Commonwealth v. Andrew A. Padilla

APPEALS COURT

COMMONWEALTH vs. ANDREW A. PADILLA

Docket:

23-P-581

Dates:

October 2, 2024 - December 20, 2024

Present:

Plymouth

County:

Massing, Henry, & Grant, JJ.

Keywords:

Controlled Substances. Narcotic Drugs. Firearms. Constitutional Law, Search and seizure. Search and Seizure, Warrant, Affidavit. Practice, Criminal, Motion to suppress, Warrant, Affidavit.

Indictments found and returned in the

Superior Court Department on June 11, 2019.

Pretrial motions to suppress evidence were

considered by Cornelius J. Moriarty, II, J., and motions for reconsideration

were considered by him; a motion to dismiss was heard by Brian A. Davis, J.;

and conditional pleas were accepted by William F. Sullivan, J.

Patrick J. Noonan for the defendant.

Arne Hantson, Assistant District Attorney,

for the Commonwealth.

GRANT, J.

Based on an affidavit describing two controlled purchases of unspecified

"narcotics," police obtained a warrant to search the defendant's home

for "[a]ll controlled substances which have been . . .

distributed . . . in violation of [G. L.

c.] 94C." In this appeal from

a conditional guilty plea, we conclude that, to meet the particularity

requirements of the Fourth Amendment to the United States Constitution, art. 14

of the Massachusetts Declaration of Rights, and G. L. c. 276,

§ 2, the search warrant was required to specify the controlled substance

or substances for which police alleged they had probable cause to search. Because neither the search warrant nor its

supporting affidavit specified any such substance, the search warrant lacked

particularity, and thus the evidence should have been suppressed.

Background. The affidavit supporting the search warrant

application, sworn to by Brockton Police Detective Brian M. Donahue, provided

the following information. In February

2019, a confidential informant (CI) told Donahue that a man, whose appearance

the CI described, was selling narcotics from the second-floor apartment at a

certain address. Donahue obtained from

the Registry of Motor Vehicles database a photograph of the defendant, who

lived in a multifamily dwelling at that address, and, from the photograph, the

CI identified the defendant as the seller.

Donahue's affidavit did not disclose specifically what substance or

substances the CI said that the defendant was selling, but stated generally

that he was selling "narcotics (such as cocaine, heroin, marijuana, and/or

prescription medications like oxycodone hydrochloride pills)."

During March 2019, the CI made a

controlled purchase from the defendant at the apartment, using the following

procedure. Police determined that the CI

was not in possession of any controlled substances or money, and then gave the

CI an unspecified amount of money. While

Donahue and other officers conducted surveillance outside the dwelling, the CI

entered through a rear door and emerged five to ten minutes later. The CI met police at another location and

handed over a substance that the CI had purchased from the defendant for the

money police had provided. Again

Donahue's affidavit did not disclose what substance the CI purchased, but

identified it only as "narcotics (such as cocaine, heroin, marijuana,

and/or prescription medications like oxycodone hydrochloride pills)."

On or about March 24, 2019, the CI made a

second controlled purchase from the defendant at the apartment, using the same

procedure. Once again Donahue's

affidavit did not disclose what substance the CI purchased, but stated that it

was "narcotics" from the same list of categories. Donahue averred that he "intentionally

withheld some of the details of the controlled buys . . . such as

specifically identifying the narcotic purchased by [the] CI" in order to

protect the identity of the CI, who had expressed safety concerns to police.[1]

Based on that information, on March 25,

2019, an assistant clerk issued a warrant authorizing police to search the

defendant's apartment for "[a]ll controlled substances which have been

. . . distributed . . . in violation of [G. L.

c.] 94C," as well as materials and equipment used in their

distribution, records of their distribution, and "[a]ll money"

obtained from their sale. Police

executed the search warrant and seized items including cocaine, amphetamine

pills, oxycodone pills, marijuana, a .22 caliber Beretta pistol, ammunition,

and cash.

The defendant was indicted for trafficking

in cocaine, possession with intent to distribute both class B substances

(amphetamines and oxycodone) and a class D substance (marijuana), and offenses

arising from the unlawful possession of the firearm and ammunition. The defendant moved to suppress, arguing,

among other things, that the search warrant affidavit did not set forth

probable cause because it omitted "the type of drug(s)" the CI

purchased from the defendant. A Superior

Court judge denied the motion. After

unsuccessfully seeking both reconsideration and an interlocutory appeal, the

defendant filed a second motion to suppress evidence, arguing that the search

warrant did not describe with particularity the property to be seized. The judge denied the motion, ruling that under

Mass. R. Crim. P. 13, as appearing in 442 Mass. 1516 (2004), the

defendant had waived that argument by not raising it in his first motion. Again the defendant unsuccessfully sought

both reconsideration and an interlocutory appeal. The defendant also filed a motion to dismiss,

alleging that the Commonwealth had lost or destroyed exculpatory evidence,

which a different Superior Court judge denied.

The defendant entered pleas of guilty

conditioned on his retaining the right to appeal from the denials of both

motions to suppress and the motion to dismiss.[2] See Mass. R. Crim. P.

12 (b) (6), as appearing in 482 Mass. 1501 (2019). This appeal followed.

Discussion. Particularity requirement. The Fourth Amendment provides that "no

[w]arrants shall issue, but upon probable cause . . . and

particularly describing the . . . things to be seized." Article 14 requires that all warrants be

"accompanied with a special designation of the . . . objects of

search . . . or seizure."[3]

General Laws c. 276, § 2, provides that "[s]earch

warrants . . . shall particularly describe the property or articles

to be searched for." "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.'"

Commonwealth v. Molina, 476 Mass. 388, 394 (2017), quoting Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971).

They also provide a written document based on which a defendant may

challenge the breadth of the search. See

Commonwealth v. Holley, 478 Mass. 508 , 524 (2017).

1.

"All controlled substances" distributed in violation of

G. L. c. 94C. The defendant

argues that the search warrant's description of the items sought as "[a]ll

controlled substances which have been manufactured, delivered, distributed,

dispensed or acquired in violation of [G. L. c.] 94C" violated

constitutional and statutory particularity requirements. In the circumstances of this case, we agree.

The degree of specificity of a warrant's

description of the items to be searched for may vary according to the

circumstances and the type of items involved.

See Commonwealth v. DePina, 75 Mass. App. Ct. 842, 847 (2009). See also E.B. Cypher, Criminal Practice and

Procedure § 5:107 (4th ed. 2014).

Ordinarily, a search warrant for a controlled substance that is being

illegally possessed or distributed must name the substance for which police

have probable cause to search. See

Commonwealth v. Fernandes, 30 Mass. App. Ct. 335, 340 (1991) ("any other

illegally kept controlled drugs" impermissibly broad). The description of the controlled substance

sought need not be elaborate; its name suffices. See J.A. Grasso, Jr., Suppression Matters

Under Massachusetts Law, § 7-6[a][1][v] (2023 ed.) ("Controlled

substances may be referred to by name, e.g., heroin, cocaine, marijuana").

Catch-all categories like "any and

all controlled substances" are impermissible because they delegate too

much discretion to the officers executing the search warrant. See Fernandes, 30 Mass. App. Ct. at 340 . A warrant permitting police to seize such a

broad category would be subject only to the officers' on-the-scene

determination whether any substance they found was possessed in violation of

G. L. c. 94C. See id. Cf. Commonwealth v. Douglas, 399 Mass. 141,

144 (1987) (search warrant describing place to be searched as "premises to

be identified by Trooper Sullivan prior to execution of the warrant" did

not satisfy particularity requirements, because it "eliminate[d] the role

of the neutral and detached magistrate and substitute[d] a 'blank check' to be

filled in by a designated police officer").

Where police can specifically describe the

controlled substance sought, they must do so.

Cf. Commonwealth v. Taylor, 383 Mass. 272, 276 (1981) (description of

stolen property as "antique jewelry" not sufficiently

particular). The police knew what

narcotic the CI bought, and so this was not a situation where they "did

not have information that would allow them further to limit the

description." Commonwealth v.

McDermott, 448 Mass. 750, 770 , cert. denied, 552 U.S. 910 (2007). In such circumstances, less precision might

be acceptable. See, e.g., Commonwealth

v. Henley, 488 Mass. 95 , 119 (2021) (warrant to search cell phone for data

including contacts with persons, locations, or items associated with homicide

sufficiently particular); Commonwealth v. Freiberg, 405 Mass. 282, 299 , cert.

denied, 493 U.S. 940 (1989) (warrant seeking blood, clothing, or "any

other instrument used in crime" sufficiently particular, where police did

not know what instrument caused victim's wounds). See also, e.g., Molina, 476 Mass. at 396-397

(warrant to search all computers in apartment for child pornography not

overbroad, where data "could be easily transferred between devices"

and police "commendably" screened roommate's computer and promptly

excluded it from further search).

Nor was this a situation where an

impermissible catch-all category in the list of items sought could be excised and

the remainder of the warrant would still establish probable cause to search for

at least one other listed item described with sufficient particularity. Contrast Fernandes, 30 Mass. App. Ct. at

340-341 (in addition to impermissibly broad category of "any other

illegally kept controlled drugs," warrant also specifically sought

cocaine, and while police were permissibly searching for it they could seize

other contraband in plain view).

Contrast Commonwealth v. Lett, 393 Mass. 141, 147-148 (1984) (warrant authorized

search for diamond ring and heroin; though authorization to search for heroin

was invalid, police could seize it in plain view during search for ring).

The Commonwealth argues that any lack of

particularity in the search warrant as to the description of the items sought

was cured by the affidavit. The argument

is unavailing, for two reasons. First,

"[t]he Fourth Amendment by its terms requires particularity in the

warrant, not in the supporting documents."

Groh v. Ramirez, 540 U.S. 551, 557 (2004), citing Massachusetts v.

Sheppard, 468 U.S. 981 , 988 n.5 (1984), S.C., 394 Mass. 381 (1985). See Commonwealth v. Brown, 68 Mass. App. Ct.

261, 268 (2007). In circumstances where

a search warrant affidavit "is physically attached to the warrant and

present when the search is executed," the affidavit may "cure[] the

particularity deficiency in the warrant."

Commonwealth v. Valerio, 449 Mass. 562, 567-568 (2007).[4] See Holley, 478 Mass. at 524 n.21. Here, however, the Commonwealth did not carry

its burden of demonstrating that the affidavit was attached to the search

warrant or present at its execution. See

Valerio, supra at 568 . The preprinted

search warrant form did state that the affidavit "is hereby incorporated

by reference." But the affidavit

did not state that a copy of the affidavit was attached to the search warrant,

or that police would have a copy of the affidavit present at the search.[5] Nor did the Commonwealth present any such

information to the motion judge.

Contrast id. at 572 (affidavit was paperclipped to warrant when it

issued, and available to police during search).

Where the affidavit was not shown to be present during the execution of

the search, it did not limit the scope of the police search. See Commonwealth v. Forish, 61 Mass. App. Ct.

554, 560-561 (2004).

Second, even if the Commonwealth had shown

that the affidavit was present at the search, its language did not specify the

substance sought with particularity. The

Commonwealth argues that the affidavit's description of the substance was

sufficiently particular because it named four narcotics -- cocaine, heroin,

marijuana, and oxycodone hydrochloride.

The problem with the Commonwealth's argument is that it is contradicted

by the very words of the affidavit:

Donahue averred that he "intentionally withheld" information

"specifically identifying the narcotic" that the CI bought. See Commonwealth v. Du, 495 Mass. 103 ,

106-107 (2024) (rejecting Commonwealth's argument that recordings were not

"secret[]," where detective testified that they were "kept

secret").

Beyond that, the affidavit did not

particularly identify the substance sought.

It listed "narcotics (such as cocaine, heroin, marijuana, and/or

prescription medications like oxycodone hydrochloride pills)" (emphases

added). Apparently focusing on the

phrase "such as cocaine" listed first, the motion judge referred in

his memorandum of decision to the substance that the CI had purchased in the

second controlled purchase as "cocaine."[6] If the affidavit had named only a single

substance, we could perhaps overlook as inartful drafting the use of the

catch-all "such as," "and/or," and "like." Cf. Commonwealth v. Byfield, 413 Mass. 426,

430 (1992) (search warrant for cocaine supported by affidavit stating that in

controlled purchase informant bought a "forty," which in "common

parlance of the drug trade" meant cocaine, and was substance informant

previously bought). But because the

affidavit listed four different kinds of narcotics without disclosing which one

the CI bought, it could not have cured the catch-all description on the face of

the search warrant.

As mentioned, Donahue averred in the

affidavit that he was justified in not "specifically identifying the

narcotic" that the CI bought, because doing so might reveal the identity

of the CI. To be sure, an affidavit in

support of a search warrant may establish probable cause without including

every detail of a controlled purchase.[7]

But, other than Donahue's conclusory statement, the affidavit did not

demonstrate that naming the narcotic that the defendant sold to the CI would

have tended to identify the CI. Indeed,

it did not establish probable cause that the defendant sold any other substance

to anyone other than the CI. Moreover,

the affidavit specified the date of the second controlled purchase as "on

or about March 24, 2019," which would likely be more revelatory of the

CI's identity than would the name of the narcotic. Cf. Commonwealth v. Dilworth, 494 Mass. 579 ,

590 (2024) (rejecting argument that disclosure of police Snapchat profiles was

akin to disclosure of identity of confidential informant).[8]

The lack of particularity in a search

warrant's description of the items sought could conceivably be justified by

other circumstances set forth in an affidavit.

Here, however, the supporting affidavit did not include any information

that might have established probable cause that the defendant was selling

controlled substances other than whatever narcotic the CI bought. For example, the affidavit did not describe

any police surveillance of the dwelling, other than during the controlled

purchases, or give any reason why such surveillance would have been

impractical.[9] It did not describe any

attempts by police to seek a search warrant for a pole camera, see Commonwealth

v. Mora, 485 Mass. 360 , 376 (2020), or conduct trash pulls, see Commonwealth v.

Matias, 440 Mass. 787, 793-795 (2004).

It did not say whether anyone who lived at or frequented the apartment

had convictions for drug offenses, see Commonwealth v. Ponte, 97 Mass. App. Ct.

78 , 82 (2020).[10] It did not seek

permission to search for documents evidencing the possession, custody, or

control of the apartment, which would ordinarily be evidence of a possessory

crime, see Molina, 476 Mass. at 391 .[11]

It did not state that the affidavit was being drafted while events were

rapidly unfolding, which might be grounds for a reviewing court to overlook

minor mistakes, see Commonwealth v. Alvarez, 422 Mass. 198, 208 (1996). It did not say whether the street value of the

narcotic that the CI bought in each of the controlled purchases was consistent

with the amount of cash that police had provided to the CI -- information that

would not likely have jeopardized the disclosure of the CI's identity. "If we were ever to accept as lawful

such a broad description of [the items] to be searched [for] as appeared in

this search warrant, the circumstances would have to be far more pressing than

this record shows." Douglas, 399

Mass. at 145 .

2.

Equipment, records, and money used in distributing controlled

substances. Because the search warrant

did not specify the controlled substance sought, it also lacked particularity

in describing the accoutrements of the distribution of that substance. The search warrant sought "[a]ll materials,

products, and equipment of any kind which are used, or intended for use, in

. . . distributing . . . any controlled substance in

violation of [G. L. c.] 94C," "[a]ll books, records, and

monies used or intended for use in the . . . distribution of any

controlled substance in violation of [G. L. c.] 94C," and

"[a]ll money, which is the proceeds of the sale of any controlled

substance."

As discussed, the Commonwealth did not

establish that the affidavit was present at the search, and so the affidavit

did not cure any deficiencies in the description of items on the face of the

warrant. See Forish, 61 Mass. App. Ct.

at 560-561 . But even if we were to

consider the affidavit, it would not cure those deficiencies. Because the affidavit was insufficiently

particular as to the description of the narcotic the CI bought, it was also

insufficiently particular as to the description of records or proceeds of sales

of whatever that narcotic was. Contrast

Commonwealth v. Lima, 80 Mass. App. Ct. 114, 118-119 (2011) (affidavit

describing ongoing business, including two controlled purchases of cocaine at

stash house, established probable cause that records and proceeds of sales

would be at defendant's home).

Conclusion. The order denying the defendant's motion to

suppress evidence seized pursuant to the search warrant is reversed.[12]

So ordered.

footnotes

[1] In this

sentence Donahue used the word "narcotic," singular; elsewhere in the

affidavit he used "narcotics," plural. Our holding does not turn on whether the CI

bought one unspecified controlled substance or more than one, and so the

discrepancy is not material to our analysis.

[2] Because the

defendant's first motion to suppress raised the question whether the search

warrant affidavit described "the type of drug(s)" the CI purchased,

the judge and the Commonwealth were on notice that the defendant was

challenging the particularity of the search warrant.

[3] In the

determination of probable cause, "art. 14 provides more substantive

protection to criminal defendants than does the Fourth Amendment." Commonwealth v. Upton, 394 Mass. 363, 373

(1985). However, as to the description

of the items to be searched for, the Supreme Judicial Court has not held that

art. 14 requires greater particularity than the Fourth Amendment. See Commonwealth v. Walsh, 409 Mass. 642,

644-645 (1991), citing Commonwealth v. Sheppard, 394 Mass. 381, 389 (1985).

[4] The holding

in Valerio may appear somewhat at odds with the oft-cited principle of law that

"[w]hen considering the sufficiency of a search warrant application, our

review begins and ends with the four corners of the affidavit" (quotation

and citation omitted). Commonwealth v. Long,

482 Mass. 804, 809 (2019). When

considering the particularity of the description of the items to be searched

for, our review begins with the face of the search warrant. It expands to the affidavit as permitted in

Valerio only if the affidavit was present at the execution of the search and

used to limit its scope.

[5] Because

G. L. c. 276, § 2B, requires that the person issuing the warrant

"shall retain the affidavit," the better practice would be for the

affiant to make an additional copy of the affidavit and staple it to the search

warrant form before presenting the application to the magistrate.

[6] At the

hearing on the motion to suppress, defense counsel did refer to cocaine as a

substance that police had seized previously from a different apartment in the

building, but there was no mention of cocaine as the substance that the CI

bought from the defendant.

[7] Donahue also

averred that he had withheld information about the "weights, packaging,

and prices of the narcotics" in order to protect the identity of the

CI. "[T]he absence of this

information is not fatal to a determination of probable cause." Commonwealth v. Andre-Fields, 98 Mass. App.

Ct. 475 , 486 (2020).

[8] We are

concerned here with the particularity of the search warrant's description of

the items sought, and not with disclosure of the identity of the CI during the

pretrial discovery process. See

Commonwealth v. Whitfield, 492 Mass. 61 , 69-71 (2023); Commonwealth v.

Pena-Lara, 104 Mass. App. Ct. 680 , 686-688 (2024).

[9] In seeking

permission for police to execute the search warrant without knocking and

announcing their presence, the affidavit stated that occupants of the apartment

would be alerted to the approach of police by security cameras on the outside

of the building. However, the affidavit

did not tie those facts to any difficulty in conducting ongoing

surveillance. In fact, the affidavit

stated that the Brockton police were working with a task force that included

State police, which presumably would have access to resources such as unmarked

vehicles that could be used in surveillance.

[10] At oral

argument, counsel informed us that the defendant had no criminal record. If police learn that the target of an

investigation has no criminal record, the better practice would be to say so in

the affidavit.

[11] Despite the

lack of authorization to seize such documents, the search warrant return shows

that police seized the defendant's mail.

[12] Deciding the

case as we do, we need not reach the defendant's arguments that the affidavit

did not demonstrate the veracity of the CI, or that the indictments should have

been dismissed for loss of exculpatory evidence.