Commonwealth v. Steven Rios.

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-390

COMMONWEALTH

vs.

STEVEN RIOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 24, 2020, officers of the Lawrence Police

Department responded to the defendant's report of a break-in and

theft at his home. Based on information they learned during

their investigation of the break-in, the police sought and

obtained a warrant to search the defendant's apartment for

marijuana and evidence of marijuana distribution. As a result

of the search conducted when the police executed the warrant,

the defendant was charged in the District Court with

distribution of marijuana and a series of offenses related to

the alleged mistreatment of dogs.
The defendant successfully moved to suppress the evidence

seized during the search and the Commonwealth appeals from the

judge's ruling. 1 We reverse.

Background. Our review is de novo, see Commonwealth v.

Long, 454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (2017), and

confined to "the four corners of the affidavit." Commonwealth

v. Henley, 488 Mass. 95, 114 (2021). In deciding whether "[t]he

facts contained in the affidavit, and the reasonable inferences

therefrom, . . . 'demonstrate probable cause to believe that

evidence of the crime will be found in the place to be

searched,'" Commonwealth v. Lowery, 487 Mass. 851, 856 (2021),

quoting Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), we

consider the search warrant affidavit "as a whole and in a

commonsense and realistic fashion." Commonwealth v. Snow, 486

Mass. 582, 586 (2021), quoting Commonwealth v. Dorelas, 473

Mass. 496, 501 (2016).

On November 3, 2020, a search warrant was issued for the

defendant's apartment based on the strength of an affidavit

signed by Detective Alexander Ovalles. We summarize the

affidavit here. Ovalles was a detective in the gang unit and

had training and experience in identifying and investigating

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
drug crimes. Shortly after midnight on October 24, 2020,

Ovalles and other Lawrence police officers responded to the

defendant's report of a break-in at his apartment. Beginning

that night and over the next several days, the police spoke with

the defendant and the defendant's girlfriend (who also lived in

the apartment) regarding the break-in. In addition, the police

obtained surveillance video recordings of the exterior of the

defendant's apartment from the defendant's landlord, who also

lived in the building. In the affidavit, Ovalles recounted the

girlfriend's statements to the police that were made during an

investigatory interview. Specifically, the girlfriend told

police that she and the defendant had an acquaintance who

frequently came to the apartment and smoked marijuana with them.

She stated that on October 23, 2020, the day of the break-in,

the defendant purchased "weed" from the acquaintance, 2 and that

shortly thereafter, the acquaintance and the defendant argued

about the defendant being "short on money they had agreed for

the . . . [drug] transactions." Later that day, the defendant

and his girlfriend left the apartment for a few hours. When

they returned, they found that the apartment had been

"ransacked[]."

2 As we discuss, infra, this statement by the girlfriend was
the result of an agreed-upon redaction. We consider the
affidavit as redacted.

3
The defendant reported the crime to the police shortly

after midnight on October 24, 2020; he gave the police

investigators access to his apartment when they arrived. The

defendant initially told the police the only things missing from

the apartment were two puppies 3; before the police left the

apartment, the defendant added that he was also missing $5,000

in cash that he had kept in a drawer in his bedroom.

Surveillance video of the apartment from October 24, 2020,

showed that the defendant was underreporting the theft -- the

video showed four men entering the defendant's apartment through

a window, then leaving minutes later wearing "full" backpacks

and carrying four boxes, a suitcase, and a "[ten]-gallon trash

container full of stolen materials." Additionally, the video

showed one of the intruders entering with a long object

concealed under a blanket and leaving with what appeared to be a

rifle in his hands. 4

The defendant's girlfriend watched the surveillance video

and identified one of the intruders as the acquaintance who had

argued with the defendant earlier that day. She also told the

3 As we note, infra, the defendant's girlfriend mentioned
only one stolen "dog"; the difference is not significant to our
analysis.

4 The police located a live round of rifle ammunition on top
of the defendant's couch. The defendant denied that the round
was his.

4
police the items stolen during the break-in included not only a

dog and the cash described by the defendant, but also "weed." 5

Four days after the break-in, the police returned to the

defendant's apartment. The defendant opened the door and, upon

seeing the police, immediately closed it again. Even with the

apartment door closed, the police smelled "an extremely strong

odor of unburnt marijuana" emanating from inside the apartment.

The defendant's resident landlord provided the surveillance

video described above. In addition, in his affidavit, Ovalles

documented the landlord's repeated calls to the Street Narcotics

Enforcement Unit and the Drug Hotline in the two weeks preceding

the break-in. The affidavit recounted "a substantial amount of

calls" in which the landlord had complained repeatedly to the

police about "heavy" foot traffic to and from the defendant's

apartment. The landlord reported that individuals would arrive

at the apartment and then leave "within minutes," sometimes

carrying bags they had not had when they arrived. The landlord

"indicated this [was] a nonstop issue at the household."

Ovalles averred that, based on his experience and training, a

drug dealer selling drugs from their home experiences

"significant . . . foot traffic" to and from the residence.

Ovalles averred that the day before he signed the affidavit in

5 And "clothing."

5
support of the search warrant, the landlord had contacted the

police "Drug Hotline . . . multiple times, again advising that

there were multiple vehicles parked outside his residence, [and

that the occupants of the vehicles] entered [the defendant's]

apartment and left within minutes." The landlord reported that

he was "certain [the defendant] [wa]s distributing marijuana on

a daily basis."

According to the affidavit, the defendant belonged to a

gang known to be involved in criminal activity, including

narcotics distribution. He also had a prior conviction for

possession with intent to distribute marijuana. 6

Discussion. 1. The affidavit's reliability. The

defendant's challenge to the reliability of information provided

by the defendant's girlfriend and the defendant's landlord is

not persuasive. "When hearsay is relied upon to supply probable

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

we employ the Aguilar-Spinelli standard to test its

reliability." Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 232

(2006), citing Spinelli v. United States, 393 U.S. 410, 415

(1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964). This

standard requires that an affidavit contain information about

the informant's (1) basis of knowledge, and (2) veracity or

6 The affidavit included a 2015 docket number associated
with that conviction, but no other details about the case.

6
reliability. See Zorn, supra. Here, the basis of knowledge

prong is satisfied for both the girlfriend and the landlord

because the statements included in the affidavit are based on

their own first-hand observations (or reasonable inferences

drawn from those observations). See id. at 233. The veracity

prong is also satisfied because both the girlfriend and the

landlord were known by name and address to the police. See

Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992), quoting

Commonwealth v. Atchue, 393 Mass. 343, 347 (1984) ("The

identification of [an] informant to the police strengthen[s] his

or her credibility and 'carrie[s] with it indicia of reliability

of the informant'").

The defendant's attempt to resurrect a Franks challenge,

see Franks v. Delaware, 438 U.S. 154, 171 (1978) (describing

procedure for challenging search warrant based on "deliberate

falsity or reckless disregard [for the truth]"), to Ovalles's

affidavit as part of this appeal is unavailing. The defendant

first raised the issue through a motion for a Franks hearing in

the trial court. At the preliminary hearing on the Franks

motion, the defendant argued that Ovalles's affidavit

misrepresented the police interview with the defendant's

girlfriend. The affidavit stated that she told police that the

defendant and the acquaintance had argued about buying "[two]

pounds of marijuana," but the defendant contended that a

7
recording of the interview established that the girlfriend told

the police that the defendant bought "weed" from the

acquaintance and made no reference to the quantity that the

defendant bought. However, the defendant withdrew the Franks

motion in open court on the preliminary hearing date in exchange

for the prosecutor's agreement to excise the words "[two] pounds

of marijuana" from Ovalles's affidavit and to replace them with

the word "weed." 7 The preliminary hearing did not go forward;

consequently, counter to the representations in the defendant's

brief, there was no determination that Ovalles "lied in his

search warrant." 8 We do not consider the argument further. Cf.

Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).

7 As presented to the clerk-magistrate, Ovalles's affidavit
included the following sentence as part of his account of the
girlfriend's interview with the police: "Detectives were
informed that [the defendant] had purchased (2) pounds of
marijuana from [the acquaintance], but [the acquaintance] had
indicated [the defendant] was short on money they had agreed for
the arranged narcotics transactions." On the hearing date,
however, defense counsel "agreed to forgo [the] . . .
preliminary hearing" required under Franks in exchange for the
prosecutor's agreement to substitute the word "weed" for the
words, "(2) pounds of marijuana."

8 There is thus no proper basis for appellate counsel's
repeated statements to that effect in the defendant's appellate
brief. Likewise, appellate counsel's representation that "[t]he
Commonwealth conceded (at a [Franks] hearing) that Ovalles
deliberately lied in his search warrant affidavit and agreed to
purge the untruth from the affidavit" is not supported by the
record. We also need not address the argument that Ovalles
should be charged with perjury.

8
2. Probable cause. Accepting the information in the

affidavit as reliable, and conducting our probable cause

analysis focused on "the factual and practical considerations of

everyday life on which reasonable and prudent [people], not

legal technicians, act," Commonwealth v. Hason, 387 Mass. 169,

174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175

(1949), we readily discern probable cause to search the

defendant's apartment for marijuana and evidence of marijuana

distribution.

We are satisfied that the affidavit established probable

cause to believe that the defendant possessed more than the ten

ounces of marijuana permitted under G. L. c. 94G, § 7 (a) (2). 9

From the defendant's girlfriend's account of the defendant's

relationship with the acquaintance and the circumstances of the

October 23, 2020, break-in, it is evident that the defendant

bought marijuana from the acquaintance on October 23, 2020, and

on prior occasions. While it is possible, as the defendant

argues, that the defendant's purchases were exclusively for

personal use and that he possessed only the amounts permitted by

G. L. c. 94G, § 7 (a) (2), that is not the inference we think

reasonable in this case. See Snow, 486 Mass. at 586 (2021),

9 We assume without deciding that the defendant was at least
twenty-one years old at the times relevant here. See G. L.
c. 94G, § 7 (a).

9
citing Dorelas, 473 Mass. at 501. The girlfriend told the

police that the acquaintance and the defendant argued on the

afternoon of the break-in over the defendant's failure to pay in

full for the marijuana the acquaintance sold to him, and she

identified the acquaintance as one of the men caught on

surveillance video robbing the apartment later that night. We

think it reasonable to conclude that the acquaintance intruded

into the defendant's home to recover the overdue payment, the

marijuana for which payment was due, or both. Even taken alone,

the acquaintance's willingness to take the risks associated with

breaking and entering into someone's home, see, e.g., G. L.

c. 266, § 16 (penalty for breaking and entering at night up to

twenty-years imprisonment), indicates that the value of the

marijuana at issue was high. We also consider, however, the

rifle-carrying intruders' leaving ammunition behind where the

defendant would be likely to find it as an implied threat of

future violence, which suggests that the money owed was not

trivial.

We draw an additional set of inferences from Ovalles's

description of the defendant's behavior at and around the time

of the break-in. For example, the defendant did not report, as

the girlfriend did, that the stolen property included "weed."

He likewise failed to mention that the stolen property was

enough to fill the backpacks, boxes, and other containers

10
carried out by the four intruders, suggesting that he did not

want the police to know what property the intruders removed from

his apartment. We infer from these omissions that the defendant

was trying to conceal his marijuana possession from the police.

We consider this as evidence of the defendant's consciousness of

guilt. See Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 640

(2003) (reasonable to infer consciousness of guilt from

"defendant's statements to the police, and the omissions

therefrom"). We also think it is reasonable to infer that the

defendant attempted to minimize the officers' ability to smell

the strong odor of unburned marijuana coming from his apartment

when the police were there four days after the break-in, which

bolsters our conclusion that the amount of marijuana in the

defendant's possession was more than the law allowed. 10

Together, Ovalles's averments permit a reasonable inference --

and one that we draw -- that the defendant possessed more

marijuana than the amount permitted under G. L. c. 94G, § 7 (a).

As to distribution, the landlord's account of the heavy

foot traffic to and from the defendant's apartment, viewed

through the lens of Ovalles's training and experience, was

consistent with distribution of drugs from that apartment. Cf.

10We do not suggest that the odor itself or the strength of
that odor provided probable cause to believe that the defendant
possessed a criminal amount of marijuana. See Commonwealth v.
Overmyer, 469 Mass. 16, 22 (2014).

11
Commonwealth v. Hill, 51 Mass. App. Ct. 598, 607 (2001)

("minimal foot traffic" insufficient to establish existence of

drug distribution from given location). The same is true of the

defendant's possession of a large amount of cash in his bedroom

drawer. See Pena v. Commonwealth, 426 Mass. 1015, 1017 (1998)

(petitioner's arrest "with a large amount of cash on his person"

evidence of defendant's "direct participation in . . . drug

distribution"). Considered along with the information we have

already discussed suggesting that the defendant possessed more

than the amount of marijuana permitted for personal use under

G. L. c. 94G, § 7 (a), we are satisfied that the affidavit

established probable cause to believe that the defendant was

engaged in distributing marijuana. 11

Finally, even if we were to conclude that the affidavit

failed to establish probable cause that the defendant possessed

more than ten ounces of marijuana at any time relevant to our

analysis, Ovalles's affidavit established probable cause to

11Based on the lack of any detail about the defendant's
prior conviction for marijuana distribution, we give the fact of
that conviction no weight. Cf. Commonwealth v. Allen, 406 Mass.
575, 579 (1990), quoting Commonwealth v. Germain, 396 Mass. 413,
418 n.7 (1985) (defendant's criminal history relevant to
probable cause determination "only if the history is
sufficiently recent and similar to the crime charged to
demonstrate that 'the defendant was not averse' to committing
such a crime"). We likewise do not consider the defendant's
gang membership in our calculus as the affidavit did not provide
any detail of a nexus between the gang and the defendant's drug
distribution.

12
believe that the defendant was distributing marijuana from his

apartment. Whatever the defendant's ability to possess

marijuana legally, he was not permitted to sell it, see G. L.

c. 94C, § 32C, and we see no reasonable argument that the

defendant was giving the marijuana away for free. Accordingly,

the affidavit was sufficient to defeat the motion to suppress.

Order allowing motion to
suppress reversed.

By the Court (Meade, Neyman &
Hand, JJ. 12),

Assistant Clerk

Entered: May 10, 2024.

12 The panelists are listed in order of seniority.

13