Commonwealth v. Fernandez
Commonwealth v. Fernandez
Opinion of the Court
The defendant was convicted, after a jury trial, of possession with intent to distribute heroin, G. L. c. 94C, § 32, and he pleaded guilty to doing so as a subsequent offender, G. L. c. 94C, § 32 (b ). On appeal, the defendant argues that his motions to suppress were erroneously denied for three reasons. First, he contends that the affidavit submitted in support of the warrant application failed to establish a sufficient risk to officer safety to justify the "no-knock" provision of the warrant. Second, he argues that the affidavit failed to establish a sufficient nexus between the firearm described in the search warrant and the locus and that the information in the affidavit was stale. Third, he contends that the motion judge, based on clearly erroneous findings, erred in denying a Franks hearing. See Franks v. Delaware,
We review de novo a motion judge's finding of probable cause based on a search warrant affidavit, Commonwealth v. Tapia,
The defendant argues that the affidavit did not provide probable cause to allow a no-knock entry. "In order to justify suspension of the knock and announce requirement, the Commonwealth must establish that there is probable cause to believe that, in the particular circumstances of the search to be undertaken, evidence will be destroyed or officer safety put at risk if the rule is observed." Commonwealth v. Jimenez,
Here, the affidavit established a substantial basis for concluding that officer safety would be at risk: (1) the house contained multiple occupants, including the defendant, (2) the defendant had been observed by the confidential informant conducting drug sales from the house, (3) the defendant had displayed a gun to the confidential informant, and stated that he had other firearms, (4) the gun was not secured in accordance with our gun storage laws, (5) the gun was not legal, (6) the defendant's criminal history included crimes of violence, (7) the defendant's girlfriend (with whom he lived) herself had a criminal history (albeit not of crimes against persons), (8) the entry to the house was exposed, and (9) the house was located in a residential area where the risk to neighbors was heightened because of its density. The defendant's illegal possession of a deadly weapon or weapons, combined with his criminal history, including acts of violence and the distribution of narcotics, established sufficient substantial risk to officer safety to justify a no-knock entry.
The defendant's next argument is that the affidavit did not provide sufficient nexus between the revolver and the residence to be searched, and that the information from the confidential informant was stale. "The 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 occurring at the place to be searched." Spano,
Finally, the defendant argues that the motion judge erred in denying him a hearing pursuant to Franks v. Delaware,
The defendant's Franks motion posited that the affiant officer had fabricated his affidavit "as a courtesy" to the defendant's landlord, who was a retired State police trooper, and was also involved in a summary process action against the defendant. Before ruling on the motion, the judge in his discretion held an in camera ex parte hearing pursuant to Commonwealth v. Amral,
Judgment affirmed.
The judge had earlier denied the defendant's Aguilar-Spinelli motion, a ruling that the defendant has not appealed. See Spinelli v. United States,
Like the motion judge, we read the affidavit to say that the informant had viewed the defendant with the firearm within two weeks of the warrant application.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.