Commonwealth v. Bryan A. Henry.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-445

COMMONWEALTH

vs.

BRYAN A. HENRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was indicted and arraigned in the Superior

Court for trafficking fentanyl with a net weight of more than

ten grams. See G. L. c. 94C, § 32E (c1/2). He moved (1) to

dismiss the indictment; (2) for a Franks v. Delaware, 438 U.S.

154, 155-156 (1978), hearing; and (3) to suppress evidence

discovered pursuant to two search warrants. The judge

determined that the defendant had not demonstrated his

entitlement to a Franks hearing and, after a nonevidentiary

hearing, the judge denied the defendant's motions in a

thoughtful written decision. Later, before a different judge,

the defendant tendered a conditional guilty plea to the lesser

included offense of possession with the intent to distribute a
class A substance, and then filed this appeal challenging the

motion judge's rulings. See Mass. R. Crim. P. 12 (b) (6), as

appearing in 482 Mass. 1501 (2019) (rule 12 [b] [6]). We

affirm.

Background. In July, August, and September 2022, the

Massachusetts State police used a confidential informant (CI) to

conduct four controlled buys of fentanyl from the defendant. On

September 19, 2022, Massachusetts State trooper Williams Frais

applied for two search warrants: one for the defendant's home,

and one for a Toyota RAV4 that the State police saw the

defendant drive to and from the controlled buys. Frais

supported each search warrant application with his own

affidavit.

In the affidavits, Frais averred that the CI set up each

controlled buy by contacting a certain telephone number and, in

each instance, after the CI called that telephone number, the

defendant drove to the designated meeting place in the RAV4.1

Frais also noted that the defendant was not the account holder

for the telephone number Frais attributed to the defendant in

1 On two of those occasions, the State police surveilled the
defendant as he drove the RAV4 directly from his home to the
meeting with the CI, and as the defendant drove directly home
after the meeting. In the two other instances, the State police
saw the defendant drive to or from his home in the RAV4, but
were unable to surveil him on both legs of the trips.

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the affidavits; Frais opined that this was consistent with

narcotics distributors' attempts to conceal their identities.

Based on these applications, a District Court clerk-

magistrate issued the two search warrants on September 19, 2022,

and the State police executed them that day. The search

revealed suspected drugs -- notably, "a white powder substance"

-- as well as drug paraphernalia and packaging materials, and a

plastic bag containing $4,000 in cash. The State police also

found a cellular telephone in the RAV4, but it was assigned a

different number than the one listed in the affidavit. Frais

subsequently learned from the State trooper coordinating with

the CI that the CI was making controlled buys from two different

people -- the defendant and another person -- during the same

period, and the number Frais had included in the affidavit

corresponded to the other target, not the defendant. On the

date of the defendant's arraignment in September 2022, the

prosecutor informed defense counsel of this error. Later, State

Police trooper Matthew Morrisey prepared a supplemental police

report explaining the mistaken attribution of the other

suspect's telephone number to the defendant.

The prosecutor who presented the case to the grand jury

presented Frais's testimony and copies of the search warrant

returns. The prosecutor did not inform the grand jury about

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Frais's inaccurate recitation of the defendant's telephone

number in the search warrant affidavits, however. As we have

noted, the grand jury indicted the defendant on the offense

charged.

Discussion. 1. Conditional plea. Rule 12 (b) (6)

provides, in relevant part, that:

"[w]ith the written agreement of the prosecutor, the
defendant may tender a plea of guilty or an admission to
sufficient facts while reserving the right to appeal any
ruling or rulings that would, if reversed, render the
Commonwealth's case not viable on one or more charges. The
written agreement must specify the ruling or rulings that
may be appealed, and must state that reversal of the ruling
or rulings would render the Commonwealth's case not viable
on one or more specified charges."

The defendant's tender of plea in this case complied with most,

but not all provisions of this rule. Specifically, although the

plea agreement was written, it memorialized the terms of the

plea, and it specified the rulings the defendant intended to

appeal, it did not explicitly state that the rulings at issue

"would, if reversed, render the Commonwealth's case not viable"

on the indicted offense, nor did it state the lesser included

offense to which the defendant pleaded guilty. Rule 12 (b) (6).

The parties agree, however, that reversal of the motion to

dismiss would render the Commonwealth's case not viable.

Furthermore, it is apparent on the record that, at a minimum,

reversal of the order denying the defendant's motion to suppress

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the evidence found in his home would be fatal to a prosecution

for both the offense on which he was indicted, and the lesser

included offense to which he pleaded guilty. Where the

defendant's conditional plea therefore satisfied the substantive

requirements of the rule, we will not disturb it. See

Commonwealth v. Martell, 407 Mass. 288, 293 n.7 (1990)

(application of rules of criminal procedure should not "exalt

form over substance").

2. Motion to dismiss the indictment. a. Standard of

review. Generally, "the adequacy or competency of evidence

before a grand jury is not a matter for judicial inquiry."

Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 650 (2013), quoting

Commonwealth v. Mayfield, 398 Mass. 615, 619–620 (1986). Yet,

"we will consider whether the evidence before the grand jury was

sufficient to support a finding of probable cause[,] . . . and

whether the defendant has shown that the integrity of the grand

jury proceedings was impaired." Hunt, supra at 650-651, quoting

Mayfield, supra. Our review of a judge's denial of a

defendant's motion to dismiss on these grounds is de novo.2 See

Commonwealth v. Barlow-Tucker, 493 Mass. 197, 204 (2024).

2 For this reason, we need not and do not address the
defendant's argument that the motion judge's "finding" that the
cell phone was discovered in the defendant's home, rather than
in the RAV4, was clearly erroneous.

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b. Impairment of the grand jury. The defendant argues

that the indictment should be dismissed because the Commonwealth

failed to inform the grand jury about the error Frais made in

transcribing the defendant's telephone number in the

applications for the two search warrants in this case, as well

as in the supporting affidavits and the search warrants

themselves. We disagree.

"It is well settled that '[p]rosecutors are not required in

every instance to reveal all exculpatory evidence to a grand

jury.'" Commonwealth v. Reyes, 98 Mass. App. Ct. 797, 805

(2020), quoting Commonwealth v. Hernandez, 481 Mass. 189, 191,

cert. denied, 140 S. Ct. 168 (2019). Moreover, "the

presentation of false or misleading evidence only requires the

dismissal of an indictment where the evidence was presented with

the knowledge that it was false, with the express purpose of

obtaining an indictment, and 'probably influenced the grand

jury's determination to hand up an indictment.'" Reyes, supra,

quoting Commonwealth v. Fernandes, 483 Mass. 1, 8 (2019).

Even if we were to assume that the Commonwealth acted with

"reckless disregard of the truth" here by failing to inform the

grand jurors that the warrant and application materials3 included

3 Neither the warrant nor the application materials were
themselves presented to the grand jury.

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an incorrect telephone number, we are not persuaded that the

omission "probably influenced" the grand jury's decision to

indict. Mayfield, 398 Mass. at 621. The defendant's telephone

number was of no independent consequence in this case. Even if

the grand jury knew Frais had an unfounded suspicion that the

defendant was attempting to conceal his identity by using a cell

phone not registered to him, given the genesis of the error, the

effect of Frais's mistake on the grand jury's perception of his

truthfulness would likely have been negligible; at worst, the

grand jury might have concluded that Frais and the other trooper

had been careless about a collateral detail. Cf. Commonwealth

v. Hall, 485 Mass. 145, 157 (2020), quoting Commonwealth v.

Connor, 392 Mass. 838, 854 (1984) (prosecutor obligated to alert

grand jury to existence of evidence that "would greatly

undermine the credibility of an important witness").

Furthermore, the grand jurors were presented with the search

warrant return documenting the drugs, cash, and paraphernalia at

issue in the indictment, and we consider it unlikely that the

grand jury would have rejected this evidence based on Frais's

attribution of an incorrect telephone number to the defendant.

See Commonwealth v. Biasiucci, 60 Mass. App. Ct. 734, 738 (2004)

(decision to uphold indictment "can rest on the simple ground

that such exculpatory evidence as may be conceived to have

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existed was not weighty enough to constitute a substantial

challenge to the demonstration of probable cause, and, if laid

before the grand jury, would almost certainly have left

unaltered the disposition to indict"). Therefore, given the

totality of the evidence presented to the grand jury, the

defendant has failed to meet the "heavy burden" of showing

impairment of the grand jury proceeding. Reyes, 98 Mass. App.

Ct. at 805, quoting Commonwealth v. LaVelle, 414 Mass. 146, 150

(1993).

c. Scope of the appeal. The defendant's briefing also

includes challenges both to the adequacy of the evidence

presented to the grand jury, and to the propriety of the

prosecutor's answers to certain questions asked by the grand

jurors, as bases for dismissing the indictment. Because neither

of these issues was raised in the motion to dismiss the

indictment, however, the defendant's conditional plea did not

preserve his right to argue them on appeal. See rule 12 (b) (6)

(conditional plea reserves right to appeal only from rulings

specified in plea agreement). We thus do not address them

further.

3. Motion to suppress evidence. a. Franks hearing. A

Franks hearing allows a defendant "to challenge the truthfulness

of factual statements made in an affidavit supporting the

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warrant" against them. Commonwealth v. Dunn, 494 Mass. 42, 56

(2024), quoting Commonwealth v. Amral, 407 Mass. 511, 519

(1990). Entitlement to such a hearing turns on the defendant's

ability to make a "substantial preliminary showing." Dunn,

supra, quoting Commonwealth v. Long, 454 Mass. 542, 552 (2009),

S.C., 476 Mass. 526 (2017). Specifically, the defendant must

demonstrate that (1) in the affidavit supporting the search

warrant, the "affiant either included a false statement or

omitted material 'knowingly and intentionally, or with reckless

disregard for the truth,'" Dunn, supra, quoting Commonwealth v.

Andre, 484 Mass. 403, 407-408 (2020); and (2) "the false

statement was necessary for the probable cause determination."

Dunn, supra. See Franks, 438 U.S. at 155-156.

As the troopers explained in the supplemental police

reports here, before Frais prepared his affidavits, he obtained

what he mistakenly believed was the defendant's telephone number

from the State trooper who was managing the CI. This belief was

misplaced because the trooper, who was using the same CI to

investigate another suspected drug dealer, obtained telephone

numbers from the CI for both the defendant and the other

suspect, and the trooper "mixed the two numbers up" while

communicating the defendant's telephone number to Frais.

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In this circumstance, Frais's use of the incorrect

telephone number in the affidavit may have reflected negligence,

but not an intentional misstatement or a "reckless disregard for

the truth." Dunn, 494 Mass. at 56, quoting Andre, 484 Mass. at

407-408. Indeed, so far as the record reflects, Frais believed

that he was using the correct number provided by the CI. See

Commonwealth v. Filippidakis, 29 Mass. App. Ct. 679, 687 n.6

(1991) (standard for Franks hearing not met where "there is no

material basis for impugning the good faith of the affiant").

Additionally, even if we were to conclude that the

defendant showed that Frais acted recklessly with respect to the

confusion about the defendant's telephone number, the defendant

failed to establish that probable cause for the trafficking

offense turned on that mistake. As discussed infra, there was

ample probable cause to search the defendant's home and the RAV4

without the erroneous statement. We therefore discern no abuse

of discretion or other error in the judge's determination that

the defendant was not entitled to an evidentiary hearing to

pursue those challenges. See Franks, 438 U.S. at 155-156; Dunn,

494 Mass. at 56.

b. Merits. Finally, we are not persuaded that the judge

erred in denying the defendant's motion to suppress the evidence

seized by the State police because (1) the affidavits supporting

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the search warrants failed to satisfy the "veracity" prong of

the Aguilar-Spinelli test as to the CI on whom the State police

relied, see Aguilar v. Texas, 378 U.S. 108, 114-115 (1964);

Spinelli v. United States, 393 U.S. 410, 415-416 (1969); (2) the

affidavits failed to establish an adequate nexus between the

defendant's drug distribution and his home; or (3) the

affidavits failed to establish a timely nexus between the

defendant's drug distribution and the RAV4.

The affidavits supporting the search warrants describe the

CI's participation in four controlled buys. According to the

affiant (Frais), in each instance, the CI called the defendant

to arrange a purchase of fentanyl. Before the CI left to meet

the defendant, the State police searched the CI to confirm that

the CI had neither drugs nor money other than that provided by

the State police for the purpose of the controlled buy. The

State police then kept the CI under surveillance as the CI

traveled to the designated meeting place and bought fentanyl

from the defendant; after the purchase, the State police

followed the CI back to an agreed meeting place where the CI

gave them the fentanyl. This account of the CI's participation

in a series of controlled buys of fentanyl was adequate to

establish the CI's veracity under the relevant test. See

Commonwealth v. Villella, 39 Mass. App. Ct. 426, 427-428 (1995).

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Additionally, where Frais averred that the State police

watched the defendant leave his home and drive directly to and

from two of the controlled buys, and saw him going either to or

from his home for the other two controlled buys, the affidavits

established the required nexus between the defendant's home and

his drug distribution. See Commonwealth v. Young, 77 Mass. App.

Ct. 381, 386-387 (2010); Commonwealth v. DiStefano, 22 Mass.

App. Ct. 535, 540-541 (1986). See also Commonwealth v. Hayes,

102 Mass. App. Ct. 455, 462 (2023) (search warrant affidavit

"need not show that evidence more likely than not will be found;

it must provide merely that quantum of evidence from which the

magistrate can conclude, applying common experience and

reasonable inferences, that items relevant to apprehension or

conviction are reasonably likely to be found at the location"

[quotations and citation omitted]). Likewise, where the

affidavits described both the defendant's ongoing participation

in drug sales to the CI over a period of three months, and the

defendant's consistent use of the RAV4 when conducting the drug

sales, they established the necessary nexus between the RAV4 and

the drugs. See Commonwealth v. Defrancesco, 99 Mass. App. Ct.

208, 212-213 (2021). The four-day delay between the last

controlled buy and the execution of the search warrant for that

vehicle also did not render the information in the affidavit

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stale. See Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 511

(2019) (information in affidavit "timely" for purposes of

ongoing criminal enterprise where it permitted reasonable person

to believe evidence of crime would be present when warrant was

obtained and executed). There was therefore no error in the

judge's denial of the defendant's motion to suppress the

evidence the State police obtained using the search warrants.

Order denying motion to
dismiss indictment, and
order denying motion to
suppress evidence,
affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.4),

Clerk

Entered: May 2, 2025.

4 The panelists are listed in order of seniority.

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