United States v. Holleran

          ORDER ON MOTION TO SUPPRESS (DOC. NO. 25)

          LEO T. SOROKIN, UNITED STATES DISTRICT JUDGE

         Defendant Ryan Holleran is charged with: (1) possession with intent to distribute cocaine, oxycodone, and cocaine base, (2) possession of an unregistered firearm, (3) possession of a firearm with an obliterated serial number, and (4) possession of a firearm in furtherance of a drug trafficking crime. Mr. Holleran moved to suppress evidence obtained from searches of his apartment, the basement in his building, and his iPhone. The government opposed. The Court held an evidentiary hearing on October 15, 2018. After requesting and receiving further briefing from the parties, the Court heard arguments on the motion to suppress on October 26, 2018. For the reasons that follow, the motion to suppress is ALLOWED IN PART and DENIED IN PART.

         I. FACTS

         The Court makes the following factual findings based on the materials submitted by the parties and the credible testimony offered during the evidentiary hearing held on October 15, 2018.^[1]

         A. 116 North Street

         In 1970, Lucy and Carlos Pinto purchased a three-family home at 116 North Street in New Bedford, Massachusetts. Doc. No. 60 at 52. The three-story home contains one apartment on each floor and an unfinished basement. The exterior front door opens to a foyer and staircase which leads to the front door of each individual apartment. Id. at 66-67. The basement is not accessible from the front foyer. The exterior rear door similarly opens to a foyer and staircase which leads to the back door of each individual apartment. Id. at 65-66. The rear foyer also has a door which opens to a staircase leading into the basement. Id. This door provides the only access to the basement.

         The Pintos have always rented out two of the three apartments in their home. In 1985, they moved to Dartmouth and, thereafter, rented all three apartments to tenants. Id. at 61. At that time, they also hired the third-floor tenant as a custodian to care for the house. Id. at 69. Approximately five years ago, Mr. Holleran began renting the second-floor apartment. Id. at 73. The Pintos did not know Mr. Holleran prior to that time. Id. at 88. Several years ago, the Pintos sold their home in Dartmouth and returned to live in the first-floor apartment at 116 North Street. Id. at 61. About three years ago, the Pintos' custodian moved out of the third-floor apartment. Randy Schoerner and Richard Gonzalez then moved in as the new third-floor tenants. Id. at 126.

         A few years after Mr. Holleran moved into the second-floor apartment, his then-girlfriend, Kelsey, and her two children (one of whom was also Mr. Holleran's child) moved in with him. Id. at 74, 79. Kelsey lived in the second-floor apartment with Mr. Holleran until the spring of 2017. Id. at 54. While living there, Kelsey asked Mrs. Pinto on a number of different occasions to store items in the basement. Id. at 55-57. Mrs. Pinto acquiesced to each of these requests, permitting Kelsey to store Christmas decorations, children's clothes, and various other personal items against one of the basement walls. Id. At Kelsey's request, Mrs. Pinto also allowed her and Mr. Holleran to install a washer and dryer in the basement so they could do their laundry without leaving the home. Id. at 57-58.

         B. The Basement

         The Pintos keep the rear exterior door of their home locked. Id. at 68. The basement door has both a sliding bolt and a padlock to secure the door. Id. at 76. The Pintos have kept this door bolted and padlocked since moving into the home in 1970. Id. Tenants are not ordinarily provided a key to the padlock or access to the basement. When the Pintos arranged for the third-floor tenant to serve as a custodian, they gave him a key to the padlock. Id. at 69. When he moved out of the house two years ago, he returned the key. Id. at 72.

         The basement consists of an unfinished open area available for storage, two separate storage rooms where the Pintos keep personal items, and the various utility systems for the home which are located in the open area. Id. at 63-64, 92. Each of the two storage rooms has a door separating it from the open area, which the Pintos keep locked at all times. Id. The Pintos also store some of their property in the open area. Id. at 65.

         When Kelsey requested permission to store items in the basement, Mrs. Pinto provided her a key to the padlock. Id. at 71. When Kelsey moved out, she did not return the basement key, and Mrs. Pinto never requested it from Mr. Holleran. Id. at 83. Mr. Holleran retained permission to use part of the open area of the basement for storage and to access his washer and dryer for laundry. The Pintos never provided Randy Schoerner or Richard Gonzalez permission to use the basement or a key to the basement padlock. Id. at 72. As a result, the third-floor tenants did not use the basement. At the time of the search, Mr. Holleran was the only tenant with permission to use the basement. Mrs. Pinto had designated a space within the open area for him to use, and only his or Kelsey's property occupied that area. Mrs. Pinto never opened or otherwise handled the boxes, bags, or other containers in his area. Id. at 95. When Mrs. Pinto allowed Kelsey and Mr. Holleran to access the open area of the basement, she did not remove her property, but rather agreed to share this private space with them. She also did not remove the padlock from the door to the basement.

         C. The Investigation of Mr. Holleran

         In the affidavit submitted in support of the search warrant, Detective Kevin Barbosa of the New Bedford Police Department described his investigation of Mr. Holleran. Doc. No. 25-1. On or after October 9, 2017, a confidential informant (“CI”) known to Detective Barbosa reported that a male known as Ryan Holleran sold cocaine from 116 North Street, Apartment 2, New Bedford, Massachusetts. Id. at 3. The CI told Detective Barbosa that he or she purchased cocaine from Mr. Holleran through an “unwitting party, ”^[2] that the CI had observed this other person make phone contact with Mr. Holleran, and that the CI had observed Mr. Holleran sell cocaine. Id. The CI also provided Detective Barbosa with a description of Mr. Holleran, as well as the make, model, and license plate number of his car. Id.

         While the affidavit contains no information from other investigations in which Detective Barbosa (or any other officer) found the CI reliable, it describes in detail the investigation Detective Barbosa undertook in response to the information provided by the CI. Detective Barbosa confirmed that Ryan Holleran lived at the apartment based on Eversource utility records, Registry of Motor Vehicle (“RMV”) records, and a police report regarding a domestic disturbance from May 12, 2017.^[3] Id. at 4-5. The RMV records also confirmed that Mr. Holleran operated the type of vehicle described by the CI with the license plate number provided by the CI. Id. at 4. Board of Probation records revealed that Mr. Holleran had ten adult arraignments for possession or distribution of controlled substances. Id. at 5. While conducting surveillance, Detective Barbosa observed Mr. Holleran coming and going from the home in the identified car. Id. at 5. Detective Barbosa also observed three separate events “consistent” with drug distribution, which he described in detail in his affidavit. Id. at 5-6.

         Finally, Detective Barbosa arranged two “controlled” purchases of cocaine from Mr. Holleran. These followed typical practice except in one material way. Instead of the CI making the transaction him or herself, the CI gave the buy money to the “unwitting party, ” who in turn went to 116 North Street, entered the home, and then returned with cocaine for the CI. Id. at 6-7. Officers followed both the CI and the unwitting party at all relevant times but did not observe where within the home the unwitting party went or with whom he or she met. Id.

         Based upon the foregoing information, on November 9, 2017, Detective Barbosa applied for a warrant to search Apartment 2 at 116 North Street for evidence of drug distribution. A New Bedford District Court Clerk-Magistrate, Patrick Walsh, issued a no-knock warrant on the same day. Doc. No. 25-2. The warrant authorized a search of the following areas:

1. “116 North Street Apartment 2 in New Bedford, Massachusetts. 116 North Street Apartment 2 is a multi family dwelling with green wood shingles with a white trim around the windows. The numbers 116 are affixed to the left of the front door. The front door faces north. which [sic] is occupied by and/or in the possession of: Ryan Holleran”;

2. “on the person or in the possession of: [Ryan Holleran]”;

3. “any person present who may be found to have such property in his or her possession or under his or her control or to whom such property may have been delivered.”

Id. New Bedford police officers executed the warrant the next day. Doc. No. 25-3 at 1.

         D. Execution of the Search Warrant

         Officers arrived at 116 North Street at approximately 6:00 p.m. on November 10, 2017. Doc. No. 60 at 12-13. They forcibly entered the rear exterior door of the building, entered the home, ascended the rear stairs, and then forcibly entered the second-floor apartment rear door. Doc. No. 25-4 at 1. Inside the apartment, they found only Mr. Holleran, who was detained without incident. Id. In the search of the apartment, the officers seized two plastic bags which each contained 100 tabs of Oxycodone, materials used for cutting and bagging controlled substances, four cellphones, and various other items not relevant to the issues raised by the pending motion. Id. at 1-2. The officers found no cocaine in the apartment. Doc. No. 60 at 18. They did find a set of three keys behind the frame of a built-in bookshelf. Id. at 48. Detective Barbosa and Sergeant Tyson Barnes took these keys and went down the rear staircase to the basement door. Both officers observed the padlock in the unlocked position. Id. at 20, 42. One observed the sliding bolt ...