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United States v. Nuzzolilo

United States District Court, D. Massachusetts

January 7, 2019




         Vito Nuzzolilo (“Defendant”) moves this Court to suppress the fruits of ten search warrants and three orders authorizing the interception of phone communications. He also moves for a Franks hearing in advance of consideration of the issues raised by his motion to suppress. For the reasons stated below, Defendant's motion (Docket No. 126) is denied.


         In 2016 and early 2017, Defendant is alleged to have sold large quantities of heroin and cocaine in and around Worcester, Massachusetts. He dealt the drugs from both his apartment on Grafton Street in Worcester and a basement studio on Webster Street in Worcester.

         In 2016, the Drug Enforcement Administration (“DEA”) began investigating the Defendant. The investigation relied on evidence derived from surveillance, car-stops, court-authorized warrants, and information provided by a confidential informant (“CS-1”). CS-1 made four controlled buys of heroin, three from the Defendant and one from the Defendant's girlfriend, Kristen Little. Agents conducted surveillance during these controlled purchases and observed them through undercover agents present on the scene. For instance, on December 5, 2016, an agent was situated only a few feet away from the Defendant and CS-1 and observed a hand-to-hand transaction at Defendant's vehicle. In addition, agents observed text messages exchanged between CS-1 and the Defendant where CS-1 arranged to buy heroin from Defendant. Finally, agents also recorded audio and/or video of three of the four controlled buys.

         After the first two controlled purchases, but before the third and fourth, agents received an unverified tip from the Worcester Police Department (“WPD”) that an unnamed person at Defendant's apartment had possessed a gun. The physical description of the person matched CS-1. Further, the WPD's source indicated that the unnamed person had been at Defendant's Apartment while the source was there to purchase heroin. The source also indicated that CS-1 worked with Defendant and sold drugs on his behalf. The DEA was unable to corroborate or disprove the information but confronted CS-1 in person and reminded him/her of the obligation to refrain from such conduct. In April 2017, agents intercepted phone communications between CS-1 and Defendant that revealed CS-1's involvement in unauthorized cocaine distribution. Agents promptly brought the new evidence to the attention this Court.

         Following the controlled buys, agents utilized “ping” warrants[1], search warrants for Defendant's two apartments, his vehicle, and his person, and a wiretap to intercept communications from Defendant's phone. The search warrant materials for the first two ping warrants and the first wiretap order were signed in or before April 2017 and relied on the controlled buys to establish probable cause. The materials for the final two ping warrants, the latter wiretap orders, and the physical search warrants, which were all signed in May 2017, did not. In addition, the applications that did rely on the controlled purchases to establish probable cause contained information regarding the suspected and/or established criminality of CS-1 to help the judicial officer assess his/her credibility.

         For instance, in the application for the first ping warrant, the affiant noted: “Agents have received unverified information that the CS has, since the aforementioned transactions, engaged in illegal behavior-including participating in drug sales-without the knowledge or oversight of law enforcement. Agents have not confirmed the accuracy of this information.” (Docket No. 142-1 ¶ 12). Similarly, the application for the second ping warrant noted:

According to the Worcester Police Department, someone witnessed the CS in possession of a handgun in November 2016; Worcester Police also indicated that the CS was present in NUZZOLILO's apartment during at least one drug transaction. During the course of this investigation, the CS has been paid $600 (as of March 12, 2017) by the DEA for providing information. In addition, DEA communicated with the District Attorney's Office regarding the probation status of the CS, in accordance with DEA policy, and conveyed the fact that the CS was cooperating with law enforcement.

(Docket No. 142-2 ¶ 12). Finally, the first wiretap application contained identical language as the second ping warrant and additionally noted that “CS-1 has been arrested several times and convicted of felonies such as Fraud, Burglary, and Larceny, and is on probation in the Commonwealth of Massachusetts for Larceny over $250.00 until July 28, 2017.” (Docket No. 142-3 ¶ 24).

         Franks Standard

         A search warrant affidavit “must set forth particular facts and circumstances underlying the existence of probable cause.” Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674 (1978). When agents rely on tips from confidential informants to form the basis for probable cause, “the affidavit must recite some of the underlying circumstances from which the informant concluded that relevant evidence might be discovered, and some of the underlying circumstances from which the officer concluded that the informant . . . was credible or his information reliable.” Id. (quotation marks and citations omitted); see also United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (Where the primary basis for a probable cause determination is information provided by a confidential informant, the affidavit must provide some information from which a magistrate can credit the informant's credibility.”).

         “Assuming such conditions are met, it has long been the case that ‘[a]n affidavit submitted in support of a search warrant application is presumed valid.'” United States v. Graf, 784 F.3d 1, 7 (1st Cir. 2015) (alteration in original) (quoting United States v. Grant, 218 F.3d 72, 77 (1st Cir. 2000). Thus, “a defendant must meet a high bar even to get a Franks hearing in the first place.” United States v. Tzannos, 460 F.3d 128, 136 (1st Cir. 2006). Before conducting a Franks hearing, a defendant must make “two ‘substantial preliminary showings': (1) that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth; and (2) the falsehood or omission was necessary to the finding of probable cause.” United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012). To meet this burden, a defendant “must prove that the affiant in fact entertained serious doubts as to the truth of the ...

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