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United States v. Brandao

United States District Court, D. Massachusetts

September 19, 2017

UNITED STATES OF AMERICA
v.
DANY L. BRANDAO

          MEMORANDUM AND ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Defendant Dany L. Brandao stands accused of two counts of possession with intent to distribute and distribution of fentanyl on October 7, 2016 and November 8, 2016 in Brockton, MA, see 21 U.S.C. § 841(a)(1). Count 2 further alleges that the offense involved 40 grams or more of fentanyl, see 841(b)(1)(B)(vi). Brandao has moved to suppress evidence obtained from a search of his residence on the ground that the affidavit in support of the warrant does not provide sufficient information to find probable cause of unlawful activity at that residence. Docket # 28. The court heard the parties’ arguments on September 13, 2017.

         I. Facts

         On November 4, 2016, as a result of a combined federal and state narcotics investigation, Detective Jeffrey Costello, a Brockton police officer, filed an application for a search warrant of 134 N. Leyden Street, Brockton, MA 02302. See Docket # 29-1, at 1.[1] The search warrant was issued by a clerk magistrate of the Brockton District Court. In support of his application, Det. Costello alleged the following facts, which are undisputed.

         A. Identifying Defendant

         In September 2016, a confidential informant (“CI”) told East Bridgewater detective Dave Perrault that a Cape Verdean male named “Danny,” who drove a white Infinity with Massachusetts license plate number 323FX6, “was dealing heroin/fentanyl in the City of Brockton,” id., at 4. A search on that license plate number showed that the vehicle belonged to Clara Darosa of 134 N. Leyden Street, Brockton, MA, who, police uncovered, is the mother of Dany Brandao. The CI positively identified Brandao as the individual he spoke of as “Danny.” In response to specific requests, Federal Probation Officer Jessica Turkington informed the police that Brandao was on federal supervised release in this court pursuant to a sentence for possession with intent to distribute over 1 kilogram of heroin. She “confirmed that Brandao lives at 134 N. Leyden Street, Brockton, MA,” and further provided his contact telephone number. Id.

         B. The Controlled Buys

         The affidavit describes four separate controlled buys from defendant.

         1. October 7, 2016

         On October 7, 2016, Det. Perrault, acting in his undercover capacity, arranged to meet with Brandao to purchase 2.5 grams of heroin for $150.00. Brandao directed Det. Perrault to meet him at Hamilton Street in Brockton, MA. Several other agents established surveillance of Hamilton Street. At 1:07 pm, Det. Perrault sent a text message to Brandao to inform him that he was at the location. Approximately eight minutes later, Brandao arrived in an Infiniti sedan bearing the license plate number 323FX6. Det. Perrault entered the passenger side of Brandao’s vehicle. Brandao handed Det. Perrault a small clear plastic bag that contained a white powdery substance, which officers later determined to be fentanyl and acetyl fentanyl. Det. Perrault paid Brandao $150.00 and left Hamilton Street, at which point agents terminated surveillance of Brandao.

         2. October 11, 2016

         On October 11, 2016, Det. Perrault made a second controlled purchase of fentanyl from Brandao. Shortly after 11:00 am, officers established surveillance of 134 N. Leyden Street and observed the Infiniti sedan with the license plate number 323FX6 parked outside the residence. At approximately 2:15 pm, Brandao responded to Det. Perrault, who arranged to purchase 5 grams of heroin/fentanyl from Brandao. They agreed to meet at the same spot on Hamilton Street as they did on October 7. Around 2:40 pm, an undercover agent observed Brandao leave 134 N. Leyden Street and get into the Infiniti sedan. Brandao drove directly from 134 N. Leyden Street to the meeting spot on Hamilton Street and arrived at 2:47 pm. Det. Perrault got out of his vehicle and into Brandao’s car to conduct the controlled buy. In exchange for $300.00, Brandao gave Det. Perrault two clear plastic bags, each containing white powder, which Det. Perrault believed to be fentanyl. Officers terminated surveillance once Det. Perrault left.

         3. October 25, 2016

         On October 25, 2016, officers established surveillance of 134 N. Leyden Street around 11:00 am. At 11:37 am, Det. Perrault made contact with Brandao and agreed to meet in twenty-five minutes on Hamilton Street. Around 12:12 pm, agents observed Brandao leave 134 N. Leyden Street and get into a white Ford Fusion that had been parked across the street from the residence. Officers ran a search of the vehicle’s license plate and learned that it was a rental car leased to Brandao’s girlfriend. Brandao drove directly from 134 N. Leyden Street to Hamilton Street and arrived around 12:21 pm. Again, Brandao gave Det. Perrault two plastic bags that each ...


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