State v. Geronimo Cosme

Supreme Court
No. 2010-225-C.A.
(P2/07-4140A)
State :
v. :
Geronimo Cosme. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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corrections may be made before the opinion is published.
Supreme Court
No. 2010-225-C.A.
(P2/07-4140A)
State :
v. :
Geronimo Cosme. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Geronimo Cosme, appeals from a
judgment of conviction for possession of cocaine with the intent to deliver and for possession of
cocaine in an amount between one ounce and one kilogram. Specifically, the defendant
challenges the denial of his motion to suppress evidence seized from his home, arguing that the
affidavit underlying the warrant did not provide the requisite probable cause to support a search
of his residence. In support of his argument, he contends that the affidavit not only failed to
establish a nexus between the alleged unlawful conduct and his home, but also that the
confidential informant (CI), upon whom the affiant depended, was not reliable and had no
established basis of knowledge nor sufficient veracity to justify issuing a search warrant for the
defendant’s residence. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Procedural History
On July 27, 2007, David Silva, a narcotics detective for the Pawtucket Police
Department, executed a search warrant at defendant’s residence, located at 111 Freight Street,
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Apartment 4, in the City of Pawtucket. 1 A search of the apartment produced the following
evidence: Under defendant’s bed was an unlocked, metal safe that contained 1.10 ounces (31.29
grams) of cocaine packaged in a clear plastic bag, a black digital scale, a box of plastic sandwich
bags, a calculator, two bottles of super inositol, 2 scissors, two cell phones, 3 defendant’s personal
papers, and $718 in cash. In defendant’s bedroom closet was a gray metal safe containing more
of defendant’s personal papers, including various bills, a Social Security card, a resident alien
card, tax information, and various pieces of mail. Also, defendant’s driver’s license was
discovered on a bedroom bureau.
The defendant was subsequently charged by information with possession of cocaine with
intent to deliver (count 1), possession of cocaine in an amount between one ounce and one
kilogram (count 2), distributing and/or manufacturing cocaine within three hundred yards of a
school (count 3), and maintaining a narcotics nuisance (count 4). 4 Before the trial commenced,
defendant moved to suppress the evidence seized from his residence, alleging that the warrant
failed to establish probable cause to justify the search of the apartment because there was “no
nexus between the controlled buy described in the search warrant affidavit and the premises
searched.”
At a hearing on May 12, 2009, Det. Silva testified that the execution of the search
warrant for defendant’s residence “was the culmination of an illegal street distribution of
1
The three-story apartment building located at this address contains approximately thirty-six
separate apartments.
2
Detective Silva explained that “[s]uper inositol is [a] B complex powder supplement * * * used
by narcotics traffickers * * * as a cutting agent to multiply their quantity of cocaine.”
3
According to Det. Silva, based upon his training and experience, “those who traffic narcotics
have two phones; one to maintain for their narcotics business, and the other for daily activities.”
4
Prior to trial, the state dismissed counts 3 and 4 pursuant to Rule 48(a) of the Superior Court
Rules of Criminal Procedure.
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cocaine.” The affidavit upon which the search warrant was based reads, in pertinent part, as
follows:
“[Detective Silva] received information from confidential
informant(s) concerning the illegal street distribution of [cocaine].
The information described the target to be a black male distributing
[cocaine] from 111 Freight Street apartment #4 in the city of
Pawtucket, Rhode Island. After further investigation, it was
revealed that the male in question was identified as Geronimo
Cosme * * *. Based on the information and the investigation, the
aforementioned activity occurs primarily during the nighttime
hours. Also, in the course of the investigation, [Det. Silva] has
determined through police records, license records, and
surveillance that Geronimo Cosme * * * lives at 111 Freight Street
apartment #4 in the City of Pawtucket, Rhode Island.
Furthermore, [Det. Silva] has conducted surveillance on Geronimo
Cosme and observed him in R.I. reg. OY-275 on a black Chrysler
Concorde making short stops meeting different people at various
discreet locations consistent with street level distribution of
narcotics. Also, consistent with the information provided by our
confidential informant(s) (CI).
“On or between July 21, 2007 and July 27, 2007 the
members of the Pawtucket Police Department Special Squad Unit
met with a confidential informant(s) (CI). The CI was searched for
contraband with negative results before being provided with
Official City of Pawtucket Funds. The CI was instructed to
attempt to make contact with Geronimo Cosme * * *. The CI was
instructed by Cosme to meet at a prearranged location. Under the
surveillance of members of the Special Squad, the CI met with a
black male whom the CI positively identified as Geronimo Cosme
* * *. The CI then purchased a quantity of white rock like
substance from Geronimo Cosme * * * in exchange for Official
City of Pawtucket funds. The CI then left the area and responded
to a prearranged location under the surveillance * * *.”
After hearing arguments from the state and defendant, the trial justice denied defendant’s motion
to suppress. A bench trial commenced later that same day, which resulted in a finding of guilt on
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both of the remaining counts. 5 The defendant’s sentencing hearing was held on July 9, 2009,
and for each count he was sentenced to ten years at the Adult Correctional Institutions, with
fourteen months to serve and 106 months suspended, with probation. A judgment of conviction
was entered on September 14, 2009, from which defendant has appealed. 6
II
Standard of Review
“When reviewing a trial justice’s decision granting or denying a motion to suppress, ‘we
defer to the factual findings of the trial justice, applying a clearly erroneous standard.’” State v.
Storey, 8 A.3d 454, 459-60 (R.I. 2010) (quoting State v. Flores, 996 A.2d 156, 160 (R.I. 2010)).
“Our review of ‘a trial justice’s determination of the existence or nonexistence of probable
cause’ necessitates de novo treatment.” Id. at 460 (quoting Flores, 996 A.2d at 160). This Court
must, however, accord great deference to the trial justice’s probable-cause determination, “so
long as there is a showing of ‘a substantial basis from which to discern probable cause.’” Id.(quoting State v. Byrne, 972 A.2d 633, 638 (R.I. 2009)).
III
Discussion
On appeal, defendant argues that the trial justice erred in denying his motion to suppress
the evidence discovered by the police during a search of his residence because the affidavit upon
which the search warrant was predicated did not demonstrate the requisite probable cause to
5
Before the start of the trial, defendant renewed his objection to the denial of his motion to
suppress. He requested a continuing objection during the testimony of Det. Silva, the only
witness in this case, and he also reasserted his objection after the state rested its case.
6
The defendant filed his appeal on July 9, 2009, before entry of the judgment of conviction on
September 14, 2009. This Court, however, will treat defendant’s appeal as timely because we
have stated previously that we “will treat a premature appeal as if it had been timely filed.”
Chapdelaine v. State, 32 A.3d 937, 941 n.1 (R.I. 2011) (quoting Bleau v. State, 968 A.2d 276,
278 n.1 (R.I. 2009) (mem.)).
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support the warrant. Specifically, defendant argues that “the affidavit failed to provide direct or
indirect facts from which reasonable inferences could be drawn that the instrumentalities of an
alleged crime could be found * * * in [defendant’s] home rather than his car.” He also contends
that “there is no information contained in the affidavit by which a magistrate could determine the
[confidential] informant’s veracity or reliability.” 7
A
The Nexus Between the Unlawful Conduct and the Place to be Searched
The defendant avers that “[t]he fundamental flaw in th[e] affidavit [supporting the search
warrant for his residence] is that it does not explain why there was probable cause to believe that
drugs or drug paraphernalia would be found at [his residence].” He contends that the
information provided by the CI supports probable cause that drug dealing activities were taking
place only from his vehicle, not from his home, because it lacks any “first-hand accounts of
criminal activity connected to the home, [any] third-party information tying criminal activity to
the home, [or any] demonstrable familiarity with the home or the activities of its inhabitants.”
He further maintains that the subsequent observations of Det. Silva do not establish probable
cause since “[t]here are no specific allegations, or particularized information based on police
surveillance, that the defendant [was] likely to keep drugs or drug paraphernalia in his home.”
Moreover, although recognizing that direct evidence is not necessary for a magistrate to find
probable cause, defendant avers that “the affidavit in this case is devoid of even the more general
information [that c]ourts have turned to” to establish a nexus “between a defendant’s drug
dealing and [his or her] home.” Lastly, he postulates that the mere fact that a person is believed
7
The defendant further argues that the “good faith” exception to search warrants, as promulgated
in United States v. Leon, 468 U.S. 897, 913-17 (1984), does not appy to his appeal. However,
we need not reach this argument because we hold that the affidavit in this case does establish the
requisite probable cause for the warrant at issue.
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to be a drug dealer, without more, does not furnish probable cause to expect that drugs would be
found in his or her home.
The defendant cites State v. Pratt, 641 A.2d 732, 737 (R.I. 1994), to support his
contention that the affidavit in his case lacked probable cause. He argues that probable cause
was established there because “the informant lived in the same residence as the defendant and
packaged and purchased drugs there,” but that, in his case, the police did not observe defendant
“in or near his residence,” nor was his vehicle connected to his home. Therefore, according to
defendant, probable cause to search his residence was lacking. He also attempts to distinguish
his case from State v. Verrecchia, 880 A.2d 89, 96, 97 (R.I. 2005), in which a CI gave the police
an exact location of where the illegal contraband was being stored, as well as the defendant’s
telephone number, which was used to call the defendant and complete an undercover buy.
According to defendant, the police in Verrecchia made direct observations that verified the CI’s
tip and “established facts by which a magistrate could infer that evidence of contraband was
likely to be located in [the place where the CI reported that it was being stored].” The defendant
states, in his brief, that:
“In stark contrast to the careful and diligent police investigation in
State v. Verrecchia, the * * * police detectives in [defendant’s]
case reported no surveillance, monitoring, or any police legwork
that resulted in facts by which a reviewing court might infer a
nexus existed between [defendant’s] alleged vehicle drug dealing
and his home.”
Further, defendant attempts to distinguish his case from both United States v. Barnes, 492
F.3d 33, 37 (1st Cir. 2007), and United States v. Angulo-Lopez, 791 F.2d 1394, 1398, 1399 (9th
Cir. 1986) (both holding that there was a nexus between the drug dealing activity and the
defendants’ homes from which they had been observed leaving)—cases that the trial justice
relied upon in finding that probable cause existed within the affidavit. The defendant argues that
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the trial justice based his denial of defendant’s motion to suppress “on a statement borrowed
from case law rather than on an examination of the evidence[—]and lack of evidence[—]in the
affidavit before him.” The defendant contends that “the Barnes Court arrived by deduction at its
conclusion after a logical and inferential examination of the facts present in the affidavit,”
whereas the trial justice in this case merely “relied upon the bare conclusion that street level drug
dealers store their wares in their homes.” He posits that the affidavit in his case is different from
the one in Barnes because
“[t]he informant [here], unlike the Barnes informant, did not
observe drugs inside the residence, or profess familiarity with the
inside of the residence, or even describe [defendant] by name, or
provide details or description of [defendant’s] car. No reports
were made in the affidavit that [defendant] was observed outside of
the residence, or that he left the residence directly before selling
drugs, or that drug paraphernalia or residue was discovered [near
his residence], or that the extent of his drug dealing was such that
the accumulation of proceeds would demand a safe and accessible
hiding place.”
The state counters that probable cause was properly established within the four corners of
the affidavit and that the trial justice did not err in his determination that the search warrant was
valid. The state, quoting United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999), argues:
“[I]t is absurd to believe that an individual who deals drugs from
his car is storing his entire supply, along with the requisite records
and paraphernalia, in the vehicle; instead, it is entirely logical to
infer that such contraband and the accompanying evidence will be
found in a ‘safe yet accessible place,’ namely, the suspect’s home.”
“The Fourth Amendment to the United States Constitution and article 1, section 6, of the
Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of
probable cause.” Byrne, 972 A.2d at 637 (quoting Verrecchia, 880 A.2d at 94). “Probable cause
must be ascertained within the four corners of the affidavit prepared in support of the warrant
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* * * and based on the totality of the circumstances presented in the affidavit.” Id. at 638. “In
making this determination, the issuing magistrate must review the affidavit and, based on the
facts contained therein, together with the reasonable inferences that may be drawn from those
facts, make a practical, commonsense determination as to whether ‘there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’” Id. (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “‘The magistrate need only conclude that it would be
reasonable to seek the evidence in the place indicated in the affidavit,’ and ‘[i]n doubtful cases,
the reviewing court should give preference to the validity of the warrant.’” Id. at 639 (quoting
United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985)).
In Byrne, this Court stated that “‘[t]he requisite nexus between the criminal article or
activity described in the affidavit and the place to be searched need not be based on direct
observation.’ * * * Rather, it ‘may be found in the type of crime, the nature of the * * * items
[sought], the extent of the suspect’s opportunity for concealment, and normal inferences as to
where a criminal would be likely to hide [items of the sort sought in the warrant].’” Byrne, 972
A.2d at 640 (quoting Commonwealth v. Anthony, 883 N.E.2d 918, 926 (Mass. 2008)). The
defendant, quoting Byrne, 972 A.2d at 641, however, attempts to distinguish his drug-dealing
case from Byrne, a video voyeurism case, by stating that, “[u]nlike drug dealing which often
takes place in public on the open street and often involves multiple public interactions between
various individuals, child pornography is by its very nature ‘a solitary and secretive crime.’” He
further contends that “[g]iven the public, recurring, and non-solitary character of drug dealing,
the ‘nature of the crime’ analysis which guided th[is] Court in Byrne is inapplicable to the facts
of this case.”
The trial justice stated:
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“The fact that in [Barnes and Angulo-Lopez] there is a
distinguishing factor that the defendant was seen coming from the
residence does not necessarily mean in all instances the suspect has
to have come from the residence in order to raise antennae in the
eyes of the experienced police officer, particularly where an
informant was proven to be reliable, as the informant here was.
“* * * The [Barnes] Court goes on to say, ‘This Court has
repeatedly found, however, that when a defendant sells drugs
outside his home, it is reasonable to conclude that there is evidence
of this drug dealing activity in the home.’ * * *
“Although that factor is absent in the instant case, that
language is nonetheless instructive, as is the language in the
Angulo[-Lopez] case * * *. The Court says, ‘Direct evidence that
contraband or evidence is at a particular location is not essential to
establish probable cause to search the location. A magistrate is
entitled to draw reasonable inferences about where evidence is
likely to be kept based on the nature of the evidence and the type
of offense. In the case of drug dealers, evidence is likely to be
found where the dealers live.’”
We concur with the analysis of the trial justice. Drugs must be stored and secreted, and
we are of the opinion that the trial justice made a reasonable inference when he stated “that a
drug dealer keeps his narcotics and * * * the paraphernalia for packaging for sale of such
narcotics[] secreted in his residence.” Here, the affidavit explicitly states that the CI reported the
distribution of cocaine by a black male from 111 Freight Street, Apartment 4 in Pawtucket. The
police then investigated and determined that the male described was defendant and that
defendant resided at that address. Although not stating that the police directly observed
defendant enter and exit this apartment to go sell drugs from his vehicle, we conclude that the
totality of the circumstances presented within the affidavit was sufficient to enable the magistrate
to reasonably infer that illegal contraband would be found in defendant’s residence. Therefore,
we find no error in the trial justice’s determination “that the affidavit is sufficiently strong to
support a finding of probable cause to search the residence of this defendant.”
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B
The Reliability of the Confidential Informant
The defendant argues that the affidavit does not contain any information by which a
magistrate could determine the CI’s veracity or reliability because it does not state the basis of
the CI’s knowledge or history of reliability or set out the time frame for when the tip was
received in comparison to when the investigation took place. Moreover, defendant alleges that
“the use of an informant to conduct a controlled buy does not solve the affidavit’s deficiencies
because the confidential informant who participated in the controlled buy appears, again, to lack
any indicia of reliability.” Additionally, he contends that, because the affidavit did not state the
date that the CI provided the tip, the information provided by the CI should be considered stale,
and therefore, deficient as a basis upon which to make a probable cause determination.
“It is well settled that, under the totality-of-the-circumstances test, ‘an informant’s
veracity, reliability, and basis of knowledge remain highly relevant.’” State v. King, 693 A.2d
658, 661 (R.I. 1997) (quoting State v. Ricci, 472 A.2d 291, 295 (R.I. 1984)). “A deficiency in
veracity or reliability, however, ‘may be compensated for * * * by a strong showing as to the
[basis of knowledge], or by some other indicia of reliability.’” Id. (quoting Gates, 462 U.S. at
233). “The totality-of-the-circumstances approach also recognizes the probative value of the
‘corroboration of details of an informant’s tip by independent police work.’” Id. (quoting Gates,
462 U.S. at 241).
To determine a search warrant’s validity, “we examine whether there was ‘a substantial
basis from which to discern probable cause’ from the ‘totality of the circumstances’ found within
‘the four corners of the affidavit prepared in support of the warrant.’” Storey, 8 A.3d at 461(quoting Byrne, 972 A.2d at 638). “Although each piece of information may not alone be
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sufficient to establish probable cause * * *, ‘probable cause is the sum total of layers of
information and the synthesis of what the police have heard, what they know, and what they
observed as trained officers.’” Id. at 462 (quoting State v. Schmalz, 744 N.W.2d 734, 738 (N.D.
2008)).
In the case under review, the detective received a tip from a CI that a black male was
selling cocaine from 111 Freight Street, Apartment 4, in Pawtucket. A police investigation
ensued, which revealed that the “black male” was defendant and that defendant did live at the
address provided by the informant. Further, Det. Silva observed defendant driving around,
making short stops with different people at different, discreet locations, primarily at night, which
the detective stated was “consistent with street level distribution of narcotics.” Although
defendant argues that the detective’s observations “seem[] to disprove the [CI’s] tip – i.e. showed
no evidence of any drug dealing from 111 Freight Street,” we are satisfied that the detective’s
observations supported the CI’s veracity, reliability, and basis of knowledge because they
confirmed that defendant probably was selling drugs, as was alleged by the CI in the original tip.
The CI’s tip, however, is not the only evidence of defendant’s drug activity within the
affidavit that the magistrate had before him when he made his probable-cause determination.
The affidavit states that the detective also set up a controlled buy, which resulted in the
observation of defendant selling cocaine directly to the CI. Whether the person involved in the
controlled buy was the same person who provided the initial tip to the police is irrelevant to the
finding of probable cause. As the trial justice stated:
“If it’s the same informant, so much the better for the State,
because a controlled buy was accomplished. If it was a different
informant, that in no way diminishes the reliability of the initial
informant. In fact, what it does is corroborate what the initial
informant said * * *; namely, that this fellow was selling drugs.
Either way, whether it’s the same informant or a different one, it
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proves out the reliability of the information that the police
originally received. * * *
“* * * I recognize * * * that [the vehicle] was not identified
in the affidavit as parked at the residence, or that there was any
drug activity flowing directly from the residence by way of
description in the affidavit, but, * * * reasonable inferences are
entitled to be drawn under the totality of the circumstances by the
issuing magistrate. And, I think it is a fair inference to be drawn
that a drug dealer keeps his narcotics and indeed the paraphernalia
for packaging for sale of such narcotics, secreted in his residence.”
We perceive no error in the trial justice’s determination that the CI’s tip was properly
corroborated or that this corroborated tip, combined with defendant’s recent sale of cocaine in a
controlled buy, satisfied the probable cause requirement to support the warrant which authorized
the search of defendant’s residence.
Additionally, the defendant’s argument that the undated tip presented “the possibility that
the information received by the Detective was stale by the time the cursory investigation began”
is unavailing. The affidavit states that the controlled buy, in which the defendant directly was
observed by the police selling cocaine to the confidential informant, took place on a date
between July 21, 2007, and July 27, 2007. The warrant was authorized, issued, and executed on
July 27, 2007. In Storey, 8 A.3d at 462, we held that “the combination of an older tip, plus fresh
evidence discovered close in time to the warrant application was sufficient to show that the tip
was not stale and to establish probable cause.” Even assuming the initial tip had withered, it
obtained new growth when the police observed the defendant selling cocaine to the CI within
one week of the application for the warrant. As such, we are satisfied that the recent controlled
buy obviated any concern about the timeliness of the initial tip.
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IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record of this case shall be remanded to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: State v. Geronimo Cosme.
CASE NO: No. 2010-225-C.A.
(P2/07-4140A)
COURT: Supreme Court
DATE OPINION FILED: December 14, 2012
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Robert D. Krause
ATTORNEYS ON APPEAL:
For State: Jane M. McSoley
Department of Attorney General
For Defendant: Lara E. Montecalvo
Office of the Public Defender