Commonwealth v. Denny German.

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

23-P-288

COMMONWEALTH

vs.

DENNY GERMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with possession with intent to

distribute a class B substance, cocaine, in violation of G. L.

c. 94C, § 32A (a). He filed a motion to suppress evidence

seized pursuant to two search warrants that were executed in

this case, one for his residence and one for a motor vehicle,

and for a Franks hearing, see Franks v. Delaware, 438 U.S. 154,

155-156, (1978). The judge allowed the motion to suppress with

respect to the evidence seized during the search of the vehicle,

but denied it with respect to the search of the residence. The

judge also denied the defendant's request for a Franks hearing,

finding an insufficient basis to require one. The defendant

filed a motion to reconsider, which was denied.
Subsequently, the defendant pleaded guilty to the charge

against him, and received a suspended sentence, while reserving

his appellate rights with regard to the judge's decisions on the

motion to suppress the evidence seized from the residence, and

the request for a Franks hearing. See Commonwealth v. Gomez,

480 Mass. 240, 252 (2018) (permitting conditional guilty plea

with consent of Commonwealth and court).

The affidavits in support of each of the two warrants were

written by the same affiant, Detective Stephen Emery of the Lynn

police department. Each was based entirely on information from

confidential sources, and each referred to two controlled buys

that occurred on undisclosed dates and times in the month of

October 2020. The affidavit in support of the warrant for the

residence was prepared on October 19, 2020, while the affidavit

in support of the warrant for the vehicle was prepared on

October 21, 2020.

1. Motion to suppress. We turn first to the motion to

suppress the evidence seized from the residence at 1 Chase

Street, Apartment 1R, Lynn. In determining whether the motion

to suppress was properly denied, we are limited in examining the

four corners of the search warrant affidavit. See Commonwealth

v. Canning, 471 Mass. 341, 348 (2015).

2
For a warrant to issue, the affidavit must demonstrate

probable cause that items related to the criminal activity under

investigation will be found in the place to be searched at the

time the search warrant issues. See Commonwealth v. Donahue,

430 Mass. 710, 711-712 (2000). Because of the heightened

constitutional protection provided to residences, when

establishing a nexus between a suspected drug dealer and his

residence, "police must provide 'particularized information

based on police surveillance or otherwise, that would permit a

reasonable inference that the defendant likely kept a supply of

drugs' in the home." Commonwealth v. Escalera, 462 Mass. 636,

643 (2012), quoting Commonwealth v. Pina, 453 Mass. 438, 442

(2009). "[T]here must be specific information in the affidavit

. . . to provide 'a sufficient nexus between the defendant's

drug-selling activity and his residence to establish probable

cause to search the residence.'" Pina, supra at 440-441,

quoting Commonwealth v. O'Day, 440 Mass. 296, 304 (2003). A

single trip by a defendant directly from his residence to the

location where he sold drugs to an informant is insufficient to

provide an adequate nexus between a defendant's criminal

activity and his residence. Pina, supra at 441, 442.

In his affidavit, the affiant states that "[d]uring the

month of October 2020," the affiant "spoke with a confidential

3
source of information," abbreviated in the affidavit as CS,

which abbreviation we will use as well. The affiant states that

he knows "this person's name, date of birth, address and cell

phone number. This person has provided information directly to

this Officer as well as other Officers, and State Troopers."

The affidavit goes on to say,

"During this initial conversation, the CS stated that the
CS knew of an unidentified male only known as 'Mike'
offering cocaine for sale in and around Lynn. CS provided
the following phone number for Mike: [phone number]. CS
described Mike a [sic] Hispanic male, approximately 5'9["],
medium build, cornrows down to his neck, light-medium
skinned. CS also provided intelligence that Mike is
dealing out of 1 Chase St, Lynn, MA."

The affidavit then says that "[d]uring the month of October

2020," a controlled buy of cocaine by the CS was undertaken.

The CS made contact with Mike via the phone number given by the

CS, made arrangements to purchase an undisclosed amount of

cocaine from Mike, and was directed to a location where other

officers were able to set up surveillance. Surveillance was

also set up on 1 Chase Street. Sergeant Avery observed a

Hispanic man matching the description of Mike exit the rear door

of Apartment 1R of 1 Chase Street and exit the rear of the

building. The affidavit says that a surveilling officer was

able to keep sight of Mike as he went from 1 Chase Street

directly to the CS's location, making no stops or meeting

anybody else along the way. The CS met with Mike and handed him

4
money given to him by the police, and in return received "the

cocaine." "Surveillance was kept on Mike as he made his way

directly back to 1 Chase St[.] where he was observed to go back

inside by Sgt[.] Avery and Trooper Soldani."

The affidavit also recounts a second controlled buy

"[d]uring the month of October 2020." This time, however,

"Sgt[.] Clemens of [Massachusetts State police] observed a

Hispanic male matching the description for Mike exit the rear

door of apartment 1R of 1 Chase St[.] and exit the rear of the

building." Again, a surveilling officer was able to keep sight

of Mike as he made his way from 1 Chase Street "directly to the

CS's location while making no stops or meeting with anybody else

along the way." Again, the CS met with Mike, handed him money

provided by the police, and in return received cocaine. The CS

and Mike then went their separate ways. Surveillance was kept

on Mike as he made his way directly back to 1 Chase Street,

where he was observed going back inside by Detective Peter

Panacopoulos.

As described above, a single trip directly from one's

residence to a place where one sells drugs has been held

insufficient to support a conclusion that drugs will be found in

the house. Pina, 453 Mass. at 441, 442. In this case, however,

the affidavit describes two such controlled buys in which the

5
defendant traveled directly from the house to the location of

the sale. We will assume, without deciding, that if the

magistrate credited the affidavit, this provided probable cause

to search the defendant's residence.

There is, however, a staleness problem with the information

in the affidavit. This warrant was sought on October 19. The

affiant does not say on what day these controlled buys took

place. Rather, the affiant asserts only that these buys took

place "during the month of October 2020." There is, therefore,

ambiguity about the dates of the buys. "The ambiguity . . .

makes it proper to assume that the buy occurred on the most

remote date described by that language." Commonwealth v. Rice,

47 Mass. App. Ct. 586, 590 (1999). We must therefore assume

that the first controlled buy took place on October 1, and,

although the second buy could have taken place the same day, we

will assume it did not -- although nothing in the affidavit

actually requires this -- and therefore, that it took place, at

the earliest, on October 2. This means that we must treat the

controlled buys as having taken place on two consecutive days,

and the affidavit application as having been sought seventeen

days after the second controlled buy.

"Probable cause to search a particular location for

contraband requires a timely, as well as a substantial, nexus to

6
the illegal activity." Pina, 453 Mass. at 442. In Pina,

although the court did not rest on this alone, the court said,

"The lapse of time between th[e] observation and the application

for the search warrant (three days) raises further concerns."

Id.

There is no bright line for when information like this

about a residence becomes stale. It depends on the

circumstances of each case. See Commonwealth v. Atchue, 393

Mass. 343, 349 (1984). We find some guidance, however, in

Commonwealth v. Malone, 24 Mass. App. Ct. 70 (1987). In that

case, a search warrant was sought on April 19, 1985, for an

apartment of the defendant from which she had been arrested

selling drugs over a year before. Id. at 71. According to the

affidavit, "'On or about the 25th to the 29th of March 1985,' an

informant attempted to buy cocaine at the defendant's

apartment." Id. The informant was allowed in by a woman who

said she was the defendant's sister. Id. The informant asked

about buying cocaine and was told it would be there in a while,

and while in the apartment, the informant observed a white

powder, which the woman described as only a cutting agent. Id.

The court concluded that it was a reasonable inference from the

sister's statement that drugs would be found in the apartment

within a short time after the informant's visit. Malone, 24

7
Mass. App. Ct. at 73. However, the lapse of at least twenty-one

days between that observation and the date on which the warrant

was sought meant the affidavit was insufficient to support a

finding of probable cause on the date the affidavit was

submitted. Id. at 73-74. We think that the two and one-half

weeks that passed between the controlled buy and the application

for the warrant in this case is not meaningfully distinguishable

from the three weeks at issue in Malone. Consequently, we think

the information in the affidavit was stale when it was

submitted, and therefore not sufficient to support the issuance

of the warrant.

The Commonwealth points out that "[i]f an affidavit recites

activity indicating protracted or continuous conduct, time is of

less significance" (citation omitted). Commonwealth v.

Vynorius, 369 Mass. 17, 25 (1975). There is at least one case

in which a passage of two weeks was not sufficient to render the

evidence stale because of continuous conduct. See Commonwealth

v. Cruz, 430 Mass. 838, 843 (2000). But in that case, "the

affidavit described six controlled purchases of increasing

amounts of cocaine over a period of four weeks, and also

asserted that plans were being made to buy more cocaine from the

defendants in the future." Id. Given that, "[t]he magistrate

reasonably could have inferred that the defendants were engaged

8
in ongoing, criminal activity to distribute cocaine." Id. In

those circumstances, the court said that the affiant's

information did not "grow stale" in the two weeks since the

affidavit. Id.

Here, we do not have similar evidence of continuing

activity. To be sure, according to the affidavit, two

controlled buys took place from the defendant within the first

two days of October 2020. But that is all the information we

have. The affiant had never been inside the apartment, did not

therefore describe anything about it or the presence of drugs

within it, nor is there any other evidence from outside of these

two days of an ongoing drug sale operation.

Consequently, because the nexus to the defendant's

residence was not timely, we conclude that the search warrant

should not have issued, and the motion to suppress should have

been allowed.

2. Motion for a Franks hearing. For the sake of

completeness, we address the defendant's second argument, that a

Franks hearing should have been held. If we are incorrect about

the motion to suppress, we conclude that the defendant was

nonetheless entitled to a Franks hearing.

Under Franks v. Delaware, 438 U.S. 154, 155-156, (1978),

"where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally,

9
or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable
cause, the Fourth Amendment [to the United States
Constitution] requires that a hearing be held at the
defendant's request."

"Intentionally or recklessly omitted material may also form the

basis for mounting [such] a challenge." Commonwealth v. Long,

454 Mass. 542, 552 (2009). To invoke Franks, the defendant must

show that the false statement was necessary to the finding of

probable cause, or that omission negated a finding of probable

cause.

The defendant's primary argument is based on alleged

inconsistencies between the search warrant affidavit supplied in

obtaining the search warrant for the residence, and the

affidavit submitted two days later in support of the search

warrant for the vehicle.

The affidavit for the vehicle warrant is virtually

identical, in its initial portions, to the affidavit in the

residence case. It states, "During the month of October 2020,

this Officer spoke with" a confidential source, this time

referred to as a "confidential reliable source," for which it

uses the initials "CRS," as we will, but says nothing about

reliability, instead averring that "reliability can be furnished

upon request." Identically to the residence affidavit, it then

reads, "I know this person's name, date of birth, address and

10
cell phone number. This person has provided information

directly to this Officer as well as other Officers, and State

Troopers." It then says,

"During this initial conversation, the CRS stated that the
CRS knew of an unidentified male only known as 'Mike'
offering cocaine for sale in and around Lynn. CRS provided
the following phone number for Mike: [same phone number as
that in the residence affidavit]. CRS described Mike a
[sic] Hispanic male, approximately 5'9["], light-medium
skinned. CRS also provided intelligence that Mike is
dealing out of 1 Chase St[.], Lynn, MA."

The only difference between this and the description of CS in

the residence affidavit is that CS was said to have included in

his description of "Mike" the additional information that he was

"medium build," with "cornrows down to his neck."

The vehicle affidavit describes the setup of a controlled

buy "[d]uring the month of October 2020" almost identically to

the way it was described in the residence affidavit, but states

that "[s]urveillance observed MA REG 2XKM81 being operated by a

single occupant who appeared to match the description of Mike.

The CRS went to the MV [motor vehicle], met with Mike, handed

him the money, and in return received the cocaine. The CRS and

Mike then went their separate ways."

The vehicle affidavit then introduces someone it implies to

be a second confidential source. It says,

"During the month of October 2020, this Officer spoke with
a confidential source of information who will be referred
to as CS. I know this person's name, date of birth,

11
address and cell phone number. This person has provided
information directly to this Officer as well as other
Officers, and State Troopers. During this initial
conversation, the CS stated that the CS knew of an
unidentified male only known as 'Mike' offering cocaine for
sale in and around Lynn. CS provided the following phone
number for Mike: [same phone number]. CS described Mike a
[sic] Hispanic male, approximately 5'9["], medium build,
cornrows down to his neck, light-medium skinned. CS also
provided intelligence that Mike is dealing out of 1 Chase
St[.], Lynn, MA."

This paragraph appears to be cut and pasted from the

residence affidavit. It even includes the same typographical

error. This supports an inference that this "CS" is the same CS

named in the residence affidavit.

The affidavits describe identically a controlled buy by CS,

the second one described in the residence affidavit. But the

vehicle affidavit has a different description than the residence

affidavit of what happened after it. The residence affidavit

says, "Surveillance was kept on Mike as he made his way directly

back to 1 Chase St[.] where he was observed to go back inside by

Det[.] Peter Panacopoulos." The vehicle affidavit, in contrast,

says,

"Surveillance was kept on Mike as he stopped at MA Reg
2XKM81 which was parked and unoccupied. Mike held
something out and pointed it at the MV as if it was being
unlocked. He then entered the passenger side of the MV and
sat down inside. He appeared to manipulate some things in
the front seat and then after approximately 1 minute he
exited the MV [and] made his way directly back to 1 Chase
St[.] where he was observed to go back inside by Det[.]
Peter Panacopoulos."

12
Given that the last clause is identical to what was included in

the residence affidavit, an inference is supported that this

controlled buy is the second controlled buy mentioned in the

residence affidavit.

The differences between these two affidavits raise a

serious concern. It may be that there were three confidential

sources and four controlled buys. And the identical passages

may reflect a desire to avoid details about the confidential

sources, not that the descriptions are of the same confidential

source. But it is reasonable to assume that an officer seeking

a warrant for a search of a residence or a vehicle would include

in his affidavit all controlled buys made from the suspect.

Certainly, in seeking a warrant for a residence, one would

expect all controlled buys in which the defendant went directly

from the residence to the drug deal to be included.

To begin with, then, the affidavits support an inference

that the second controlled buy mentioned in each affidavit is

the same one, and that the defendant did not proceed directly to

the residence after the drug deal but stopped instead at the

vehicle. If so, the description in the residence affidavit is

inaccurate. Further, the omission from the residence affidavit

of returning to the car, if it describes what actually happened,

and of the vehicle affidavit's description of the first

13
controlled buy, in which the defendant arrived and departed in

his vehicle, may paint a materially misleading picture of the

role of the residence in the defendant's drug-dealing activity,

indicating that, during the relevant time period, the defendant

may not have been selling drugs from his residence.

Indeed, it may be that the two affidavits describe the same

two controlled buys and that there was only a single

confidential source. If that were true, then the description of

the first controlled buy in each affidavit is utterly different

from the description in the other. The differences in the

affidavits certainly raise a sufficient issue to have required

an evidentiary hearing under Franks.

There is also additional evidence showing that a Franks

hearing was necessary. In an affidavit filed with the motion,

and again filed with the motion for reconsideration, counsel

asserted that he had visited and examined the premises at 1

Chase Street, Lynn, both interior and exterior, and had had the

opportunity to examine Apartment 1R, both interior and immediate

exterior. He asserted that it is physically impossible to see

through the rear door of 1 Chase Street into the interior of the

rear hallway to determine that someone has left Apartment 1R,

unless one has their face pressed up to the beveled glass.

There is a short distance between the door to Apartment 1R and

14
this back door with beveled glass, and he asserted that if one

had one's face pressed against the glass, anyone exiting

Apartment 1R would see them, and would get to the building's

rear door before the person looking in had any time to leave or

hide. This, too, raises a question worthy of an evidentiary

hearing under Franks.1

Because we think the failure to allow the motion for a

Franks hearing was in error, were we to conclude that the

evidence seized during the search of the residence need not be

suppressed, we would vacate the order denying the Franks

hearing, and remand for proceedings consistent with this

memorandum and order.

Conclusion. To the extent that the order on the

defendant's motion denied the motion to suppress evidence seized

from the residence, it is reversed, and the case is remanded to

1 In support of the motion for reconsideration, the
defendant submitted photographs of the rear of the building that
appear to show the impossibility of seeing the exit of Apartment
1R from outside the rear of the building, except by being
immediately close to that rear door. He includes those
photographs in his appendix, but, because the judge was not
obligated to consider that new evidence on a motion for
reconsideration, they play no role in our assessment.

15
the Superior Court for further proceedings not inconsistent with

this memorandum and order. The remainder of the order is

affirmed.

So ordered.

By the Court (Rubin, Blake &
Shin, JJ.2),

Clerk

Entered: October 4, 2024.

2 The panelists are listed in order of seniority.

16