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Commonwealth v. Perkins

Supreme Judicial Court of Massachusetts, Suffolk

October 10, 2017

COMMONWEALTH
v.
MARK PERKINS.

          Heard: March 7, 2017.

         Indictments found and returned in the Superior Court Department on August 13, 2014.

         A 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.

          Nicole M. Nixon, Assistant District Attorney (Graham G. Van Epps, Assistant District Attorney, also present) for the Commonwealth.

          Robert F. Hennessy (John M. Thompson also present) for the defendant.

          Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.[1]

          GAZIANO, J.

         A 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.[2] 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.

         The 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.

         We 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.

         1. Background.

         a. Investigation and warrant application.

         On 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.

         Pursuant 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, [3]his alleged cocaine supplier, police learned the locations of the transactions, the amount of cocaine Hairston agreed to purchase from Johnson, and the purchase price.

         i. Transaction on April 23, 2014.

         The 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.

         At 11 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."

         When 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."

         At 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 parking lot.

         At 2:35 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 my peeps."

         At 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 ...


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