The Police Cannot Search An Individual’s Home For Drugs Unless They Obtain A Search Warrant Based On Probable Cause

• Steven Topazio wrote this April 16, 2020 at 3:22 pm

In Commonwealth Vs. Jillian M. Silva, 94 Mass. App. Ct. 270 (2018), the Appeal’s Court reversed the allowance of the defendant’s motion to suppress drugs seized from her apartment and concluded that, contrary to the Superior Court Judge’s ruling, the police affidavit in support of its application for a warrant to search the apartment established probable cause to believe that drugs would be found there.  The Appeals Court found that police observations of an individual’s departure from the building at that address and travel directly to the location of three controlled purchases established a nexus between the building and the drug-distribution operation in which that individual was engaged; and where the affidavit explained in some detail the basis for the affiant’s concern that the occupants of the apartment would destroy evidence unless the officers executing the warrant were allowed to dispense with the knock-and-announce requirement.

The basic facts of the Silva case, as set forth in the affidavit supporting the search warrant, were as follows. A police detective (Amaral) “was told by a confidential informant (CI) that an individual the CI knew as ‘Bryan’ was engaged in a ‘crack’ cocaine delivery service.” The CI described his purchases of drugs from Bryan, including the fact “that Bryan sometimes arrived at the purchase location in a gold-colored vehicle with a strap holding down the trunk, which was driven by a woman…. Amaral learned that another detective …. had begun an investigation of an individual named Bryan Simpson residing at 175 Harwich Street,” “and had received five anonymous telephone calls on the narcotics anonymous tips line within the previous six months. The anonymous tipster described Simpson’s use of a gold-colored vehicle with a strap holding down the trunk.” The other detective “informed Amaral that he had … observed Simpson and a woman leave the building at [175 Harwich Street] and get into a gold-colored vehicle with a strap holding down the trunk.” The other detective learned that that the vehicle “was registered to the defendant’s mother” and that an investigation into police department records included an incident report “in which the defendant …described [Simpson] as her boy friend.” Amaral then arranged to have the CI make three controlled purchases of crack cocaine from Simpson. “On two occasions, shortly after the CI placed a call to Bryan, detectives watched Simpson and a woman leave … 175 Harwich Street, enter a vehicle parked on the street, … drive directly to the designated location,” and consummate a drug transaction. “After the second meeting, Simpson and the woman returned immediately to 175 Harwich Street and entered” the building. “On the occasion of the third controlled purchase, Simpson was observed leaving 175 Harwich Street alone … [and] driving to the designated location, where he sold crack cocaine to the CI” before traveling to a location other than Harwich Street. “Detectives also observed Simpson and a woman check the mailbox for an apartment on the east side of 175 Harwich Street…. Amaral … determined that the utilities for the third-floor apartment on the east side of 175 Harwich Street had been established in the name of Michelle Silva …, listing a particular telephone number for the customer. Amaral called the telephone number and, when a woman answered, asked to speak to ‘Jillian Silva’ [the defendant]. The woman on the telephone said ‘speaking,’ whereupon Amaral terminated the call.” On the basis of the above information, the police obtained a warrant to search the [thirdfloor] apartment at 175 Harwich Street in which they believed Simpson and the defendant lived. There the police seized quantities of class A and class B drugs. After the issuance of a criminal complaint charging the defendant with various drug offenses, she filed a motion to suppress the contraband. The judge allowed the motion on the ground that the affidavit in support of the search warrant application was inadequate to establish probable cause. The Commonwealth appealed.

“The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights ‘require a magistrate to determine that probable cause exists before issuing a search warrant.'” Commonwealth v. Escalera, 462 Mass. 636, 641-642 (2012), quoting Commonwealth v. Byfield,413 Mass. 426, 428 (1992). “To establish probable cause, the facts contained in the warrant affidavit, and the reasonable inferences drawn from them, must be sufficient for the issuing judge to conclude that the police seek items related to criminal activity and that the items described ‘reasonably may be expected to be located in the place to be searched at the time the warrant issues’ (citation omitted). Commonwealth v. Walker, 438 Mass. 246, 249 (2002). The question of whether there was probable cause to issue the search warrant is a question of law that [is] reviewed de novo, see Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), in a commonsense and realistic manner.” Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In conducting [that] review, [the court] reads the warrant affidavit as a whole, without overly parsing or severing it, or subjecting it to “hypercritical analysis” (citation omitted). Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v. Anthony, 451 Mass. 59, 68 (2008) (“In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act”.

On appeal, the Court in the Silva case rejected the defendant’s contention that the affidavit failed to provide an adequate connection or nexus to the particular apartment unit within the building to establish probable cause to search.  The Appeals Court opined that “the information set forth in [the police] affidavit furnished probable cause to believe that drugs and other implements of the drug trade would be found in the third-floor apartment on the east side of 175 Harwich Street. Specifically, police observations of Simpson[] depart[ing] from the building at that address and travel[ling] directly to the location of three controlled purchases established a nexus between the building and the drug-distribution operation in which Simpson was engaged.”