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Commonwealth v. Colondres

Supreme Judicial Court of Massachusetts, Hampden

April 13, 2015

Commonwealth
v.
Johnny Colondres

Argued December 2, 2014.

Indictments found and returned in the Superior Court Department on March 7, 2012.

A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J., and the cases were heard by Tina S. Page, J.

The Supreme Judicial Court granted an application for direct appellate review.

Merritt Schnipper for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[27 N.E.3d 1274] Gants, C.J.

Before trial, the defendant, Johnny Colondres, moved to suppress evidence obtained from his apartment by Springfield police during the execution of an " anticipatory search warrant." The defendant claimed that police had executed the search before the " triggering events" stated in the affidavit had occurred, and that therefore the search should be treated as warrantless and the evidence suppressed. The motion judge denied the defendant's motion to suppress, and after a jury-waived trial before a different judge, the defendant was convicted of trafficking in heroin and cocaine, and of unlawful possession of marijuana with intent

Page 193

to distribute.[1] The defendant appealed, and we granted his application for direct appellate review. We conclude that where, as here, the Commonwealth applies for an anticipatory search warrant and the judicial authorization to execute the search is conditioned on the occurrence of a specific future event, the search is authorized by the warrant where there is equivalent compliance with that condition precedent. Because we conclude that, in this case, there was both equivalent compliance with the warrant's condition precedent and probable cause to search the defendant's residence once equivalent compliance was achieved, we affirm the denial of the motion to suppress and the resulting convictions.

Background.

The facts are not in dispute. The search of the defendant's apartment at 250 Oakgrove Avenue in Springfield arose out of an investigation by the [27 N.E.3d 1275] Springfield police department of the defendant's nephew, Carlos Colondres.[2] As detailed in the affidavit by Officer John Wadlegger in support of the application for the warrant to search the defendant's apartment, the police were investigating the sale of cocaine and heroin by a man known as " Loso." The investigation was assisted by an anonymous " cooperating source" (CS), who informed Officer Wadlegger that the CS had purchased cocaine from Loso " numerous times over the past month." The CS provided Officer Wadlegger with Loso's cellular telephone number and the license plate numbers of the two vehicles Loso operated, one of which the CS identified as belonging to Loso's girl friend. The CS informed Officer Wadlegger that Loso lived with his girl friend " on a side street off of St. James Ave. in Springfield." The CS also informed Officer Wadlegger that the CS had seen Loso in possession of heroin for sale, and that Loso had offered to sell heroin to the CS.

After conducting a registry of motor vehicles inquiry, Officer Wadlegger determined that one of the vehicles identified by the CS was registered to Carlos, and the second vehicle was registered to ...


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