United States District Court, D. Massachusetts
ORDER ON MOTION TO SUPPRESS (DOC. NO. 25)
SOROKIN, UNITED STATES DISTRICT JUDGE
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
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,
116 North Street
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.
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.
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.
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.
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.
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
The Investigation of Mr. Holleran
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,
” 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.
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. 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.
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.
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
2. “on the person or in the possession of: [Ryan
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.
Execution of the Search Warrant
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 ...