Search and seizure – Warrantless entry – Nexus

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Where (1) police found evidence of the defendant’s illegal drug activity during a search of an arrested suspect’s apartment and (2) the commonwealth now moves to reconsider a court order allowing the defendant’s motion to suppress the evidence, there were no exigent circumstances justifying the warrantless entry of the apartment, but a sufficient nexus did exist between that suspect’s criminal activity and the apartment to establish probable cause to search.

Motion reconsider allowed; motion to suppress denied.

Judge’s reasoning

“The occupants of 16 Crowninshield Street did not know of [Darryl] Eubanks’ arrest at the time of the warrantless entry. Where there is no apparent danger that evidence or contraband is at risk of being destroyed, no exigent circumstance exists to justify warrantless entry to preserve evidence. …

“Where no exigent circumstance exists, the police are not entitled to create their own exigent circumstance in order to bypass the search warrant requirement. … Before the police officers’ very loud announcement of their presence, and the reaction of the occupants of 16 Crowninshield Street, no exigent circumstance existed.

“The fact that a defendant lives at a location does not establish probable cause to search that location. … Evidence of a defendant driving to or from his home once, without more, is also insufficient to establish a nexus between the defendant’s home and his criminal activity. …

“Where there is something more, however, than the fact of a defendant’s residence or a single arrival to or departure from that residence, there may be a sufficient nexus between the defendant’s criminal activity and his home. …

“The affidavit in support of the search warrant for 16 Crowninshield Street indicates several significant manifestations of ‘something more,’ and does so unaided by the evidence obtained from the illegal warrantless entry. First, each of the controlled buys was completed within walking distance of Mr. Eubanks’ residence at the Tannery Apartments.

“Second, as to at least one controlled buy, Mr. Eubanks received the order on his cell phone and, under surveillance, left his home shortly thereafter to complete the sale. …

“Third, the affidavit establishes a pattern of delivery utilized by Mr. Eubanks in which he arranged to be picked up in the area of the Tannery Apartments, conducted the transaction, and was then dropped off a short distance away. …

“The affidavit in support of the search warrant for 16 Crowninshield Street establishes probable cause to search that location even when it is read without the evidence obtained from the illegal warrantless entry. …

“The informant’s allegations relied upon in the affidavit in support of the search warrant for 16 Crowninshield Street were sufficiently corroborated so as to satisfy both the basis of knowledge test and the veracity test for determining the reliability of the confidential informant. … Deference is shown to the issuing magistrate’s determination of probable cause. …

“It is also ‘well settled that independent police corroboration of the information’s [sic] tip can compensate for deficiencies in either or both prongs [of the Aguilar-Spinelli test] and thus satisfy the probable cause requirement under art. 14.’ … Any deficiencies in the information offered by the informant were compensated for by police corroboration when the police completed two controlled buys from Mr. Eubanks. The police also confirmed the cellular phone number provided by the informant when they dialed the number from the police station.”

Commonwealth v. Noel (Lawyers Weekly No. 12-222-11) (10 pages) (Lu, J.) (Essex Superior Court) (Docket No. 10-684) (Aug. 19, 2011).