Commonwealth v. Kevin Smyth.

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

22-P-761

COMMONWEALTH

vs.

KEVIN SMYTH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this interlocutory appeal1 from an order allowing the

defendant's motion to suppress,2 the Commonwealth argues that the

judge erred in concluding that the affidavit supporting the

application for a warrant did not establish probable cause to

search the defendant's home for evidence connected to the

distribution of marijuana. Because we agree with the judge that

1 A single justice of the Supreme Judicial Court allowed the
Commonwealth's application, pursuant to Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017), for leave to pursue an
interlocutory appeal in the Appeals Court.

2 The defendant moved to suppress items obtained from a search of
his residence pursuant to a warrant, which included twenty-three
pounds of a "green vegetable matter," forty pounds of various
products containing tetrahydrocannabinol (THC) (including edible
marijuana), financial documents, $2,000 in cash, a letter of
standing from the Bank of Newport, and a black Apple iPhone.
the affidavit did not adequately establish probable cause, we

affirm.

Under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, a search warrant may issue only on a showing of probable

cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007).

In evaluating whether a warrant application establishes probable

cause, our inquiry "always begins and ends with the 'four

corners of the affidavit.'" Commonwealth v. O'Day, 440 Mass.

296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App.

Ct. 426, 428 (1995). "To establish probable cause to search,

the facts contained in an affidavit, and reasonable inferences

that may be drawn from them, must be sufficient for the

magistrate to conclude 'that the items sought are related to the

criminal activity under investigation, and that they reasonably

may be expected to be located in the place to be searched at the

time the search warrant issues.'" Commonwealth v. Walker, 438

Mass. 246, 249 (2002), quoting Commonwealth v. Donahue, 430

Mass. 710, 712 (2000). Probable cause does not require

definitive proof of criminal activity. Instead, "[t]he basic

question for the magistrate, when evaluating an affidavit

supporting an application for the issuance of a search warrant,

is whether there is a substantial basis on which to conclude

that the articles or activity described are probably present or

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occurring at the place to be searched." Commonwealth v. Spano,

414 Mass. 178, 184 (1993). "Probable cause to search a

particular location for contraband requires a timely, as well as

a substantial, nexus to the illegal activity." Commonwealth v.

Pina, 453 Mass. 438, 442 (2009).

A central component of the affidavit at issue in this case

was information provided by a confidential informant (CI).

"Under the Aguilar-Spinelli standard, if an affidavit is based

on information from an unknown informant, the magistrate must

'be informed of (1) some of the underlying circumstances from

which the informant concluded that the contraband was where he

claimed it was (the basis of knowledge test), and (2) some of

the underlying circumstances from which the affiant concluded

that the informant was "credible" or his information "reliable"

(the veracity test).'" Commonwealth v. Upton, 394 Mass. 363,

374-375 (1985), quoting Aguilar v. Texas, 378 U.S. 108, 114

(1964). "In general, the basis of knowledge prong is satisfied

where the information provided springs from an informant's

firsthand observations or knowledge." Commonwealth v. Arias,

481 Mass. 604, 618 (2019). "[I]n the absence of a statement

detailing the manner in which the information was gathered, it

is especially important that the tip describe the accused's

criminal activity in sufficient detail that the magistrate may

know that he is relying on something more substantial than a

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casual rumor circulating in the underworld or an accusation

based merely on an individual's general reputation."

Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting

Spinelli v. United States, 393 U.S. 410, 416 (1969). "If the

informant's tip does not satisfy each aspect of the Aguilar

test, other allegations in the affidavit that corroborate the

information could support a finding of probable cause." Upton,

supra at 375, citing Spinelli, supra at 415. "[E]ach element of

the test must be separately considered and satisfied or

supplemented in some way." Upton, supra at 376.

With these general principles in mind, we turn to the

contents of the affidavit at issue in this case. On February

22, 2021, a detective from Newport, Rhode Island (detective)

contacted a Massachusetts State Police trooper (trooper) with

information the detective had received from the CI, whose

identity was known to the detective, about an individual

distributing marijuana in and around Fall River. According to

the CI, "Kevin Smyth of 44 Russell Street sold marijuana by the

pound and stored it inside his residence for distribution.

Recently, [the CI] had observed Kevin in possession of seventeen

pounds (17 lbs.) of marijuana and several firearms and believed

he was storing those items in his house." On a previous

occasion, the CI had provided information to the detective that

led to the seizure of an illegally possessed firearm.

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Upon receiving this information from the detective, the

trooper located the defendant's driver's license record, which

indicated that he lived at 44 Russell Street, a two-family

residence. The trooper's further investigation showed that the

defendant did not have a criminal record, and that there were no

records of previous police interactions with him. The defendant

did not have an active license to carry or conceal a firearm.

Nor did he have a license to grow marijuana in Massachusetts.

The trooper also discovered that the defendant owned both units

of 44 Russell Street, which he had purchased in 2018.

Investigators subsequently executed a "trash pull" at the

defendant's residence on February 26, 2021. There were two bins

outside of 44 Russell Street: one for trash and one for

recycling. Four bags filled with rubbish were pulled from the

trash bin. Inspection of the contents revealed three clear,

plastic, heat-sealed bags, cut open and empty. "Each bag had a

strong odor of unburnt marijuana," a scent the trooper

recognized from his training, knowledge, and experience. The

trooper recognized these bags as a common form of packaging

marijuana in pounds, and opined that three pounds of marijuana

is not consistent with personal use. In addition to the plastic

bags, investigators found a letter of standing addressed to the

defendant; the letter and the plastic bags were seized as

evidence.

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A few days later, on March 1, 2021, troopers surveilled 44

Russell Street for one-half hour and saw the defendant call a

dog into the left side of the house. Fifteen minutes later, the

defendant was seen leaving the house with a small child and a

car seat in hand. Based on this information, the trooper

applied for and was granted a warrant to search the left side

unit of 44 Russell Street for evidence of unlawful marijuana

distribution.3

The Commonwealth argues that the affidavit satisfied both

prongs of Aguilar-Spinelli. We disagree. Specifically, the

affidavit did not sufficiently establish the basis for the CI's

belief that marijuana was stored in the defendant's home.

Although the CI stated that the CI saw the defendant with

seventeen pounds of marijuana and several firearms, the CI did

not say that the CI saw them in the defendant's home. Instead,

the affidavit merely stated that the CI "believed" that the

marijuana was stored in the defendant's home. See Pina, 453

Mass. at 441, quoting O'Day, 440 Mass. at 304 ("there must be

specific information in the affidavit . . . to provide 'a

sufficient nexus between the defendant's drug-selling activity

3 Sought evidence included marijuana; books, records, and cell
phones containing evidence of past and future drug transactions;
and money used or intended for use in the distribution of
marijuana, including any money believed to be the proceeds of
the unlawful sale or distribution of marijuana.

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and his residence to establish probable cause to search the

residence'").4

The Commonwealth acknowledges, appropriately, that the CI's

"belief" without an identified basis of knowledge, standing

alone, was insufficient to establish probable cause that drugs

were to be located in the defendant's residence. Nevertheless,

the Commonwealth argues that the subsequent police investigation

supplied sufficient corroboration to overcome the missing basis

of knowledge for the CI's belief. We are not persuaded. To

begin, almost all the information gathered during the

investigation merely corroborated innocent details such as the

defendant's name and residence, which were matters of public

record. "Corroboration of innocent details is normally less

significant in establishing probable cause than corroboration of

facts suggestive of criminal conduct." Commonwealth v. Bottari,

395 Mass. 777, 784 (1985). Moreover, although the empty heat-

sealed bags smelling of unburnt marijuana located in the trash

bin were corroborative to a degree, without more, they were not

enough to elevate the CI's unsubstantiated belief to something

4 Deciding as we do, we need not, and do not, consider whether
the CI's reliability was sufficiently established by having
previously provided information leading to the seizure of an
illegal firearm together with the fact that the CI's identity
was known to the detective. But even assuming that the CI's
information was reliable, it was nonetheless insufficient to
establish probable cause.

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akin to knowledge with an identified basis. See Arias, 481

Mass. at 618 (CI's information must be based on firsthand

observations or knowledge). This case is weaker than

Commonwealth v. Matias, 440 Mass. 787 (2004), where the CI had a

firsthand basis of knowledge from his history of purchasing

pounds of marijuana from the defendant. Furthermore, the CI's

information was tied to the defendant's residence by the

discovery of a "large amount" of plastic wrap containing an

herbal substance believed to be marijuana, as well as many large

baggies containing an herbal substance that tested as marijuana,

in the trash outside the defendant's residence, together with

paperwork bearing the defendant's name and address. Matias,

supra at 789-790. Here, as we have already said, the affidavit

contained no stated basis for the CI's belief that drugs were

stored at the defendant's residence, and the three ripped

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plastic bags in the trash were materially less corroborative

than the evidence delineated in Matias.

Order allowing motion to
suppress affirmed.

By the Court (Wolohojian,
Neyman & Smyth, JJ.5),

Clerk

Entered: March 16, 2023.

5 The panelists are listed in order of seniority.

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