NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12256

COMMONWEALTH vs. MARK PERKINS.

Suffolk. March 7, 2017. - October 10, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.1

Controlled Substances. Firearms. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Warrant, Affidavit, Probable cause. Practice, Criminal, Motion to suppress.

Indictments found and returned in the Superior Court Department on August 13, 2014.

A pretrial motion to suppress evidence was heard by Shannon Frison, J., and a motion to reconsider was also heard by her.

An application for leave to prosecute an interlocutory appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.

Nicole M. Nixon, Assistant District Attorney (Graham G. Van Epps, Assistant District Attorney, also present) for the Commonwealth. Robert F. Hennessy (John M. Thompson also present) for the defendant.

1 Justice Hines participated in the deliberation on this case prior to her retirement. 2

GAZIANO, J. A Suffolk County grand jury returned

indictments charging the defendant with trafficking in cocaine

over 200 grams, G. L. c. 94C, § 32E (b) (4); possession of

ammunition after three or more criminal convictions, G. L.

c. 269, §§ 10 (h), 10G (c); and possession of an electrical

weapon, G. L. c. 140, § 131J. The indictments stemmed from a

wiretap investigation by State police and Framingham police of a

drug distribution network operating in Framingham, Natick,

Worcester, and Boston.2 Based on intercepted telephone

conversations between the defendant's alleged middleman and a

street-level distributor of cocaine, police surveillance of a

suspected drug transaction, and other information, a judge in

the Superior Court in Suffolk County issued a warrant

authorizing a search of the defendant's apartment for evidence

including a cellular telephone and drug-related records. The

warrant also authorized police to search for a distinctive

article of clothing (an orange, hooded sweatshirt) allegedly

worn by the defendant at the time of the suspected transaction.

The warrant affidavit did not seek authorization to search for

narcotics. When the warrant was executed, officers seized a

2 As a result of the joint investigation of the alleged trafficking network, the defendant also was indicted by a Middlesex County grand jury on cocaine trafficking charges. 3

large quantity of cocaine, cellular telephones, drug

paraphernalia, and ammunition.

The defendant filed a motion to suppress in the Superior

Court in Middlesex County. Concluding that the affidavit failed

to establish either probable cause to believe that the defendant

sold cocaine or a sufficient nexus between the defendant's

alleged criminal activity and his apartment, a judge allowed the

defendant's motion to suppress the seized evidence. A single

justice of this court allowed the Commonwealth's application to

pursue an interlocutory appeal in the Appeals Court, and we

allowed the defendant's application for direct appellate review.

We conclude that the warrant affidavit established probable

cause to believe that the defendant, acting through a middleman,

sold cocaine to a street-level dealer on the date alleged. It

also established a sufficient nexus between the defendant's

participation in that transaction and his residence to permit a

search for the cellular telephone used to arrange the sale and

the sweatshirt he wore while conducting the transaction. As the

motion judge determined, however, the affidavit did not provide

sufficient particularized information to allow a general search

of the apartment for other "drug-related" evidence.

Accordingly, we remand the matter to the Superior Court for a

determination, after appropriate proceedings, whether the search

exceeded the permissible scope of the warrant. 4

1. Background. a. Investigation and warrant application.

On April 30, 2014, State police Trooper Patrick M. Burke and

Framingham police Detective Robert J. Lewis applied for warrants

to search twelve residences in Middlesex, Suffolk, and Worcester

counties. The defendant's apartment, located in a building on

Commonwealth Avenue in the Allston section of Boston, was one of

the twelve. In support of the warrant application, the officers

submitted a 221-page affidavit that described a wiretap

investigation into a drug distribution network headed by Robert

Hairston, operating in Framingham, Worcester, Natick, Boston and

surrounding areas. The warrant affidavit provided as follows.

Pursuant to several wiretap warrants issued in April, 2014,

officers intercepted text messages and calls between telephones

used by Hairston and other members of his organization. Through

intercepted telephone calls between Hairston and Nasean Johnson,3

his alleged cocaine supplier, police learned the locations of

the transactions, the amount of cocaine Hairston agreed to

purchase from Johnson, and the purchase price.

i. Transaction on April 23, 2014. The affidavit alleged

that on April 23, 2014, the defendant, assisted by Johnson, who

was acting as a middleman, sold Hairston 125 grams of cocaine

for $5,200. The affidavit relied upon a detailed description of

3 The wiretap warrants did not authorize interception of communications to and from Nasean Johnson's telephone. 5

cellular telephone calls intercepted on April 23, 2014, to

establish probable cause that the defendant had conducted the

transaction. These calls were described as follows.

At 11 A.M., Hairston telephoned Johnson to discuss a

resupply of cocaine. In response to the question, "What's the

word?," Johnson said that he had called his own supplier,

referred to as "Ol' boy," and informed Ol' boy that Hairston

wanted "two." Hairston asked if the supplier would "come this

way" (toward Framingham). Johnson replied that Ol' boy would be

there "if you want him to."

When Hairston complained that the $5,200 purchase price was

excessive, Johnson responded that his supplier had determined

the price: "Nah, he said fifty-two, yo." Hairston remarked

that this was a "crazy" price. Johnson reiterated that his

supplier had set the price, and added, "I'm not getting nothing

off it, he ain't looking out for me." Johnson urged Hairston to

let him know as soon as possible if he intended to complete the

purchase, because he had to call his supplier "while it's still

early."

At 12:08 P.M., police intercepted a telephone call in which

Hairston and Johnson agreed to meet at the Natick Mall at 2 P.M.

to complete the transaction. Johnson also mentioned that his

supplier would be coming from Brighton. Later, Hairston and 6

Johnson arranged to meet at a particular department store

parking lot.

At 2:35 P.M., Hairston informed Johnson that he was

arriving at the parking lot. A few minutes later, a police

officer observed the defendant, wearing an orange, hooded

sweatshirt (hoodie) and jeans, walking from a restaurant into

the parking lot. At 2:37 P.M., Johnson telephoned Hairston.

While they were trying to locate each other in the parking lot,

Hairston thought that he had spotted Johnson wearing a hoodie,

but immediately corrected himself. "Oh I see you, that's you in

the hoodie? Nah, that's not you in the hoodie. Hell no."

Johnson told Hairston that the person in the hoodie was his

associate. "Yeah, yeah, keep going that my peeps."

At approximately 2:40 P.M., police observed Hairston enter

a Nissan Altima automobile, driven by Johnson, parked in a

parking space directly across from the entrance to the

department store. A few minutes later, Hairston got out of the

Altima and entered his Audi vehicle. Johnson then left the

Altima and approached the Audi. After a brief conversation with

Hairston, Johnson re-entered the Altima and left the parking

lot.

Surveillance officers followed the Altima. After

approximately twenty minutes, at 3:02 P.M., uniformed officers

stopped the vehicle on the purported ground of a traffic 7

violation. They identified the defendant as the individual

driving the vehicle and Johnson as the passenger. When the

defendant opened the glove compartment to retrieve his

registration, they saw a bundle of cash, later determined to be

$5,200.

During the course of the stop, at 3:10 P.M., police

intercepted a telephone call between Hairston and Johnson, in

which Hairston complained that the cocaine he had just purchased

was "wet." Johnson told Hairston that he would have to call

back "because I just got pulled over."

At 3:24 P.M., Johnson telephoned Hairston. Johnson said

that his supplier had advised him that the cocaine would dry out

in approximately one hour. Johnson added that his supplier

promised to make it up to Hairston on the next purchase. "[B]ut

on the next one he's got you."

b. Search of the defendant's apartment. On April 30,

2014, a judge of the Superior Court in Suffolk County issued a

search warrant authorizing police to search the defendant's

apartment for evidence of his participation in the cocaine

distribution network. The warrant authorized the seizure of

records, in paper or electronic form, related to the defendant's

alleged drug distribution business; records related to the

financial proceeds stemming from that business; currency used to

purchase or sell cocaine; paraphernalia used in the distribution 8

of cocaine; cellular telephones used to further the defendant's

alleged drug distribution business, including cellular

telephones showing evidence of contact with Johnson's telephone

number; personal contact lists; any documentation identifying

persons having custody or control over the premises or its

contents; and the orange, hooded sweatshirt the police observed

during the April 23, 2014, drug transaction.

Police executed the warrant on May 1, 2014. According to

the search warrant return, they seized three bags of cocaine, a

scale, two ice cube trays, a bottle of Inositol powder, paper

containing white powdery residue, $1,000 in cash, nine cellular

telephones, an Apple iPad brand tablet computer, one round of

ammunition, a stun gun, a container for a "concealed carry deep

cover holster," a checkbook in the names of the defendant and

his girl friend, one white circular pill, and miscellaneous

paperwork.4

c. Prior proceedings. As stated, the defendant filed a

motion in the Superior Court to suppress all evidence seized

during the execution of the search warrant. A judge of that

court allowed the defendant's motion on the grounds that the

search warrant affidavit failed to establish either the

defendant's involvement in the drug transaction or a sufficient

4 Police did not find an orange hooded sweatshirt. 9

nexus between the alleged drug transaction and his apartment.

The Commonwealth sought reconsideration of the suppression order

and written findings and rulings. After an evidentiary hearing,

the judge issued the requested written findings and denied the

motion for reconsideration.

2. Discussion. a. Standard of review. Under both the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights, a search warrant may

issue only upon a showing of probable cause. Commonwealth v.

Valerio,

(2007). In reviewing a

determination that there was probable cause to issue a search

warrant, we consider the facts contained within the "four

corners of the [search warrant] affidavit" (citation omitted),

see Commonwealth v. O'Day,

(2003), and the

reasonable inferences to be drawn from them. See Commonwealth

v. Martinez,

(2017). 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,

(2002). 10

The question whether there was probable cause to issue the

search warrant is a question of law that we review de novo, see

Commonwealth v. Tapia,

(2012), in a

commonsense and realistic manner. See Commonwealth v. Molina,

(2017); Commonwealth v. Cruz,

(2000). A reviewing 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,

(2000). See Commonwealth v.

Anthony,

(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" [citation omitted]).

b. Whether the warrant affidavit established probable

cause to believe that the defendant participated in the April 23

drug transaction. In allowing the defendant's motion to

suppress, the motion judge determined that police had

"absolutely no information that they provided the issuing

Justice as to the role or duties of Mark Perkins in the alleged

drug conspiracy." Drawing all reasonable inferences from the

information set forth in the affidavit, we conclude that the

search warrant affidavit established probable cause to believe 11

that the defendant participated in the April 23, 2014, drug

transaction.

First, it is reasonable to infer from the affidavit that

Johnson acted as a middleman for the April 23, 2014, sale of 125

grams of cocaine to Hairston. This inference is supported by

several statements made during the 11 A.M. telephone

conversations between Hairston and Johnson in which Hairston

sought to purchase cocaine. Johnson told Hairston that he had

called another individual, nicknamed Ol’ boy, and informed him

that Hairston "wanted two." Johnson offered, and Hairston

agreed, that "Ol' boy" should "come this way." When Hairston

commented that the price was excessive, Johnson informed

Hairston that his supplier had set the purchase price, and that

Johnson himself was not being compensated for arranging the

transaction. "That's what he said, fifty-two. I'm not getting

nothing off it, he ain't looking out for me." At the end of the

conversation, Johnson said, "So if you want to make that move I

have to call him while it's still early. You know?"

Second, it was reasonable for the issuing judge to have

inferred that the defendant was Johnson's source of supply. In

another telephone call with Hairston, Johnson indicated that his

source would come from Brighton and would meet them at the

Natick Mall at 2 P.M.; the defendant lived in Allston, a section

of Boston adjacent to Brighton and arrived at the mall at 12

approximately 2:35 P.M. While Hairston and Johnson were

attempting to locate each other in the parking lot, Hairston

asked, "Oh I see you, that's you in the hoodie?" and Johnson

responded, "Yeah, yeah, keep going[;] that my peeps." At the

same time, police saw the defendant in the parking lot near an

ice cream store where Hairston was standing; the defendant was

wearing an orange, hooded sweatshirt and had a cellular

telephone pressed to his ear.

After Hairston had entered the Altima where Johnson was

seated, then returned to his Audi, the defendant drove the

Altima out of the parking lot, with Johnson as his passenger.

When police stopped the Altima under the ruse of a traffic

violation, they saw $5,200 in cash (the same amount as the

purchase price that had been discussed) in the glove

compartment. While the Altima was stopped, Hairston telephoned

Johnson to complain that the cocaine he had just purchased was

"wet." Johnson said he would have to call later because he had

just been pulled over by police. Johnson then telephoned

Hairston a few minutes later and assured him that "he" had said

to let the cocaine dry and that "he" had said he would make good

on a future transaction. Based on this series of telephone

calls and events, a reasonable inference could be drawn that the

source Johnson referenced was the defendant, who was present in

the Altima with Johnson at that time. 13

c. Whether the search warrant affidavit established a

sufficient nexus to the defendant's apartment. "Information

establishing that a person is guilty of a crime does not

necessarily constitute probable cause to search the person's

residence." Commonwealth v. Cinelli,

, cert.

denied,

(1983). See Commonwealth v. Matias,

(2004).

To establish probable cause to search an individual's

house, the search warrant affidavit must establish a

"substantial basis for concluding that evidence connected to the

crime will be found on the specified premises. " Tapia,

, quoting Commonwealth v. Donahue,

(2000). The nexus between the crime alleged and the place

to be searched "need not be based on direct observation."

Matias,

, quoting Cinelli,

.

"No bright-line rule can establish whether there is a nexus

between suspected drug dealing and a defendant's home."

Commonwealth v. Escalera,

(2012). The nexus

to search a residence for evidence of a crime "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]" (quotations and citation omitted).

14

We consider in turn the individual items to be searched as

listed in the warrant to determine whether there was a

sufficient nexus between the item and the defendant's home.

i. Cellular telephones. The defendant argues that the

warrant affidavit did not set forth specific information

connecting his alleged criminal activity to his apartment. He

asserts that in Commonwealth v. White,

(2016),

this court rejected "nearly identical efforts by the

Commonwealth to rely on general considerations to establish

probable cause to search a cellular telephone." We conclude

that the search warrant affidavit established probable cause to

search the defendant's apartment for the cellular telephone he

used to arrange the April 23, 2014, transaction.

The search warrant authorized police to search the

defendant's residence for "[c]ellular telephones used to

facilitate narcotics transactions, including [a] telephone with

unidentified call number, showing evidence of contact with [a

specific telephone number] ('Nasean Johnson Phone')" and

"[p]ersonal contact lists or telephone directories, in paper or

electronic form, which reflect the names or nicknames of parties

associated with telephone numbers, including the electronic

contact lists of cellular telephones."

In Commonwealth v. White,

, we noted that

the police "did not have any information that [a] cellular 15

telephone was used in the crime under investigation." Rather,

they believed that if the defendant had planned and committed

multiple crimes with two accomplices, it was likely that he had

communicated with the accomplices by using his cellular

telephone, and, accordingly, likely that evidence of these

communications would be found on the device.

We determined

that "police may not seize or search . . . a cellular telephone

to look for evidence unless they have information establishing

the existence of particularized evidence likely to be found

there."

See Commonwealth v. Broom,

(2016) ("general" and "conclusory" opinion by affiant that

individual is likely to store information in cellular telephone

does not satisfy probable cause standard).

In this case, however, quite unlike the situation in White,

police had detailed and specific knowledge concerning the

defendant's use of a cellular telephone to arrange drug

transactions, and a particular telephone number with which that

cellular telephone had been in contact at a specific time. The

affidavit established probable cause to believe that the

defendant had used a cellular telephone to arrange cocaine sales

through Johnson, his middleman. During the intercepted 11 A.M.

telephone conversation between Johnson and Hairston, Johnson

twice mentioned calling his supplier. When Hairston, who was

seeking to purchase cocaine, asked, "Well, ah, what's the word?" 16

Johnson responded, "I called Ol' boy too, man." At the end of

the conversation, when the two discussed the price charged by

"Ol' boy," Johnson told Hairston, "So, if you want to make that

move I have to call him while it's still early. You know?"

[Emphases added.]

Police also made direct observations corroborating a number

of the statements made in the calls. They observed the

defendant arrive in the parking lot where the transaction had

been arranged to take place at the scheduled time, talking on a

cellular telephone while moving towards an ice cream store

described in the intercepted conversations. The defendant left

the parking lot with Johnson immediately after the presumed drug

transaction. Thus, it was reasonable to infer that Johnson kept

the defendant informed about the transaction as those plans

evolved throughout the afternoon. Because there was probable

cause to believe that the defendant had used a cellular

telephone to arrange the drug sale, through Johnson as

intermediary, and that he had used cellular telephones to

arrange drug transactions on other occasions, the warrant

affidavit sought to seize all of the cellular telephones found

in the defendant's apartment. We conclude that the seizure of

the nine telephones found in the apartment was supported by

probable cause. See Molina,

(probable

cause existed for search warrant to seize all computers at 17

defendant's apartment where evidence showed a particular IP

address had been used to acquire child pornography and all

computers on router in defendant's house shared that IP

address).

The conclusion that the warrant affidavit established a

sufficient nexus to search the defendant's apartment for the

cellular telephone used to communicate with Johnson on April 23,

2014, does not mean, however, that police had unlimited

discretion to search every portion of the nine cellular

telephones seized from the apartment. The Fourth Amendment,

art. 14, and G. L. c. 276, § 2, require that a search warrant

describe with particularity the places to be searched and the

items to be seized. See Molina,

. "By defining

and limiting the scope of the search, these constitutional and

statutory particularity requirements prohibit general warrants

amounting to 'exploratory rummaging in a person's belongings.'"

quoting Coolidge v. New Hampshire,

(1971). See Commonwealth v. Dorelas,

, 499 n.3

(2016) (examining whether warrant to search cellular telephone

was overly broad).

Here, the warrant established probable cause to search the

call logs of the nine seized telephones to determine which, if

any, had contacted the telephone number belonging to Johnson.

In addition, the police were authorized to search the telephone 18

contact lists to determine whether there was evidence that the

defendant was associated with Johnson. See Dorelas,

(search of cellular telephone files "must be done with

special care"); Commonwealth v. Berry,

(2012)

(distinguishing between limited search of cellular telephone to

view recent call activity and more intrusive search of device).

The police were not authorized to rummage through the entirety

of the defendant's cellular telephones, and were confined by the

plain terms of the warrant affidavit to call activity and

contact lists. See

("no impediment to

limiting the search to certain types . . . of files stored in

specific sections" of cellular telephone).

ii. The orange sweatshirt. As an initial matter, the

defendant argues that the Commonwealth's contention that there

was probable cause to search for the orange sweatshirt was not

raised before the motion judge, and therefore it may not be

considered as a basis for reversing the order allowing his

motion to suppress. See Commonwealth v. Bettencourt,

(2006) (arguments not raised below by Commonwealth

in connection with motion to suppress are usually not considered

on appeal as basis for reversal). We do not agree.

In its opposition to the defendant's motion to suppress,

the Commonwealth stated that the issuing judge authorized the

police to seize an "[o]range[,] hooded sweatshirt, as observed 19

April 23, 2014[,] in Natick." The Commonwealth then argued that

the defendant's appearance at the Natick mall during the April

23, 2014, drug transaction was evidence of his participation in

the drug trafficking conspiracy. While focused on other items

sought under the search warrant, the Commonwealth's argument in

opposition to the motion to suppress ultimately addressed the

sufficiency of the warrant affidavit to establish probable cause

to search for all of the listed items. Contrast Bettencourt,

(court did not consider Commonwealth's

argument that State trooper's actions were justified because

actions were taken pursuant to trooper's community caretaking

function, where argument was raised for first time on appeal).

A warrant affidavit may, in particular circumstances,

establish probable cause to search for articles of clothing,

including at a suspect's residence, to identify a suspect in a

criminal investigation. "There is no prohibition against

seizure of articles of clothing to be used for evidentiary

purposes where, as here, there is a nexus between these articles

and the crime." Commonwealth v. Murray,

(1971). See Commonwealth v. Perez,

(1970) (probable cause for seizure of blood-stained articles of

clothing at dry cleaner to aid in identification aspect of

investigation). In Commonwealth v. Cavitt,

, 627-

628 (2011), we held that police had probable cause to search an 20

apartment for clothing, including red and white sneakers, to

identify a defendant as the suspected robber. In Commonwealth

v. James,

(1997), police sought to search

suspects' homes for dark clothing, based on eyewitness account

of the events surrounding a killing. We held that the search

was valid given that the evidence, which could help identify the

suspects as the perpetrator, was "durable, of continuing utility

to the defendants, and it was reasonable to expect that they

would be kept at home, particularly as they are not inherently

incriminating to possess."

.

The defendant argues that, because the affiants already had

positively identified the black male wearing an orange, hooded

sweatshirt as the defendant during the motor vehicle stop on the

day of the drug transaction, the affidavit did not provide

probable cause to believe that recovery of the orange sweatshirt

would meaningfully aid in a particular apprehension or

conviction in this case.

"The Fourth Amendment does not bar a search for evidence to

prove the commission of a crime[,] provided there is probable

cause for the belief that the evidence sought will aid in a

particular apprehension or conviction." Murray,

. See Matter of Lavigne,

(1994), quoting

("a search for evidence to prove the commission of

a crime [is not barred] provided there is probable cause for the 21

belief that the evidence sought will aid in a particular

apprehension or conviction."

The orange sweatshirt, if found in the defendant's

apartment, would have been relevant to his identification as the

seller in the transaction. The Commonwealth could have used the

sweatshirt to corroborate police observations of the defendant

in the department store parking lot at the time of the

intercepted exchange between Hairston and Johnson. This could,

in turn, have assisted the Commonwealth to prove that the

defendant was the supplier who promised to be present at the

exchange. The fact that the officers who submitted the search

warrant affidavit had identified the defendant during the motor

vehicle stop, which occurred approximately twenty minutes after

the drug transaction, did not negate the sweatshirt's

evidentiary value. See Warden, Md. Penitentiary v. Hayden,

(1967) (government may seize evidence simply

for purpose of proving crime).

Our probable cause analysis requires that the affidavit

"provide[] the magistrate with a substantial basis for

concluding that any of such articles was probably present in the

[residence]." See Commonwealth v. Stewart,

(1971). Because the warrant application set forth facts derived

from the registry of motor vehicles and direct police

observation that the defendant lived at the apartment named in 22

the search warrant affidavit, it was reasonable to infer that

the defendant likely kept his clothing, including the orange

sweatshirt, in this apartment. See James,

(suspect's clothing reasonably expected to be kept at home,

particularly given that it is not inherently incriminating to

possess items of clothing).

iii. Drug records, proceeds, and paraphernalia. The

Commonwealth maintains that "circumstantial evidence coupled

with the affiant's specialized knowledge concerning the

logistics of narcotics distribution established probable cause"

to search for drug-related evidence, including proceeds and

records of drug distribution, in the defendant's apartment. The

Commonwealth points out that the nexus between the crime alleged

and the place to be searched may be established through normal

inferences as to where such items are typically kept, see

Cinelli,

, and that a reviewing court may

consider the experience and expertise of a police officer in

making this determination, see White,

. This

does not establish the nexus the Commonwealth suggests.

The affidavit here did not contain sufficient

particularized information to justify a search of the defendants

apartment for drug-related records, proceeds, and paraphernalia.

The affidavit included a single, conclusory statement that

probable cause existed based on the affiant's "training and 23

experience and the facts and circumstances learned during the

course of this investigation."5 The affidavit contained no

facts, or opinion based upon the affiant's considerable

experience as a narcotics officer, that would have establish

probable cause to believe that the defendant would be likely to

store particular items of evidence in his home. Contrast

Commonwealth v. Lima,

(2011)

(affidavit premised on police officer's specialized knowledge

supported inference that drug organization utilized specific

dwelling to store proceeds and records); Commonwealth v.

Santiago,

(2006) (magistrate

entitled to rely on specific facts drawn from police officer's

experience to support affiant's conclusion that records,

ledgers, or proceeds were contained in particular dwelling).

Accordingly, we affirm the motion judge's determination that the

affidavit failed to establish probable cause to conduct a

general search for drug-related evidence.

3. Conclusion. The order allowing the defendant's motion

to suppress is vacated and set aside. The matter is remanded to

the Superior Court for further proceedings consistent with this

5 The Commonwealth maintains that the affiants offered an opinion concerning records typically maintained by drug dealers. This opinion, found in an appended affidavit submitted in support of an application for a wiretap, concerned the general structure of a drug organization, and did not address the type of evidence that would be found in this defendant's residence. 24

opinion, to determine, consistent with this opinion, whether the

search exceeded the permissible scope of the warrant.

So ordered.