Com v. Escalera

Commonwealth v. Jose M. Escalera

79 Mass. App. Ct. 262

Appeals Court

April 14, 2011

Criminal, Drugs, Firearms, Certificates of Analysis, Sixth Amendment, Confrontation Clause.

The defendant was convicted for various drug and firearm offenses and argued on appeal two separate issues: first, that the admission of certificates of drug and ballistics analyses without live testimony violated his right to confrontation under the Sixth Amendment. Second, he claimed that the evidence seized from his residence should have been suppressed, as the police lacked probable cause. The Appeals Court reversed everything but the ammunition conviction because of the erroneous admission of the certificates; however, the Court also determined that there indeed was probable cause to search the residence, so the case was remanded for a new trial on those issues.

Issue One: The Sixth Amendment

Ballistics and drug certificates of analyses were admitted at trial despite the defendant's objection. As such, the certificates violated the defendant’s right to confrontation. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). As for whether the admission of the certificates was harmless beyond a reasonable doubt, it was noted that even if a defendant does not contest the composition of the alleged drugs, or the operability of a firearm, the "defendant's theory of his case cannot relieve the Commonwealth of its burden of proving every element of a crime beyond a reasonable doubt." Commonwealth v. Shea, 398 Mass. 264, 269 (1986). The Court concluded, based on Commonwealth v. Muniz, 456 Mass. 166, 172-173 (2010), that the admission of the certificate of ballistics analysis with respect to the ammunition charge was harmless beyond a reasonable doubt. The crime of unlawful possession of ammunition required the Commonwealth to show that the bullets found in the defendant's gun were "designed for use in any firearm." G.L. c. 140, § 121. Here, the Commonwealth introduced in evidence the gun and the rounds found inside the gun when it was taken by the police. A police officer testified at trial that the rounds were found inside the gun.

Issue Two: The Motion to Suppress.

The defendant claimed that the affidavit supporting the application for a search warrant did not establish a "nexus" with his residence sufficient to establish probable cause. To determine whether a sufficient nexus has been shown, the affidavit is read as a whole. See Commonwealth v. Blake, 413 Mass. 823, 827 (1992). "The nexus may be found in `the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide' the drugs he sells." Commonwealth v. O'Day, 440 Mass. 296, 302 (2003). "It follows that probable cause to expect that drugs will be present in a home is not established by the fact that the defendant lives there." Commonwealth v. Pina, 453 Mass. at 441. Just as residency alone does not establish probable cause, "the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction's conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence" (emphasis added). Commonwealth v. Medina, 453 Mass. 1011, 1011 (2009). One cannot exclude a drug dealer's pattern of leaving and returning to his residence for each drug sale. A pattern of activity giving rise to a reasonable suspicion that a dealer's residence is being used as the base for his drug operation provides sufficient nexus to search his residence.

The affidavit said that a confidential informant (CI) told police that he knew a heroin dealer in Brockton who used two different cars (one a white Toyota, the other a green Audi with fancy wheels) to deliver drugs to prearranged locations. The police worked with the CI to make four controlled purchases of heroin over the next two weeks. Each time, the CI called the defendant and asked for a specific quantity of drugs. The defendant specified the meeting place. The defendant arrived by car (either the white Toyota or the green Audi) and picked up the CI. He drove a short distance with the CI in the car, during which a sale of heroin took place. After each of these sales, the defendant drove directly to his residence and entered the house through its rear entrance. In addition, on one of these occasions, police observed the defendant drive the Toyota away from his residence a few minutes after arranging a sale by telephone with the CI. The defendant then drove directly to the prearranged location where he sold drugs to the CI.

The defendant was seen leaving and returning to his residence multiple times to what were either drug sales or readily inferred to be drug transactions. A pattern of activity such as this provided sufficient nexus to a dealer's residence to satisfy probable cause to search it. In addition, the defendant's use of different cars makes it more likely that he stored drugs in his residence, rather than in the vehicles. As such, the defendant's motion to suppress was properly denied.

Issue Three: Other Issues

The judge correctly determined that the defendant did not have an objectively reasonable expectation of privacy in the basement to which the landlord also had full access. See Commonwealth v. Williams, 453 Mass. 203, 208-209 (2009). There was no error in denying the defendant's motion for a required finding of not guilty regarding the charges based on items discovered in the basement. The evidence, taken in the light most favorable to the Commonwealth, was sufficient to allow a jury to find, beyond a reasonable doubt, that the defendant had constructive possession over the items in the basement.

For the reasons set forth above, the defendant's conviction of possession of ammunition was affirmed. The judgments on the other indictments were reversed, the verdicts were set aside, and the cases were remanded to the Superior Court for a new trial.

So ordered.

Judgments affirmed.

--Prepared by JWK.