NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Escalera, 462 Mass. 636 (2012)

CONTRIBUTING EDITOR: LIZ ANDERSON I. Procedural History

Following a search of his apartment, the defendant moved to suppress contraband obtained by officers.1 The judge denied the defendants motion, and a Superior Court jury subsequently convicted defendant for: (1) trafficking in heroin; (2) possession of cocaine with intent to distribute; (3) corresponding school zone violations; (4) unlawful possession of a firearm without a firearm identification card; and (5) unlawful possession of ammunition without a firearm identification card.2 The defendant appealed his convictions and the denial of his motion to suppress; the Appeals Court determined that the lower court properly denied the defendants motion to suppress.3 However, the Appeals Court reversed all the convictions (except for the ammunitions charge), finding that the defendants Sixth Amendment right to confrontation was violated because the drug and ballistic certificates admitted as evidence during trial were not accompanied by testimony of the analysts who produced the certificates.4 The defendant applied to the Supreme Judicial Court for further appellate review, and the application was granted.5 II. Facts In March 2005, a confidential informant provided information to Brockton police about the defendant, whom he identified as a dark skinned Hispanic male who was selling heroin in the city of Brockton.6 He also agreed to participate in controlled purchases of heroin from the
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Commonwealth v. Escalera, 462 Mass. 636, 637 (2012). Id. Id. Id. at 637-638. Id. at 638. Id. at 638-639.

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defendant.7 Over the course of the next two weeks, Brockton police conducted surveillance of the defendant.8 Police found that the defendant typically left his apartment building soon after receiving a call to purchase drugs, drove directly to the specified meeting location, and then immediately returned to the apartment building.9 Based on this and other detailed information, the police obtained a warrant to search the defendants apartment in Brockton on April 11, 2005.10 The warrant authorized the search of the apartment, and any person present, for drugs and materials, products, equipment, books, records, and proceeds related to drug distribution.11 Upon execution of the warrant, police found cocaine, cash, a shoulder holster, two cellular telephones, a digital scale, and paperwork that bore the name of the defendant in the apartment itself.12 A search of the locked basement of the apartment building, which was allegedly only accessible to the building owner and the tenants of defendants apartment, produced two guns, ammunition, and thirty-four grams of heroin.13 III. Issues Presented 1. Did the police affidavit supporting the search warrant establish a sufficient nexus between the defendants drug dealing activities and his apartment so that probable cause existed to search the apartment?14 2. Was the locked basement, which was not specifically identified in the search warrant, within the curtilage of the apartment and thus within the scope of the warrant to search the apartment?15 3. Did the Commonwealth meet its burden at trial in providing evidence that would allow a jury to find beyond a reasonable doubt that the defendant constructively possessed the items discovered in the locked basement?16 4. Is the defendant entitled to a new trial on all charges, with the exception of the ammunition charge, because of the violation of his right to confrontation under the Sixth Amendment?17

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Commonwealth v. Escalera, supra at 639 (2012). Id. 9 Id. at 639-640. 10 Id. at 638, 640-641. 11 Id. at 641. 12 Id. 13 Commonwealth v. Escalera, supra at 641. 14 See id. at 641-642. 15 See id. at 647. 16 See id. at 649. 17 See id. at 650.

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Commonwealth v. Escalera

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IV. Holdings and Reasoning 1. Pursuant to Commonwealth v. Pina, a search warrant of a suspected drug dealers home requires the police to provide particularized information, based on surveillance and other sources, which would allow for a reasonable inference that a supply of drugs was likely kept in the home.18 That burden was met in this case, as the police affidavit described at least three occasions where police observed the defendant leave his apartment to drive to a location for an apparent drug deal and then immediately return to his apartment at the deals conclusion.19 2. The locked basement was within the curtilage of the apartment, and thus the search of the basement was within the scope of the warrant.20 Although curtilage in an apartment building is typically very limited,21 it may extend beyond the tenants unit to separate areas subject to [the tenants] exclusive control.22 As the evidence provided to the motion judge established that the tenants of the defendants apartment likely had exclusive use of and access to the locked basement during their tenancy, the judge was not in error when he concluded that the locked basement was curtilage to the apartment itself.23 3. The Commonwealth met its burden of proof in showing the defendants constructive possession of the items found in the locked basement.24 The Commonwealth was able to show constructive possessionor knowledge coupled with the ability and intention to exercise dominion and control25in several ways, including evidence that the defendants brother and co-tenant had a key to the basement, that a holster that fit one of the guns recovered from the basement was found in the defendants bedroom closet, and that the defendant made a spontaneous statement at the time of the search implying knowledge of the contents in the basement before he was informed of what was recovered by police.26 4. The defendant is entitled to a new trial on all charges, with the exception of the ammunitions charge, due to the violation of his Sixth Amendment right to confrontation under Melendez-Diaz v.
Id. at 643, quoting Commonwealth v. Pina, 453 Mass. 438, 442 (2009). Commonwealth v. Escalera, supra at 645-646. 20 Id. at 648. 21 Id., quoting Commonwealth v. McCarthy, 428 Mass. 871, 875 (1999). 22 Id., quoting Commonwealth v. Thomas, 358 Mass. 771, 775 (1971). 23 Id. 24 Id. at 649. 25 Commonwealth v. Escalera, supra 649, quoting Commonwealth v. Boria, 440 Mass. 416, 418 (2003).
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Id.

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Massachusetts.27 The admission of the certificates without the testimony of the analysts was not harmless beyond a reasonable doubt.28

Id. at 650, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009). Id., citing Commonwealth v. Vasquez, 456 Mass. 350, 368 (2010); Commonwealth v. Tyree, 455 Mass. 676 (2010).
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