Heard: March 7, 2017.
found and returned in the Superior Court Department on August
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.
M. Nixon, Assistant District Attorney (Graham G. Van Epps,
Assistant District Attorney, also present) for the
F. Hennessy (John M. Thompson also present) for the
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy,
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 (c0; 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. 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 large quantity of cocaine, cellular
telephones, drug paraphernalia, and ammunition.
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.
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.
Investigation and warrant application.
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.
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, his alleged cocaine supplier, police
learned the locations of the transactions, the amount of
cocaine Hairston agreed to purchase from Johnson, and the
Transaction on April 23, 2014.
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 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.
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 "01' boy, " and
informed 01' boy that Hairston wanted "two."
Hairston asked if the supplier would "come this
way" (toward Framingham). Johnson replied that 01'
boy would be there "if you want him to."
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."
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 Johnson arranged to meet at a particular department store
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
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 ...