Commonwealth v. Clagon
Commonwealth v. Clagon
Opinion of the Court
The Commonwealth appeals from an order of a judge in the Superior Court allowing Reginald Clagon’s and Anthony Gerald’s motions to suppress evidence obtained pursuant to a search warrant.
Standard of review. “[0]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four comers of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villela, 39 Mass. App. Ct. 426, 428 (1995). Probable cause to believe that a suspect has committed a crime is not sufficient to justify a search of the suspect’s home; rather, the affidavit and reasonable inferences drawn therefrom “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Escalera, 462 Mass. 636, 642 (2012), quoting Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). Because “[i]n dealing with probable cause ... we deal with probabilities,” Commonwealth v. Hason, 387 Mass. 169, 174 (1982), the affidavit “should be ‘read as a whole, not parsed, severed, and subjected to hypercritical analysis.’ ” Commonwealth v. Anthony, 451 Mass. 59, 69 (2008), quoting Commonwealth v. Donahue, supra. “A reviewing court gives considerable deference to the magistrate’s determination of probable cause, see Commonwealth v. Upton, 394 Mass. 363, 377 (1985), and even ‘the resolution of doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.’ ” Commonwealth v. Anthony, supra, quoting Commonwealth v. Germain, 396 Mass. 413, 418 (1985).
Facts. Here, the search warrant was issued based on an affidavit of Patrick Byrne, a Boston police officer with experience in drug investigations and arrests. He attested that he was familiar with drag distribution tactics, such as a delivery service whereby a distributor conceals a supply of controlled substances at his residence and conducts sales to individual buyers at other
Under the supervision of Boston police officers, Z thereafter made three controlled purchases from Gerald in the thirty days before the warrant was issued. In the first, after the officers ensured that Z possessed no money or drugs, Z placed a telephone call to a certain number and was instructed to go to a specific location.
Analysis. Reading the affidavit as a whole and drawing all reasonable inferences therefrom, we conclude that it establishes probable cause to believe that
The motion judge and the Appeals Court noted the absence of various details from the affidavit, such as the quantity of the substance sold at each controlled purchase, the time of day, and the amount of time it took Gerald to travel from the premises to the sale. While such details likely would have made the affidavit more compelling, they are largely immaterial to the question whether evidence would probably be found at the premises. In particular, however long it took Gerald to travel to the sale, the fact that he did not stop anywhere en route indicates that he had the substance with him when he left the premises and did not obtain it elsewhere on the way. Admittedly, the affidavit does not state whether Gerald walked or drove to and from the sales. This is somewhat more relevant: if he had driven, there would be a possibility that he kept the substance in the car rather than in the premises. But even this would not by itself be fatal to the existence of probable cause. “A warrant application ‘need not establish to a certainty that the items to be seized will be found in the specified location, nor exclude any and all possibility that the items might be found elsewhere. The test is probable cause, not certainty.’ ” Commonwealth v. Escalera, supra at 646, quoting Commonwealth v. Young, 77 Mass. App. Ct. 381, 386 (2010). Moreover, even if the substance itself was stored in the car, the other paraphernalia and records of a drug-distribution
This is a close case, and Byrne’s affidavit would have been stronger if it had included more details. Nonetheless, the affidavit was sufficient to establish probable cause to search the premises.
Order allowing motions to suppress reversed.
he record indicates that Kimble made an oral request to join the motions to suppress at the hearing on such motions and subsequently filed a motion to that effect.
The motion judge did not address whether the information provided by the confidential informant satisfied the Aguilar-Spinelli test. Clagon, who is the only defendant to file an appellate brief in this matter, does not challenge the informant’s basis of knowledge or veracity. Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985), citing Spinelli v. United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108 (1964). Although the affidavit does not speak of the informant’s reliability, the confidential informant’s participation in three controlled purchases with Gerald is sufficient to satisfy the test.
In addition, the application itself states that the premises are “occupied by and/or in the possession of: Anthony Gerald.”
The affidavit does not identify the location. Byme attests that drag distributors commonly assign a unique meeting location to each buyer in order to assist in identifying any individual who may have provided information to law enforcement. By not identifying the location where Z met Gerald, the affidavit helps to protect Z’s identity.
The affidavit does not state whether any field testing was performed after any of the controlled purchases. In each case, Byme believed it was heroin due to his training and experience and the type of packaging that was used. There is no challenge to the warrant based on the identity of the substance.
Byme’s affidavit states that Gerald “returned to” the premises, although it does not appear that Gerald was observed leaving the premises prior to this controlled purchase.
Reference
- Full Case Name
- Commonwealth v. Reginald Clagon (and six companion cases)
- Cited By
- 10 cases
- Status
- Published