Commonwealth v. Sterling Melo.

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-633

COMMONWEALTH

vs.

STERLING MELO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted by a jury of two offenses

involving the distribution of fentanyl, stemming from a series

of controlled purchases between the defendant and an undercover

officer. On appeal the defendant argues that a judge erred in

denying his motion for disclosure of the identity and background

of a confidential informant, where the confidential informant

participated (with the undercover officer) in prior controlled

purchases that did not result in criminal charges. The

defendant also argues that evidence obtained from a pole camera

surveilling his residence should have been suppressed, alleging

a lack of the requisite probable cause for such surveillance.

We affirm.
Background. There are two motions at issue in this appeal.

In July of 2020, the defendant moved for disclosure regarding

the confidential informant involved in the investigation of his

case, arguing that the Commonwealth could not assert the

informant privilege under the circumstances. In December of

2021, the defendant moved to suppress evidence obtained by pole

camera surveillance, arguing that the Supreme Judicial Court's

then-recent decision in Commonwealth v. Mora, 485 Mass. 360

(2020), required suppression. The following facts are drawn

from the documentary evidence before both motion judges.1

In November of 2018, a confidential informant (CI)

described as a "Lynn Police Drug Task Force informant" reported

that the defendant was supplying heroin and fentanyl to

customers in the Lynn area. The CI stated that it had purchased

drugs from the defendant previously, and named the defendant's

street of residence. Officers conducted a registry of motor

vehicles (RMV) search that revealed a Lynn address for the

defendant, on the street that the CI had named; officers also

searched a law enforcement research database and found that the

1 The two motions were argued separately, and the evidence
before each motion judge differed slightly. In evaluating the
orders denying the motions, we considered in each instance only
the record before each judge. See Commonwealth v. Johnson, 481
Mass. 710, 726 n.14 (2019).

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defendant was registered to vote at that same address, and had

utilities and phone numbers listed at that address.

That same month, the CI arranged a controlled purchase of

narcotics from the defendant, which occurred at the defendant's

residence. A law enforcement surveillance team followed the CI

to the defendant's residence, but lost sight of the CI before

the CI entered the building. The CI later reported that the

transaction began inside the defendant's apartment building,

continued in the defendant's car, and concluded outside the

apartment building. Within the same week, the CI made a second

controlled purchase of narcotics, accompanied by an undercover

officer with the State Police who drove the CI to the

defendant's residence. The undercover officer watched as the

defendant opened a side door, after which the defendant and the

CI entered the building. The CI then purchased narcotics inside

the building.

On November 30, 2018, investigators installed a pole camera

in the area of the defendant's residence, to surveil the

defendant. The police did not seek a warrant before installing

the camera; the installation occurred prior to the decision in

Mora, which established that such surveillance constituted a

search under art. 14 of the Massachusetts Declaration of Rights.

See Mora, 485 Mass. at 376. In response to the defendant's

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post-Mora motion to suppress, the Commonwealth submitted an

affidavit from State Trooper Carly Rose, who was involved with

the investigation of the defendant (but was not the undercover

officer). Trooper Rose attested that based on the CI's

information, the confirmation of the defendant's address through

the RMV and law enforcement database searches, and the two

controlled purchases, she "believed that [the defendant] resided

at [the residence] and was also using that location to store

narcotics and the illicit proceeds of his narcotics operation."2

In December of 2018,3 the CI arranged a third controlled

buy, and the undercover officer drove the CI to the defendant's

residence. Once again, the transaction between the CI and the

defendant occurred inside the defendant's apartment building.

On this occasion when the CI and the defendant left the

building, the defendant saw the undercover officer in the car,

and the two of them acknowledged each other. RA 124.

Thereafter, in December of 2018 and January of 2019, the

undercover officer conducted three additional controlled

transactions directly with the defendant, without the CI. These

2 Trooper Rose made this attestation by affidavit in
September of 2021, for the purpose of justifying the pole camera
installation.

3 At trial, the undercover officer testified that this third
controlled buy occurred in November of 2018. This discrepancy
has no effect on our analysis below.

4
controlled buys all occurred outside, but in the vicinity of,

the defendant's residence. In January of 2019 the defendant

began to show suspicion of the undercover officer, and the

police halted the controlled buys.

In June of 2019, the defendant reinitiated contact with the

undercover officer. The defendant told the undercover officer

that he had "some good stuff" and offered a sample. In July and

August of 2019, the undercover officer and the defendant engaged

in three further controlled purchases. These purchases also

took place in the vicinity of the defendant's residence.

On August 14, 2019, Trooper Rose submitted an affidavit

seeking a warrant to search the defendant's residence, person,

and phone. In that affidavit, Trooper Rose indicated that she

had spoken with the CI two days prior, and that the CI

identified the defendant's apartment; the CI stated that it had

been to the defendant's apartment "on many occasions when

transactions occurred." The CI also stated that the defendant

often hid narcotics in the curtains and curtain rods of his

apartment. Trooper Rose stated in her affidavit that "CI's true

identity will be kept confidential to ensure the safety of CI

and CI's family."

On August 15, 2019, officers took the defendant into

custody and searched his residence. The police did not find any

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narcotics, but found cell phones, money, and a "finger" press

used for pressing narcotics. The defendant was indicted on

three counts of possession of fentanyl with intent to

distribute, G. L. c. 94C, § 32 (a), and three counts of

trafficking in ten grams or more of fentanyl, G. L. c. 94C,

§ 32E (c 1/2). Relevant here, the indictments were based only

on the controlled buys conducted by the undercover officer when

the CI was not present.

The defendant filed a motion for disclosure of information

regarding the CI, including the CI's identity, address, and

history with the police.4 The defendant argued that the CI's

credibility was an issue at trial, because the identification of

the defendant by name resulted from the CI's report and

subsequent database searches based on that report; the theory of

the defense was misidentification. The defendant's motion was

denied after a nonevidentiary hearing. The defendant thereafter

moved separately to suppress all evidence collected from the

pole camera, arguing that there was no probable cause for the

surveillance as required by Mora, 485 Mass. at 376-377. After a

nonevidentiary hearing, the motion judge denied the motion to

suppress as to the pole camera evidence collected during the

4 The Commonwealth had previously moved for a protective
order.

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time periods when the controlled buys occurred -- from November

30, 2018 to January 9, 2019, and from July 25, 2019 to August

15, 2019.5

After a trial, a jury convicted the defendant on one of the

possession charges and one of the trafficking charges; this

appeal followed.

Discussion. 1. Disclosure of confidential informant. In

response to the defendant's motion for disclosure of the CI

information, the Commonwealth successfully invoked the

"informant privilege." When asserted properly, the informant

privilege excuses the Commonwealth from providing discovery

regarding a confidential informant's identity, including

"details that would in effect identify the informant."

Commonwealth v. Whitfield, 492 Mass. 61, 68 (2023), quoting

Commonwealth v. John, 36 Mass. App. Ct. 702, 707 (1994). See

Commonwealth v. Bonnett, 472 Mass. 827, 846 (2015), S.C., 482

Mass. 838 (2019). Here the Commonwealth argued that the

informant privilege should be applied to protect the safety of

the CI. " We review a decision on a motion for disclosure of

information subject to the Commonwealth's assertion of the

informant[] privilege for an abuse of discretion." Whitfield,

5 The judge who heard the motion to suppress was not the
judge who heard the motion for CI disclosure.

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supra at 67. "Where, as here, the motion judge conducted a

nonevidentiary hearing, and the record before the judge

consisted only of documentary evidence . . . we are in the same

position as the motion judge to assess the documentary evidence"

(quotations and citation omitted). Id.

Our case law sets out a two-stage analysis for evaluating

the government's assertion of the informant privilege. "The

first stage involves preliminary determinations as to

(a) whether the Commonwealth has properly asserted an informant

privilege, and (b) whether the defendant has adequately

challenged the assertion of the privilege as an impermissible

interference with his or her right to present a defense."

Bonnett, 472 Mass. at 846. The Commonwealth properly asserts

the privilege, and satisfies its first-stage burden, "where

disclosure would endanger the informant or otherwise impede law

enforcement efforts." Id. at 847. The defendant satisfies his

first stage burden by presenting "some offering so that the

trial judge may assess the materiality and relevancy of the

disclosure to the defense, if that relevancy is not apparent

from the nature of the case and the defense offered thereto."

Id., quoting Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013).

The defendant's burden at this first stage is "relatively

undemanding." Bonnett, supra. Only if the privilege has been

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asserted properly by the Commonwealth, and challenged adequately

by the defendant, do we move to the second stage, which involves

"a balancing test . . . in which the interest of the public in

protecting the anonymity of informants is weighed against the

defendant's right to defend himself." Id. at 846-847.

As to the Commonwealth's first-stage burden, the

Commonwealth argues that it put forth sufficient evidence, in

the form of Trooper Rose's affidavit, that disclosure of the

CI's identity would put the CI and the CI's family at risk. The

defendant argues that the Commonwealth failed to substantiate

the safety concerns underlying Trooper Rose's sworn statement.

However, the risk to the CI is apparent from the affidavit. The

CI was a customer of the defendant, and had been to the

defendant's apartment "on many occasions" to purchase drugs.

The CI informed the police of the defendant's drug sales, and

the CI made three controlled purchases from the defendant.

Furthermore, the CI had a track record as an informant to the

Lynn police; one could make the reasonable inference, as the

motion judge did in this case, that "the CI is from the Lynn

area and that Lynn police officers have worked with the CI in

the past." These facts established safety concerns sufficient

for the Commonwealth to invoke the informant privilege. See

Commonwealth v. Gandia, 492 Mass. 1004, 1004-1005, 1007 (2023)

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(rejecting defendant's argument that Commonwealth failed to show

"specific" and "tangible" risks to informant, where informant

had observed, but had not participated in, defendant's drug

transactions, and where informant had previously provided

multiple tips resulting in seizure of contraband, including

firearms).

Moving to the defendant's first-stage burden, the defendant

argues that disclosure of the CI's identity was material and

relevant to his defense, because it would have enabled him to

call the CI as a witness and challenge the CI's credibility.

The defendant emphasized to the motion judge and on appeal that

the CI provided the initial identification of the defendant in

November 2018, played an important role in the investigation by

arranging controlled purchases, and provided allegations of drug

possession in August 2019 that the police relied on in obtaining

a search warrant. The defendant has not shown, however, how

attacking the credibility of the CI would have been material to

his defense, where the CI was not a participant or even a

witness to any of the charged crimes. As noted above, the

charged offenses all arose out of buys by the undercover

officer, when the CI was not present. Because the undercover

officer observed the defendant firsthand, and participated in

the charged drug transactions with him, whereas the CI did not,

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the charges did not turn on the credibility of the informant who

initially led the officer to the defendant.6 See Commonwealth v.

Barry, 481 Mass. 388, 411 (2019) (defendant did not meet first-

stage burden where informant, who heard and reported rumor that

defendant was not culpable, was not percipient witness, but

reported "word on the street"). See also Commonwealth v.

Connolly, 454 Mass. 808, 827-828 (2009) (affirming nondisclosure

of informant where informant introduced undercover officer to

defendant, but informant was not percipient witness to charged

crimes); Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 511

(1998) (no prejudice to defendant from lack of disclosure where

defendant was not charged with only alleged crime in which

informant participated). As the defendant did not meet his

first-stage burden, there was no abuse of discretion in denying

his motion for disclosure of the confidential informant.7

6 The defendant emphasizes that the CI informed Trooper Rose
that the defendant "often will secrete narcotics in the curtains
and curtain rods of the residence," but that no such narcotics
were found. However, the defendant sought disclosure of the
CI's identity to call the CI as a witness at trial, not to
challenge the search warrant. As stated above, the CI was not a
witness to the crimes charged.

7 Even if we were to assume that the defendant satisfied his
first-stage burden, the defendant would not have prevailed at
the second stage, as he did not show that the informant's
identity was sufficiently "relevant and helpful" to his defense
to justify disclosure. See Bonnett, 472 Mass. at 847-848,
quoting Commonwealth v. Dias, 451 Mass. 463, 468 (2008).

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2. Motion to suppress. The defendant also argues that the

warrantless surveillance of his residence by pole camera was an

unconstitutional search, and that the evidence obtained

therefrom should have been suppressed. In Mora, 485 Mass. at

375-376, the Supreme Judicial Court held that "targeted, long-

duration pole camera surveillance of [defendants'] homes" was a

search under art. 14 of the Massachusetts Declaration of Rights,

and that a warrant was required for such surveillance. The

surveillance at issue occurred prior to the Mora decision,

however, and the Supreme Judicial Court has held that where such

pre-Mora pole camera evidence is at issue, the evidence should

not be suppressed as long as the Commonwealth can show that it

had probable cause that "a particular offense had been, was

being, or was about to be committed, and that the pole camera

surveillance undertaken would produce evidence of the offense or

that it would aid in the apprehension of the suspect."

Commonwealth v. Comenzo, 489 Mass. 155, 160 (2022). See Mora,

supra at 376-377.

In light of Mora, the parties agree that the pole camera

surveillance in this case constituted a search, and must be

justified by probable cause. The defendant contends that as of

November 30, 2018, the date that the pole camera was installed,

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probable cause was lacking; he argues in particular that the

information provided by the CI lacked indicia of reliability.8

We agree with the motion judge that the Commonwealth's

affidavits demonstrated probable cause to begin surveillance on

November 30, 2018, and again on July 25, 2019.9 The standard for

probable cause is less than a preponderance of the evidence; in

this context, it means a reasonable likelihood that a crime was

being committed at the defendant's residence, and that pole

camera surveillance would produce evidence of that crime. See

Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509 (2019). As

of November 30, 2018, the officers plainly had probable cause to

believe that narcotics were being illegally distributed at the

defendant's residence. By that date the defendant had twice

sold narcotics to the CI at his residence; during the first

controlled buy, the CI was under law enforcement surveillance

8 The defendant also argues that a showing of probable cause
as of November 30, 2018, did not justify surveillance for over
eight months thereafter. We need not reach this issue, however,
because much of the evidence from this time was suppressed; in
effect, we are reviewing two periods of surveillance, each
several weeks long, rather than a continuous eight-month period
of surveillance.

9 The Commonwealth submitted both the search warrant
affidavit and a supplemental affidavit prepared in response to
the motion to suppress, each authored by Trooper Rose. See
Mora, 485 Mass. at 377 (Commonwealth may submit warrant
affidavits, or other evidence including supplemental affidavits,
to establish probable cause).

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for part of the transaction, and during the second controlled

buy, a State trooper had witnessed material events immediately

outside the defendant's residence. At least the second

controlled purchase included the essential components for such a

purchase to establish the veracity of the CI, as set out in

Commonwealth v. Desper, 419 Mass. 163, 168 (1994). By July 25,

2019, the defendant had participated in four further controlled

purchases of narcotics, all at or around his residence, and for

three of which the undercover officer was the purchaser;

furthermore, the defendant had reinitiated contact with the

undercover officer only a month prior, seeking to sell more

narcotics.

Furthermore, the officers had probable cause that the pole

camera surveillance would produce evidence of illegal drug

distribution. The pole camera did not look inside the

defendant's residence, but it was directed at the defendant's

residence and the area outside the defendant's residence. Prior

to the installation of the pole camera, two controlled purchases

had occurred in and around the defendant's residence. The

officers had probable cause that pole camera surveillance would

lead to the observation of additional drug transactions (or

components thereof) occurring in the area around the apartment.

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Accordingly, the pole camera surveillance was permissible under

Mora.

Judgments affirmed.

By the Court (Massing,
Englander &
D'Angelo, JJ.10),

Clerk

Entered: July 17, 2025.

10 The panelists are listed in order of seniority.

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