                                                   Supreme Court

                                                   No. 2010-225-C.A.
                                                   (P2/07-4140A)

      State                      :

        v.                       :

Geronimo Cosme.                  :




NOTICE: This opinion is subject to formal revision before
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notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                    Supreme Court

                                                                    No. 2010-225-C.A.
                                                                    (P2/07-4140A)

                     State                       :

                       v.                        :

               Geronimo Cosme.                   :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Chief Justice Suttell, for the Court. The defendant, Geronimo Cosme, appeals from a

judgment of conviction for possession of cocaine with the intent to deliver and for possession of

cocaine in an amount between one ounce and one kilogram.              Specifically, the defendant

challenges the denial of his motion to suppress evidence seized from his home, arguing that the

affidavit underlying the warrant did not provide the requisite probable cause to support a search

of his residence. In support of his argument, he contends that the affidavit not only failed to

establish a nexus between the alleged unlawful conduct and his home, but also that the

confidential informant (CI), upon whom the affiant depended, was not reliable and had no

established basis of knowledge nor sufficient veracity to justify issuing a search warrant for the

defendant’s residence. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

                                                I

                                 Facts and Procedural History

       On July 27, 2007, David Silva, a narcotics detective for the Pawtucket Police

Department, executed a search warrant at defendant’s residence, located at 111 Freight Street,



                                               -1-
Apartment 4, in the City of Pawtucket. 1 A search of the apartment produced the following

evidence: Under defendant’s bed was an unlocked, metal safe that contained 1.10 ounces (31.29

grams) of cocaine packaged in a clear plastic bag, a black digital scale, a box of plastic sandwich

bags, a calculator, two bottles of super inositol, 2 scissors, two cell phones, 3 defendant’s personal

papers, and $718 in cash. In defendant’s bedroom closet was a gray metal safe containing more

of defendant’s personal papers, including various bills, a Social Security card, a resident alien

card, tax information, and various pieces of mail.         Also, defendant’s driver’s license was

discovered on a bedroom bureau.

       The defendant was subsequently charged by information with possession of cocaine with

intent to deliver (count 1), possession of cocaine in an amount between one ounce and one

kilogram (count 2), distributing and/or manufacturing cocaine within three hundred yards of a

school (count 3), and maintaining a narcotics nuisance (count 4). 4 Before the trial commenced,

defendant moved to suppress the evidence seized from his residence, alleging that the warrant

failed to establish probable cause to justify the search of the apartment because there was “no

nexus between the controlled buy described in the search warrant affidavit and the premises

searched.”

       At a hearing on May 12, 2009, Det. Silva testified that the execution of the search

warrant for defendant’s residence “was the culmination of an illegal street distribution of




1
  The three-story apartment building located at this address contains approximately thirty-six
separate apartments.
2
  Detective Silva explained that “[s]uper inositol is [a] B complex powder supplement * * * used
by narcotics traffickers * * * as a cutting agent to multiply their quantity of cocaine.”
3
  According to Det. Silva, based upon his training and experience, “those who traffic narcotics
have two phones; one to maintain for their narcotics business, and the other for daily activities.”
4
  Prior to trial, the state dismissed counts 3 and 4 pursuant to Rule 48(a) of the Superior Court
Rules of Criminal Procedure.
                                                -2-
cocaine.” The affidavit upon which the search warrant was based reads, in pertinent part, as

follows:

                      “[Detective Silva] received information from confidential
              informant(s) concerning the illegal street distribution of [cocaine].
              The information described the target to be a black male distributing
              [cocaine] from 111 Freight Street apartment #4 in the city of
              Pawtucket, Rhode Island. After further investigation, it was
              revealed that the male in question was identified as Geronimo
              Cosme * * *. Based on the information and the investigation, the
              aforementioned activity occurs primarily during the nighttime
              hours. Also, in the course of the investigation, [Det. Silva] has
              determined through police records, license records, and
              surveillance that Geronimo Cosme * * * lives at 111 Freight Street
              apartment #4 in the City of Pawtucket, Rhode Island.
              Furthermore, [Det. Silva] has conducted surveillance on Geronimo
              Cosme and observed him in R.I. reg. OY-275 on a black Chrysler
              Concorde making short stops meeting different people at various
              discreet locations consistent with street level distribution of
              narcotics. Also, consistent with the information provided by our
              confidential informant(s) (CI).

                      “On or between July 21, 2007 and July 27, 2007 the
              members of the Pawtucket Police Department Special Squad Unit
              met with a confidential informant(s) (CI). The CI was searched for
              contraband with negative results before being provided with
              Official City of Pawtucket Funds. The CI was instructed to
              attempt to make contact with Geronimo Cosme * * *. The CI was
              instructed by Cosme to meet at a prearranged location. Under the
              surveillance of members of the Special Squad, the CI met with a
              black male whom the CI positively identified as Geronimo Cosme
              * * *. The CI then purchased a quantity of white rock like
              substance from Geronimo Cosme * * * in exchange for Official
              City of Pawtucket funds. The CI then left the area and responded
              to a prearranged location under the surveillance * * *.”

After hearing arguments from the state and defendant, the trial justice denied defendant’s motion

to suppress. A bench trial commenced later that same day, which resulted in a finding of guilt on




                                              -3-
both of the remaining counts. 5 The defendant’s sentencing hearing was held on July 9, 2009,

and for each count he was sentenced to ten years at the Adult Correctional Institutions, with

fourteen months to serve and 106 months suspended, with probation. A judgment of conviction

was entered on September 14, 2009, from which defendant has appealed. 6

                                                 II

                                       Standard of Review

       “When reviewing a trial justice’s decision granting or denying a motion to suppress, ‘we

defer to the factual findings of the trial justice, applying a clearly erroneous standard.’” State v.

Storey, 8 A.3d 454, 459-60 (R.I. 2010) (quoting State v. Flores, 996 A.2d 156, 160 (R.I. 2010)).

“Our review of ‘a trial justice’s determination of the existence or nonexistence of probable

cause’ necessitates de novo treatment.” Id. at 460 (quoting Flores, 996 A.2d at 160). This Court

must, however, accord great deference to the trial justice’s probable-cause determination, “so

long as there is a showing of ‘a substantial basis from which to discern probable cause.’” Id.

(quoting State v. Byrne, 972 A.2d 633, 638 (R.I. 2009)).

                                                III

                                            Discussion

       On appeal, defendant argues that the trial justice erred in denying his motion to suppress

the evidence discovered by the police during a search of his residence because the affidavit upon

which the search warrant was predicated did not demonstrate the requisite probable cause to

5
  Before the start of the trial, defendant renewed his objection to the denial of his motion to
suppress. He requested a continuing objection during the testimony of Det. Silva, the only
witness in this case, and he also reasserted his objection after the state rested its case.
6
  The defendant filed his appeal on July 9, 2009, before entry of the judgment of conviction on
September 14, 2009. This Court, however, will treat defendant’s appeal as timely because we
have stated previously that we “will treat a premature appeal as if it had been timely filed.”
Chapdelaine v. State, 32 A.3d 937, 941 n.1 (R.I. 2011) (quoting Bleau v. State, 968 A.2d 276,
278 n.1 (R.I. 2009) (mem.)).
                                                -4-
support the warrant. Specifically, defendant argues that “the affidavit failed to provide direct or

indirect facts from which reasonable inferences could be drawn that the instrumentalities of an

alleged crime could be found * * * in [defendant’s] home rather than his car.” He also contends

that “there is no information contained in the affidavit by which a magistrate could determine the

[confidential] informant’s veracity or reliability.” 7

                                                   A

           The Nexus Between the Unlawful Conduct and the Place to be Searched

        The defendant avers that “[t]he fundamental flaw in th[e] affidavit [supporting the search

warrant for his residence] is that it does not explain why there was probable cause to believe that

drugs or drug paraphernalia would be found at [his residence].”            He contends that the

information provided by the CI supports probable cause that drug dealing activities were taking

place only from his vehicle, not from his home, because it lacks any “first-hand accounts of

criminal activity connected to the home, [any] third-party information tying criminal activity to

the home, [or any] demonstrable familiarity with the home or the activities of its inhabitants.”

He further maintains that the subsequent observations of Det. Silva do not establish probable

cause since “[t]here are no specific allegations, or particularized information based on police

surveillance, that the defendant [was] likely to keep drugs or drug paraphernalia in his home.”

Moreover, although recognizing that direct evidence is not necessary for a magistrate to find

probable cause, defendant avers that “the affidavit in this case is devoid of even the more general

information [that c]ourts have turned to” to establish a nexus “between a defendant’s drug

dealing and [his or her] home.” Lastly, he postulates that the mere fact that a person is believed

7
  The defendant further argues that the “good faith” exception to search warrants, as promulgated
in United States v. Leon, 468 U.S. 897, 913-17 (1984), does not appy to his appeal. However,
we need not reach this argument because we hold that the affidavit in this case does establish the
requisite probable cause for the warrant at issue.
                                                  -5-
to be a drug dealer, without more, does not furnish probable cause to expect that drugs would be

found in his or her home.

        The defendant cites State v. Pratt, 641 A.2d 732, 737 (R.I. 1994), to support his

contention that the affidavit in his case lacked probable cause. He argues that probable cause

was established there because “the informant lived in the same residence as the defendant and

packaged and purchased drugs there,” but that, in his case, the police did not observe defendant

“in or near his residence,” nor was his vehicle connected to his home. Therefore, according to

defendant, probable cause to search his residence was lacking. He also attempts to distinguish

his case from State v. Verrecchia, 880 A.2d 89, 96, 97 (R.I. 2005), in which a CI gave the police

an exact location of where the illegal contraband was being stored, as well as the defendant’s

telephone number, which was used to call the defendant and complete an undercover buy.

According to defendant, the police in Verrecchia made direct observations that verified the CI’s

tip and “established facts by which a magistrate could infer that evidence of contraband was

likely to be located in [the place where the CI reported that it was being stored].” The defendant

states, in his brief, that:

                 “In stark contrast to the careful and diligent police investigation in
                 State v. Verrecchia, the * * * police detectives in [defendant’s]
                 case reported no surveillance, monitoring, or any police legwork
                 that resulted in facts by which a reviewing court might infer a
                 nexus existed between [defendant’s] alleged vehicle drug dealing
                 and his home.”

        Further, defendant attempts to distinguish his case from both United States v. Barnes, 492

F.3d 33, 37 (1st Cir. 2007), and United States v. Angulo-Lopez, 791 F.2d 1394, 1398, 1399 (9th

Cir. 1986) (both holding that there was a nexus between the drug dealing activity and the

defendants’ homes from which they had been observed leaving)—cases that the trial justice

relied upon in finding that probable cause existed within the affidavit. The defendant argues that

                                                 -6-
the trial justice based his denial of defendant’s motion to suppress “on a statement borrowed

from case law rather than on an examination of the evidence[—]and lack of evidence[—]in the

affidavit before him.” The defendant contends that “the Barnes Court arrived by deduction at its

conclusion after a logical and inferential examination of the facts present in the affidavit,”

whereas the trial justice in this case merely “relied upon the bare conclusion that street level drug

dealers store their wares in their homes.” He posits that the affidavit in his case is different from

the one in Barnes because

               “[t]he informant [here], unlike the Barnes informant, did not
               observe drugs inside the residence, or profess familiarity with the
               inside of the residence, or even describe [defendant] by name, or
               provide details or description of [defendant’s] car. No reports
               were made in the affidavit that [defendant] was observed outside of
               the residence, or that he left the residence directly before selling
               drugs, or that drug paraphernalia or residue was discovered [near
               his residence], or that the extent of his drug dealing was such that
               the accumulation of proceeds would demand a safe and accessible
               hiding place.”


       The state counters that probable cause was properly established within the four corners of

the affidavit and that the trial justice did not err in his determination that the search warrant was

valid. The state, quoting United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir. 1999), argues:

               “[I]t is absurd to believe that an individual who deals drugs from
               his car is storing his entire supply, along with the requisite records
               and paraphernalia, in the vehicle; instead, it is entirely logical to
               infer that such contraband and the accompanying evidence will be
               found in a ‘safe yet accessible place,’ namely, the suspect’s home.”

       “The Fourth Amendment to the United States Constitution and article 1, section 6, of the

Rhode Island Constitution, prohibit the issuance of a search warrant absent a showing of

probable cause.” Byrne, 972 A.2d at 637 (quoting Verrecchia, 880 A.2d at 94). “Probable cause

must be ascertained within the four corners of the affidavit prepared in support of the warrant


                                                 -7-
* * * and based on the totality of the circumstances presented in the affidavit.” Id. at 638. “In

making this determination, the issuing magistrate must review the affidavit and, based on the

facts contained therein, together with the reasonable inferences that may be drawn from those

facts, make a practical, commonsense determination as to whether ‘there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” Id. (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)).       “‘The magistrate need only conclude that it would be

reasonable to seek the evidence in the place indicated in the affidavit,’ and ‘[i]n doubtful cases,

the reviewing court should give preference to the validity of the warrant.’” Id. at 639 (quoting

United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985)).

        In Byrne, this Court stated that “‘[t]he requisite nexus between the criminal article or

activity described in the affidavit and the place to be searched need not be based on direct

observation.’ * * * Rather, it ‘may be found in the type of crime, the nature of the * * * items

[sought], the extent of the suspect’s opportunity for concealment, and normal inferences as to

where a criminal would be likely to hide [items of the sort sought in the warrant].’” Byrne, 972

A.2d at 640 (quoting Commonwealth v. Anthony, 883 N.E.2d 918, 926 (Mass. 2008)). The

defendant, quoting Byrne, 972 A.2d at 641, however, attempts to distinguish his drug-dealing

case from Byrne, a video voyeurism case, by stating that, “[u]nlike drug dealing which often

takes place in public on the open street and often involves multiple public interactions between

various individuals, child pornography is by its very nature ‘a solitary and secretive crime.’” He

further contends that “[g]iven the public, recurring, and non-solitary character of drug dealing,

the ‘nature of the crime’ analysis which guided th[is] Court in Byrne is inapplicable to the facts

of this case.”

        The trial justice stated:


                                               -8-
               “The fact that in [Barnes and Angulo-Lopez] there is a
               distinguishing factor that the defendant was seen coming from the
               residence does not necessarily mean in all instances the suspect has
               to have come from the residence in order to raise antennae in the
               eyes of the experienced police officer, particularly where an
               informant was proven to be reliable, as the informant here was.
                       “* * * The [Barnes] Court goes on to say, ‘This Court has
               repeatedly found, however, that when a defendant sells drugs
               outside his home, it is reasonable to conclude that there is evidence
               of this drug dealing activity in the home.’ * * *
                       “Although that factor is absent in the instant case, that
               language is nonetheless instructive, as is the language in the
               Angulo[-Lopez] case * * *. The Court says, ‘Direct evidence that
               contraband or evidence is at a particular location is not essential to
               establish probable cause to search the location. A magistrate is
               entitled to draw reasonable inferences about where evidence is
               likely to be kept based on the nature of the evidence and the type
               of offense. In the case of drug dealers, evidence is likely to be
               found where the dealers live.’”

       We concur with the analysis of the trial justice. Drugs must be stored and secreted, and

we are of the opinion that the trial justice made a reasonable inference when he stated “that a

drug dealer keeps his narcotics and * * * the paraphernalia for packaging for sale of such

narcotics[] secreted in his residence.” Here, the affidavit explicitly states that the CI reported the

distribution of cocaine by a black male from 111 Freight Street, Apartment 4 in Pawtucket. The

police then investigated and determined that the male described was defendant and that

defendant resided at that address.      Although not stating that the police directly observed

defendant enter and exit this apartment to go sell drugs from his vehicle, we conclude that the

totality of the circumstances presented within the affidavit was sufficient to enable the magistrate

to reasonably infer that illegal contraband would be found in defendant’s residence. Therefore,

we find no error in the trial justice’s determination “that the affidavit is sufficiently strong to

support a finding of probable cause to search the residence of this defendant.”




                                                -9-
                                                 B

                         The Reliability of the Confidential Informant

       The defendant argues that the affidavit does not contain any information by which a

magistrate could determine the CI’s veracity or reliability because it does not state the basis of

the CI’s knowledge or history of reliability or set out the time frame for when the tip was

received in comparison to when the investigation took place. Moreover, defendant alleges that

“the use of an informant to conduct a controlled buy does not solve the affidavit’s deficiencies

because the confidential informant who participated in the controlled buy appears, again, to lack

any indicia of reliability.” Additionally, he contends that, because the affidavit did not state the

date that the CI provided the tip, the information provided by the CI should be considered stale,

and therefore, deficient as a basis upon which to make a probable cause determination.

       “It is well settled that, under the totality-of-the-circumstances test, ‘an informant’s

veracity, reliability, and basis of knowledge remain highly relevant.’” State v. King, 693 A.2d

658, 661 (R.I. 1997) (quoting State v. Ricci, 472 A.2d 291, 295 (R.I. 1984)). “A deficiency in

veracity or reliability, however, ‘may be compensated for * * * by a strong showing as to the

[basis of knowledge], or by some other indicia of reliability.’” Id. (quoting Gates, 462 U.S. at

233). “The totality-of-the-circumstances approach also recognizes the probative value of the

‘corroboration of details of an informant’s tip by independent police work.’” Id. (quoting Gates,

462 U.S. at 241).

       To determine a search warrant’s validity, “we examine whether there was ‘a substantial

basis from which to discern probable cause’ from the ‘totality of the circumstances’ found within

‘the four corners of the affidavit prepared in support of the warrant.’” Storey, 8 A.3d at 461

(quoting Byrne, 972 A.2d at 638). “Although each piece of information may not alone be


                                               - 10 -
sufficient to establish probable cause * * *, ‘probable cause is the sum total of layers of

information and the synthesis of what the police have heard, what they know, and what they

observed as trained officers.’” Id. at 462 (quoting State v. Schmalz, 744 N.W.2d 734, 738 (N.D.

2008)).

          In the case under review, the detective received a tip from a CI that a black male was

selling cocaine from 111 Freight Street, Apartment 4, in Pawtucket. A police investigation

ensued, which revealed that the “black male” was defendant and that defendant did live at the

address provided by the informant. Further, Det. Silva observed defendant driving around,

making short stops with different people at different, discreet locations, primarily at night, which

the detective stated was “consistent with street level distribution of narcotics.”        Although

defendant argues that the detective’s observations “seem[] to disprove the [CI’s] tip – i.e. showed

no evidence of any drug dealing from 111 Freight Street,” we are satisfied that the detective’s

observations supported the CI’s veracity, reliability, and basis of knowledge because they

confirmed that defendant probably was selling drugs, as was alleged by the CI in the original tip.

          The CI’s tip, however, is not the only evidence of defendant’s drug activity within the

affidavit that the magistrate had before him when he made his probable-cause determination.

The affidavit states that the detective also set up a controlled buy, which resulted in the

observation of defendant selling cocaine directly to the CI. Whether the person involved in the

controlled buy was the same person who provided the initial tip to the police is irrelevant to the

finding of probable cause. As the trial justice stated:

                 “If it’s the same informant, so much the better for the State,
                 because a controlled buy was accomplished. If it was a different
                 informant, that in no way diminishes the reliability of the initial
                 informant. In fact, what it does is corroborate what the initial
                 informant said * * *; namely, that this fellow was selling drugs.
                 Either way, whether it’s the same informant or a different one, it

                                               - 11 -
               proves out the reliability of the information that the police
               originally received. * * *
                       “* * * I recognize * * * that [the vehicle] was not identified
               in the affidavit as parked at the residence, or that there was any
               drug activity flowing directly from the residence by way of
               description in the affidavit, but, * * * reasonable inferences are
               entitled to be drawn under the totality of the circumstances by the
               issuing magistrate. And, I think it is a fair inference to be drawn
               that a drug dealer keeps his narcotics and indeed the paraphernalia
               for packaging for sale of such narcotics, secreted in his residence.”

We perceive no error in the trial justice’s determination that the CI’s tip was properly

corroborated or that this corroborated tip, combined with defendant’s recent sale of cocaine in a

controlled buy, satisfied the probable cause requirement to support the warrant which authorized

the search of defendant’s residence.

       Additionally, the defendant’s argument that the undated tip presented “the possibility that

the information received by the Detective was stale by the time the cursory investigation began”

is unavailing. The affidavit states that the controlled buy, in which the defendant directly was

observed by the police selling cocaine to the confidential informant, took place on a date

between July 21, 2007, and July 27, 2007. The warrant was authorized, issued, and executed on

July 27, 2007. In Storey, 8 A.3d at 462, we held that “the combination of an older tip, plus fresh

evidence discovered close in time to the warrant application was sufficient to show that the tip

was not stale and to establish probable cause.” Even assuming the initial tip had withered, it

obtained new growth when the police observed the defendant selling cocaine to the CI within

one week of the application for the warrant. As such, we are satisfied that the recent controlled

buy obviated any concern about the timeliness of the initial tip.




                                               - 12 -
                                               IV

                                          Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

The record of this case shall be remanded to the Superior Court.




                                              - 13 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Geronimo Cosme.

CASE NO:              No. 2010-225-C.A.
                      (P2/07-4140A)

COURT:                Supreme Court

DATE OPINION FILED: December 14, 2012

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For State: Jane M. McSoley
                                 Department of Attorney General

                      For Defendant: Lara E. Montecalvo
                                     Office of the Public Defender
