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18-P-1371                                               Appeals Court

                COMMONWEALTH    vs.   JEREMY COSTA.


               No. 18-P-1371.         April 10, 2020.


Controlled Substances. Practice, Criminal, Motion to suppress,
     Warrant. Constitutional Law, Search and seizure, Probable
     cause. Search and Seizure, Affidavit, Probable cause,
     Warrant. Probable Cause.


     This is an interlocutory appeal by the Commonwealth from an
order allowing the defendant's motion to suppress evidence based
on a determination that the affidavit in support of the search
warrant did not establish probable cause because it failed to
demonstrate the reliability of the confidential informant (CI).
Recently, we affirmed an order allowing a motion to suppress
involving a search in the same apartment building in which the
affidavit bears remarkable similarities to the affidavit in this
case. See Commonwealth v. Ponte, 97 Mass. App. Ct. 78 (2020).

     In the present case, as in Ponte, an experienced drug
investigator for the New Bedford Police Department signed an
affidavit in which he asserted that narcotics were being sold
from a particularly identified apartment in a building located
at 280 Acushnet Avenue. Compare Ponte, 97 Mass. App. Ct. at 79.
Here, as in Ponte, the investigator's affidavit indicated that
he knew the CI's identity and address, but it did not indicate
whether the CI had supplied accurate information in the past.
Compare id. The CI reported to the investigator that the CI had
purchased narcotics from an individual in apartment 2L. Compare
id. Also, as in Ponte, the police investigation identified a
specific individual, here the defendant, Jeremy Costa, as
someone who matched the CI's description of the seller. Compare
id. at 80. The CI identified a photograph of Costa as the
seller and a photograph of a woman, whom the police determined
                                                               2


was renting the apartment in question, as Costa's girlfriend.
The police observed Costa's vehicle in the parking lot for the
apartment building at 280 Acushnet Avenue. The police
investigation revealed that Costa had an open criminal case, and
as in Ponte, the investigation also revealed that Costa had been
arraigned numerous times on charges involving narcotics.
Compare id. In this case, as in Ponte, the police arranged for
the CI to contact Costa by telephone for purposes of a
"controlled buy." Compare id. at 79-80. The CI was searched,
found to have no drugs on his or her person, and was observed to
enter the front door of the building at 280 Acushnet Avenue with
only the money given to the CI by the police for the purchase of
narcotics. Compare id. at 80. The police observed the CI exit
through the front door "[a] short time later." And, as in
Ponte, the CI informed the police that the CI had purchased
narcotics from the defendant inside the apartment in question
and turned them over to the police. Compare id.

     In Ponte, we noted that the warrant application described
the building at 280 Acushnet Avenue as a "multi-unit housing
structure with six floors." Ponte, 97 Mass. App. Ct. at 80.
However in that case the affidavit in support of the warrant did
not state the number of apartment units in the building or the
number of units per floor. There, based in part on the
apartment's designation as "2F," the motion judge found that
there were likely at least six apartments on each floor of the
building which would make it a thirty-six unit apartment
building. Id. at 85. In the present case, by contrast, the
affidavit includes a statement that "280 Acushnet Avenue . . .
consists of 144 housing units."

     One of the four essential characteristics of a properly
supervised controlled buy is that the police "escort[ ] or
follow[ ] the informant to the premises where it is alleged
illegal activity is occurring and watch[ ] the informant enter
and leave those premises." Commonwealth v. Desper, 419 Mass.
163, 168 (1994). In Ponte, 97 Mass. App. Ct. at 82-86, after
reviewing prior decisions that addressed the requirement that
the police observe the informant enter the target apartment in
order for an otherwise controlled buy to satisfy the reliability
prong of the Aguilar-Spinelli test, we concluded that the number
of units in the building was a determinative consideration. See
Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.
Texas, 378 U.S. 108 (1964). In buildings with only a few units,
an observation by the police that the informant entered the
building and returned after a few minutes with a quantity of
drugs may be sufficient to demonstrate that the informant
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purchased the drugs from the individual that the informant
described as the seller, but "the inference that the [informant]
purchased the drugs from the target apartment becomes attenuated
in the case of a large apartment building." Ponte, supra at 84.

     In the present case, as in Ponte, the police investigation
of the CI's report strengthened the suspicion that Costa was
selling drugs from his apartment at 280 Acushnet Avenue, but it
did not rise to the level of independent corroboration of the
CI. The controlled buy, therefore, was an essential element in
the effort by the police to corroborate the CI as a reliable
informant. A controlled buy inside a large multiunit building
such as the building at 280 Acushnet Avenue, which contains 144
individual apartments, does not satisfy Desper's requirement
that in order to conduct a controlled buy the police must
"watch[ ] the informant enter and leave those premises."
Desper, 419 Mass. at 168. In Ponte, we did not establish "a
bright-line rule with respect to the required level of detail of
police observations of the particular unit within a multiunit
apartment building from which a controlled buy is made." Ponte,
97 Mass. App. Ct. at 86. Rather, we adhered to precedent that
requires that the affidavit in support of a search warrant "must
contain sufficient details with respect to the attendant
circumstances surrounding the controlled buy." Id. These
include "the layout of the building, the number of apartments,
the location of the defendant's apartment, the details of the
interior of the apartment, where the defendant stored the drugs
in the apartment, and the feasibility (or unfeasibility) of
observing the [informant] enter a particular apartment (and not
another apartment) to conduct the controlled buy -- in order to
justify a conclusion that the [informant] in fact purchased
drugs from the apartment unit the [informant] named." Id.

     In the present case, the affidavit in support of the search
warrant contained none of the details that would serve to
corroborate the CI's report that it purchased drugs from a
particular individual in apartment 2L, and did not explain why
surveillance of the CI inside the apartment building would have
been unreasonable. Accordingly, the order allowing the motion
to suppress is affirmed.

                                   Order allowing motion to
                                     suppress affirmed.

     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
     David Rassoul Rangaviz for the defendant.
