, 287-288 (1965). Because a suppression hearing is a “critical stage” under Mass.R.Crim.P. 18(a), 378 Mass. 887 (1979), a defendant has a right to be present at such a hearing, see Robinson v. Commonwealth, 445 Mass. at 285-286; Smith, Criminal Practice & Procedure § 1607 (2d ed. 1983), and is entitled to the effective assistance of counsel at it. See United States v. Cronic, 466 U.S. 648, 659 (1984); Commonwealth v. Curtis, 417 Mass. 619, 635 n.14 (1994). The importance of the suppression hearing is such that while a defendant may waive his right to be present at the hearing, that “does not imply waiver of . . . the right to the suppression hearing itself and the right to effective assistance of counsel at that hearing.” Commonwealth v. Robinson, 445 Mass. at 288. The waiver of the right to be present is not readily presumed, and requires careful scrutiny by the judge.
2. Challenge to the search warrant for unit six of the Bay View Motel, a. Background. Our review of the sufficiency of a search warrant affidavit “begins and ends with the ‘four comers of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). We summarize the facts recited in the affidavit by William Curtis, a Plymouth police department detective.
In January, 1993, Curtis spoke with an informant (C-1),
Curtis next spoke with C-l in July, 1993. At this time, C-l stated that Santos was no longer operating out of Smith’s apartment, that Smith had begun selling cocaine herself, and that C-l had observed sales by Smith within the last three days.
In October, 1993, Curtis spoke with a second informant (C-2).
Around this time, Curtis and another detective, one Flood, spoke with Smith’s landlord. The landlord stated that he was concerned about the possibility of illegal activity in Smith’s
On December 3, 1993, Plymouth police executed a search warrant at 3 Forest Avenue, Plymouth, the residence of one Elaine Dickson. At that time, police arrested five suspects, including one Brendon Pittman. Pittman told police that he had gone to Dickson’s house for drugs. Dickson told him she was sending someone to “Heidi’s” for the drugs, and that “Heidi” lived on a hill on the street behind Dickson’s house. Pittman had in fact taken the drugs once they were procured. Subsequent investigation by Curtis confirmed that Smith’s house was on a hill behind Forest Avenue.
On December 7, 1993, Curtis again spoke with C-2. C-2 stated that Smith continued to sell crack cocaine from her apartment, that the crack cocaine was wrapped in clear plastic and sold for twenty dollars, that the apartment did not appear to have electrical service, and that he had visited the apartment within the last four days. Curtis also spoke with C-2 on December 14, 1993, at which time C-2 reported that Smith continued to sell cocaine at the same price and that clubs and knives were present on the floor of the apartment.
Around this time, Curtis again spoke with Smith’s landlord. He reported that the tenants continued to complain about Smith’s activities and that electrical service had been discontinued.
In the several months preceding this period, Curtis and Flood conducted “loose surveillance” of Smith’s residence. The detectives observed numerous motor vehicles and subjects coming and going from the house, at all hours of the night. Several of the subjects were known to the detectives as cocaine users.
On December 15, 1993, Plymouth police executed a search warrant at Smith’s apartment, during which an unspecified quantity of cocaine was seized. Police also arrested Smith, Richard Whiting, and the defendant at that time.
Curtis next spoke with C-2 on January 13, 1994. C-2 informed Curtis that a black male continued to sell cocaine from Smith’s residence, that Smith and Rutado were both present during the transactions, and that the observed transaction had occurred within the previous four days.
On January 30, 1994, Curtis had a conversation with a third informant, C-3.
In the middle of January, 1994, Curtis and Flood conducted a second “loose surveillance” of Smith’s apartment. During that time they observed numerous motor vehicles from surrounding communities stop at the apartment. The occupants got out of their vehicles, entered the apartment, and then returned to their
On February 1, 1994, Curtis spoke with C-2. C-2 informed Curtis that C-2 had been to Smith’s apartment within the last twenty-four hours and had seen crack cocaine sold at the location, and that the crack cocaine had the same method of packaging and price as the last time C-2 had spoken to Curtis. C-2 also heard a black man at the apartment mention contacting “G-Money” to obtain more crack cocaine. According to Curtis, the defendant’s “street name” is G-Money.
Curtis’s investigation also revealed that Smith, Whiting, and the defendant have “lengthy” criminal records, including convictions of armed robberies, assaults, and controlled substance violations. Based on this information, Curtis requested search warrants for Smith’s apartment (31 Seaview Street, Plymouth) and unit six of the Capeway
The defendant raises three challenges to the sufficiency of the search warrant for unit six of the Bay View Motel: that C-3 did not satisfy the second prong of the Aguilar-Spinelli
b. Informant’s basis of knowledge. The defendant asserts that the affidavit failed to establish that the information provided by C-3 is credible or worthy of belief or that C-3 had a sufficient basis of knowledge from which the magistrate could infer that the defendant stored cocaine in the subject motel room. See Commonwealth v. Upton, 394 Mass. 363, 374-377 (1985) (affidavit requires showing of informant’s veracity and basis for knowledge). The defendant further asserts that we should exclude the information related by C-3, as learned from Furtado, as impermissible hearsay.
We note that C-3’s statements relating to the sales of crack cocaine from Smith’s residence were corroborated by C-l’s statements, C-2’s statements, and the two periods of independent surveillance by Detectives Curtis and Rood. See Commonwealth v. O’Day, 440 Mass. 296, 301 (2003) (“[independent police corroboration of an informant’s tip can compensate for deficiencies in either or both [.Aguilar-Spinelli] prongs to satisfy the probable cause requirement”); Commonwealth v. Mebane, 33 Mass. App. Ct. 941, 942 (1992) (same); Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 485-486 (1994); Commonwealth v. Russell, 46 Mass. App. Ct. 513, 517-519 (1999) (corroboration by other confidential informants). Curtis’s investigation had also established independent circumstantial evidence corroborating that the defendant was Smith’s supplier. This included the defendant’s arrest during the execution of the December 15, 1993, search warrant, the discovery of the walkie-talkie radio during the same search, the statements by the motel owner that the defendant was staying at the Bay View Motel and often operated the specified blue motor vehicle, and Curtis’s and Flood’s several observations in January, 1994, of the blue motor vehicle parked near Smith’s residence in the manner similar to that described by C-3. Lastly, C-2 informed Curtis that he had overheard a person at Smith’s apartment mention contacting the defendant for more cocaine. Thus, assuming arguendo that C-3 lacked a sufficient basis of knowledge, there was sufficient compensating corroboration.
c. Nexus. “[T]he information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there.” Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 105 (2007), quoting from Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 59 (2007). See Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521 (2006); Commonwealth v. Eller, 66 Mass. App. Ct. 564, 565 (2006). See also Grasso & McEvoy, Suppression Matters Under Massachusetts Law
The central issue is whether the magistrate’s inference that drugs were likely to be found in the motel room was reasonable. We conclude that it was. First, it was reasonable for the magistrate to conclude that the defendant was engaged in a type of drug delivery service that involved the regular delivery of drugs to Smith’s apartment. This included evidence of a one-year pattern of crack cocaine sales from Smith’s apartment, and reasonable inferences — drawn from at least two informants’ statements that the defendant was Smith’s supplier, an informant’s statement that Smith contacted the defendant to procure additional drugs, the defendant’s earlier arrest at the apartment, and police observation of the same blue motor vehicle parked at both the Bay View Motel and near the apartment — that the defendant was likely a regular visitor to Smith’s apartment for the purpose of supplying cocaine. Cf. Commonwealth v. Matias, 440 Mass. 787, 795 (2004) (fact that drugs were regularly sold out of first apartment searched was significant factor in supporting probable cause to search nearby “stash” apartment).
Second, the affidavit established that Smith used a walkie-talkie radio to contact the defendant, that the defendant was staying in unit six of the Bay View Motel, and that Smith’s resi
Third, the magistrate was presented with contextual underpinning suggesting that the motel room was likely the base for the defendant’s drug delivery operations. This included statements by the motel owner that the defendant was staying at the motel and often operated a specific blue motor vehicle. There were also observations by the police on several occasions that the same blue motor vehicle was parked near the vicinity of Smith’s apartment. As the magistrate was aware, the blue motor vehicle was rented to a third party, supporting an inference that the defendant stored his supply of drugs in the motel room rather than the vehicle. See Commonwealth v. O’Day, 440 Mass. at 303 (unlikely that defendant “would keep so large a supply of drugs in the truck while at home”); Commonwealth v. Hardy, 63 Mass. App. Ct. at 213. Contrast Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 301 & n.20 (2007) (no probable cause because court determined only rational inference supported by affidavit was that defendant stored drugs at places other than his residence). This evidence, taken together, is more than sufficient to establish probable cause.
Contrary to the defendant’s argument, the affidavit in this
3. Constructive possession. On appeal, the defendant contends that there was insufficient evidence presented to the jury to permit the inference that he intended to exercise dominion and control over all the drugs found in the motel room. He contends that of the cocaine that was found in the motel room, only the 82.05 grams of crack cocaine found in the wall heater belonged to him, while the 31.02 grams of cocaine found in a cereal box belonged to Wynn. He argues that he was not involved in a joint venture for the distribution of cocaine. Pointing to his postarrest statement, in which he admitted to possessing the 82.05 grams of crack cocaine in the wall heater, he argues that he should not have criminal liability for the other stash. The defendant contends that the trial judge erred in denying his motion for a required finding of not guilty on the offense of trafficking in cocaine in an amount of one hundred grams or more, but less than 200 grams. We review the evidence in the light most favorable to the Commonwealth to determine whether any
The relevant evidence has been summarized thus:
“[T]he case was not tried before the jury on the ‘separate stashes’ issue. The Commonwealth’s theory at trial was that the defendant either constructively possessed all the cocaine seized at the motel in Kingston or was culpable for the full amount as a joint venturer with Maurice Wynn. The Commonwealth characterized the transactions in the two locations as involving the movement of cocaine from Kingston (where the prosecutor said it was warehoused) to Plymouth (where the prosecutor argued it was sold). The defense at trial was that the defendant and Wynn acted independently of each other, and that the defendant dealt only with the cocaine found in the wall heater (82.05 grams), while Wynn was solely responsible for the cocaine found in the cereal box (31.02 grams). Based on this strategy, the defendant’s trial counsel argued to the jury that the defendant should be found ‘guilty of [the] amount over [twenty-eight] grams, under [one hundred].’ This was a reference to the crime charged by G. L. c. 94C, § 32E(b)(2), which punishes trafficking in twenty-eight or more grams of cocaine, but less than one hundred grams. That crime calls for a less severe mandatory minimum sentence, and the offense was before the jury on their verdict form as a lesser included offense. The jury found the defendant guilty as charged of the more serious trafficking offense, expressly finding that he constructively possessed all the cocaine seized at the motel.”
Commonwealth v. Rabb, 431 Mass. at 126 n.4.
“To permit a finding of constructive possession there must be evidence sufficient to infer that the defendant not only had knowledge of the items, but also had the ability and intention to exercise dominion and control over them.” Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 680 (2006). “The requisite proof of possession ‘may be established by circumstantial evidence, and the inferences that can be drawn therefrom.’ ” Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997), quoting from Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985).
Judgment affirmed.
Wynn was also indicted for trafficking in cocaine of a net weight of one hundred grams or more but less than 200 grams. Wynn’s motion to suppress the evidence seized at the Seaview Street address and the Bay View Motel room was denied. He was tried separately, and a jury convicted him of the lesser included offense of trafficking in cocaine of a net weight of more than twenty-eight grams but less than one hundred grams, and of possession of cocaine with intent to distribute. This court affirmed the order denying the motion to suppress and the judgments in an unpublished memorandum and order pursuant to our rule 1:28. Commonwealth v. Wynn, 44 Mass. App. Ct. 1114 (1998).
That the defendant’s hearing was nonevidentiary — as is typical in consideration of motions to suppress physical evidence seized pursuant to a search warrant — does not diminish the strength of his individualized interest.
At the time he applied for the warrant, Curtis was a twenty-year veteran, with thirteen years’ experience in plain clothes narcotics investigation. He had attended a variety of narcotics training sessions.
The affidavit sometimes states this address as Seaview Avenue. We see no significance in this inconsistency, and use Seaview Street throughout this opinion. We also note that the actual search warrant application lists 31 Sea-view Street.
Curtis described C-l as a reliable informant, whose information had previously led to arrests, seizures of controlled substances, and court convictions.
C-1 had visited the premises several times, including within forty-eight hours of the meeting with Detective Curtis. C-l stated that not all three men were present during each visit.
Curtis stated that C-2 was a reliable informant whose information had previously led to arrests, seizures of drugs, and court convictions.
Police arrested Smith and Whiting for possession of a class B substance (crack cocaine).
Curtis alleged that C-3 was a reliable informant whose information had previously led to arrests and seizures of controlled substances.
Curtis’s investigation indicated that Bay View Motel was within one-quarter mile of 31 Seaview Street.
C-3 also stated that the motor vehicle was sometimes operated by another black male named Glenroy.
It is unclear from the record how Curtis obtained this information.
It is unclear from the record how Curtis converted the Bay View Motel, which is cited throughout the affidavit, to the Capeway Motel. It is of note, however, that the actual search warrant application lists Bay View Motel.
See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 415 (1969).
The defendant concedes that C-3 satisfied the first prong of the AguilarSpinelli test, that is, the “veracity” prong. See generally Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 232 & n.6 (2006).
After speaking with the registered owner of the vehicle, the police corroborated Furtado’s statement that the blue motor vehicle was often operated by a black male named Glenroy, as he was the party named in the rental agreement.
Observation of the defendant leaving the Bay View Motel and proceeding directly to Smith’s residence was not necessary to enable an inference of probable cause to search the motel room. Contrast Commonwealth v. Gallagher, 68 Mass. App. Ct. at 58-59 (defendant drove directly from residence to controlled drug purchases).
The search warrant affidavit in the Matías case, unlike the instant one, specifically alleged that the second apartment was a “stash” apartment. Commonwealth v. Matias, 440 Mass. at 790. That implication, however, can be read into the present affidavit. See Commonwealth v. O’Day, 440 Mass. at 301 (affidavit “should be read as a whole, not parsed, severed, and subjected to hypercritical analysis”).
The motel owner stated that Wynn had initially rented the room for one night, but that she did not see him again.
The jury could also properly infer that both the defendant and Wynn had the ability and intention to exercise dominion and control over the narcotics. See Commonwealth v. Bonilla, 32 Mass. App. Ct. 942, 944-945 (1992). Here, a significant quantity of narcotics and the walkie-talkie radio were in the motel room in a common area readily accessible to both the defendant and Wynn. See ibid.