United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
SUPRESS (Docket No. 56)
TIMOTHY S. HILLMAN DISTRICT JUDGE
Flynn (“Defendant”) moves this Court to suppress
the evidence obtained as a result of the interception of wire
communications and the search of Defendant's home. For
the reasons stated below, Defendant's motion (Docket No.
56) is denied.
and early 2017, Police believed Vito Nuzzolilo was involved
in dealing large quantities of heroin and cocaine in and
around Worcester, Massachusetts. Before obtaining a wiretap
from this Court, the Government had investigated Nuzzolilo
for almost a year. (Docket No. 61-2 ¶ 20)
(“Wiretap Aff.”). During this period, the
Government utilized a variety of investigative methods
including: physical surveillance, audio and video
surveillance, telephone toll records, pen register and
trap-and-trace information, telephone subscriber information,
GPS tracking, statements of confidential sources, monitored
and/or recorded phone calls, and queries of law enforcement
records and intelligence databases. Id. ¶ 17.
learned that Nuzzolilo primarily distributed drugs from his
top-floor apartment on Grafton Street in Worcester
(“Grafton Apartment”). (Docket No. 61-1
¶¶ 6-7) (“Apt. Aff.”). Further,
Nuzzolilo and his associates accessed the Grafton Apartment
from a rear entrance via a parking lot. Wiretap Aff. ¶
65. This parking lot was fenced and/or walled on all sides,
and Nuzzolilo maintained video surveillance of the area.
Id.; Apt. Aff. ¶ 10.
confidential informant was able to learn that Nuzzolilo had
sources in New York and Boston. Wiretap Aff. ¶ 61. In
addition, the informant made a number of controlled
purchases. For instance, on July 20, 2016, the informant met
with Nuzzolilo at the Grafton Apartment and purchased 10
grams of heroin. Id. ¶ 28. On August 5, 2016,
the informant made another purchase of 30 grams of heroin
from Nuzzolilo's partner, Kristin Little. Id.
¶ 30-33. On December 6, 2016, the informant again
purchased 20 grams of heroin from Nuzzolilo. Id.
¶ 37-39. Finally, on January 30, 2017, the informant
purchased another 20 grams of heroin from Nuzzolilo.
Id. ¶ 40-43.
April 2017, because investigators lacked detailed knowledge
of Nuzzolilo's sources of supply, the Government sought
and obtained a wiretap authorized by this Court on
Nuzzolilo's cell phone to learn more about how and from
whom he acquired drugs.
Government alleged that the cooperation of the informant
alone, or in conjunction with other investigative means short
of the interception of electronic and wire communications,
would not be sufficient to meet the goals of the
investigation. Id. ¶ 61. The Government noted
that although the informant bought drugs from Nuzzolilo, the
informant was unlikely to fully infiltrate or understand the
operations of the wider drug trafficking organization.
Id. For instance, the informant was “not privy
to information such as the actual identify of NUZZOLILO's
sources of supply, the distribution network of the Target
DTO, or the organization structure of the Target DTO.”
addition to the inability of the informant to provide more
information about Nuzzolilo's supply chain, the affiant
noted difficulties conducting physical surveillance and
related investigative techniques at the Grafton Apartment.
Wiretap Aff. ¶¶ 65-71; 92-93. According to the
Government, the layout of the Grafton Apartment and its
enclosed parking lot-coupled with Nuzzolilo's video
surveillance of the area-meant that efforts to conduct
surveillance of those accessing the parking lot would have
likely led to detection. Id. The Government argued,
however, that “continued surveillance done in
conjunction with electronic surveillance” would
“lead to the development of evidence sufficient to
prosecute multiple members” of the enterprise.
Id. ¶ 71.
intercepted pursuant to the wiretap revealed that Nuzzolilo
communicated with drug customers, often using coded language
to refer to drugs. See, e.g., Apt. Aff. ¶¶
19, 23, 41. Further, Nuzzolilo communicated with drug
suppliers. Id. ¶¶ 25, 26, 28, 29, 33-35,
43. Interceptions revealed that the Defendant was one of
these suppliers. See generally Docket No. 61-3
(“Flynn Aff.”). Defendant used a phone subscribed
in the name Reid Marinelli. Id. ¶ 8. Agents
confirmed that the communications were in fact from Defendant
when “Marinelli” stated that he wanted to see
Nuzzolilo on April 14, 2017 and updated Nuzzolilo on his
whereabouts. Agents shortly thereafter observed the Defendant
meeting with Nuzzolilo in a car outside of the Grafton
Apartment. Id. ¶¶ 10-14.
Government developed a substantial amount of evidence from
the wiretap demonstrating that Defendant supplied drugs to
• In April 2017, Nuzzolilo owed a substantial drug debt
to Defendant, and Defendant made plans to collect the money
from Nuzzolilo. Id. ¶¶ 10-13.
• On April 14, 2017, Defendant traveled to the Grafton
Apartment, presumably in order to collect a portion of the
money Nuzzolilo owed him. Id. ¶ 14.
• On April 22, 2017, Nuzzolilo informed Defendant that
he was in the process of collecting outstanding drug debts
and would soon have money to pay Defendant. Two days later,
however Nuzzolilo informed Defendant that he needed more time
to collect the money that he owed Defendant. Id.
• On April 27, 2017, Nuzzolilo told Defendant that he
had a lot of money (“paperwork”) and drugs
(“stuff”). Nuzzolilo told Defendant that he was
trying to sell the drugs in order to generate more money to
pay Defendant. Defendant replied, “I just got people
breathing down my neck buddy.” Id. ¶ 17.
• On April 30, 2017, Nuzzolilo informed Defendant that
he was “almost finished” and that he needed to
see Defendant the next day. In addition, Nuzzolilo asked
Defendant to “be ready for me”-presumably asking
Defendant to be prepared to re-supply Nuzzolilo. Defendant
replied, “Ready when you are.” Id.
• The next day, Nuzzolilo called Defendant to discuss an
“issue” regarding “Thommy Walker, ” a
“kid that works with me . . . up in Maine.”
Id. ¶ 20. Nuzzolilo was apparently referring to
Thomas Walker, who had been arrested on April 27, 2017 after
leaving the Grafton Apartment and stopped with approximately
1.9 ounces of cocaine in his car. Apt. Aff. ¶¶
15-18. During an intercepted call before this stop, Nuzzolilo
agreed to provide two ounces of cocaine (“two
onions”) to Walker and directed Kristin Little to
distribute the cocaine to Walker. Id. ¶ 16. On
May 1, 2017, when Nuzzolilo called Defendant, he explained
that he had given Walker “two onions” and was
unable to collect $4, 000 that he expected to receive from
Walker due to Walker's arrest. Flynn Aff. ¶ 20.
Defendant replied, “I need some paperwork from you so
what are we gonna do”, and Nuzzolilo replied that
Walker's arrest was “Fucking up my
timetable.” Nuzzolilo further stated, “I got
plenty: I got 50 racks I been sitting on, I just gotta go
burn them off. Fire. I'm all out of the whi-I got plenty
of one but nothing of the other. That's my issue.”
According to the Government, Nuzzolilo was indicating that he
had $50, 000 worth of heroin (“50 racks” of
“fire”) that he could sell to generate money to
pay Defendant, but he was seeking to acquire additional
cocaine (“the whi” and “the other”).
Defendant responded, “it's been so long that my
people been up my ass. I'm actually even giving them some
of my own paperwork and you know I got bills due
today.” Apparently, Defendant's suppliers were
applying pressure and he had been using his own money
(“paperwork”) to cover Nuzzolilo's debts.
Defendant further directed Nuzzolilo to “give me what
you can for today and then we'll see what we can do.
I'll see if I can make something happen for you but at
this point, it may or may not happen.” Defendant was
presumably telling Nuzzolilo to pay him today and that
Defendant would attempt to secure additional cocaine for
• Later the same day, Nuzzolilo informed Defendant that
he had $6, 000 (“6 racks”) and was in the process
of collecting more to be paid to Defendant that night.
Id. ¶¶ 22-23.
• Around the same time, Nuzzolili was telling certain
customers that he had run out of cocaine. Id. ¶
26. For instance, Nuzzolilo replied to one apparent customer,
“I'm only with Carlos at the moment. I will not see
the lady until later.” Presumably, Nuzzolilo was
indicating that he only had heroin (“Carlos”) and
would not have cocaine until later that day (“I will
not see the lady until later”). Id.; see
also Id. ¶ 26 n.8.
• Later on May 1, 2017, GPS data showed that Nuzzolilo
traveled to almost the exact location of Defendant's
home. After leaving Defendant's home, Nuzzolilo traveled
to his studio at 75 Webster St. in Worcester, Massachusetts
(the “Band Room”). That evening, Nuzzolilo
indicated that he now had a supply of cocaine at the Band
Room. Id. ¶ 26(b).
• Also on May 1, 2017, as well as the following day,
Nuzzolilo complained to Defendant about the quality of the
cocaine that he obtained from Defendant. Id.
¶¶ 27-28. Accordingly, Nuzzolilo and Defendant
discussed the return of the product and Defendant agreed to
supply Nuzzolilo with new product. Defendant ensured that his
source would “prepare right in front of me and show me
there's nothing wrong with it.” Id. ¶
• On May 4, 2017, GPS data indicated that Nuzzolilo
again traveled within 1, 000 feet of Defendant's home in
Leicester, Massachusetts. Id. ¶ 29.
• After this trip, Nuzzolilo sent a text to Kristin
Little that referenced Defendant's nickname (“Big
Boy”) and informed her that he was ...