Massachusetts Supreme Judicial / Appeals Courts

COMMONWEALTH v. GALLAGHER, 06-P-529 (Mass.App.Ct. January
12, 2007) COMMONWEALTH v. Stephanie GALLAGHER (and thirteen
companion cases[fn1]). No. 06-P-529. Appeals Court of
Massachusetts. November 9, 2006. January 12, 2007.

[fn1] Eight against Stephanie Gallagher and five against
Korey Lee.

Present: Kantrowitz, Brown, & Green, JJ.

Search and Seizure, Warrant, Affidavit, Probable cause.
Constitutional Law, Search and seizure, Probable cause.
Probable Cause. Controlled Substances.

COMPLAINTS received and sworn to in the Brockton Division
of the District Court Department on February 2, 2004.

Pretrial motions to suppress evidence were heard by David
G. Nagle, Jr., J.

An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal
was reported by him to the Appeals Court.

Laura F. Weierman, Assistant District Attorney, for the
Commonwealth.

Joseph F. Krowski, Jr., for Stephanie Gallagher.

Kirsten A. Zwicker Young for Korey Lee.

KANTROWITZ, J.

The motion judge allowed the defendants’ motions to
suppress evidence found in their apartment, concluding that
the affidavit in support of the search warrant application
failed to establish the requisite nexus between the objects
sought and the defendants’ apartment. The Commonwealth
appeals. We reverse.

Facts. The facts come from Brockton police Detective Thomas
E. Keating’s affidavit. See Commonwealth v. O’Day, 440
Mass. 296, 297 (2003), quoting from Commonwealth v.
Villella, 39 Mass.App.Ct. 426, 428 (1995) (“[O]ur inquiry
as to the sufficiency of the search warrant application
always begins and ends with the `four corners of the
affidavit’ “).

On January 21, 2004, Keating, who had spent the previous
eleven years of his sixteen-year career in narcotics and
gang units, received information about a “crack” cocaine
delivery service operating in Brockton. He learned that by
telephoning s specific number and asking for Stephanie, a
female would respond and ask the caller what he wanted as
well as where and when to meet. Thereafter, either Stephanie
or her boyfriend “Korey,” or both, would deliver the crack
cocaine to the buyer in a blue Dodge Durango sport utility
vehicle with license plate number 22NX13.

Armed with this information, Keating, that same day,
telephoned the number and asked for Stephanie. A female
asked what he wanted, to which he responded, “[T]wo
twenties.” The female then identified herself as Stephanie
and told him to go to the McDonald’s restaurant on Crescent
Street, from which “she [was] only a couple minutes away,”
at which point he should call her again.

Keating followed the instructions, telephoning Stephanie
after he arrived at the designated area, located within
1,000 feet of the Downey Elementary School. He told her
that he was in the parking lot, to which she replied that
“she would be there in two minutes.” True to her word, an
individual, later identified as defendant Stephanie
Gallagher, arrived within minutes, in the blue Dodge
Durango with license plate number 22NX13, and the drug deal
was consummated. Surveillance units followed Gallagher back
to 506 Crescent Street, where they observed her park her
car in the side driveway and walk in the side entrance of
the apartment building at that address.

A few days later, on January 25, 2004, two minutes after
Keating telephoned to set up a second controlled drug buy
with Gallagher, surveillance units observed her exit the
side door of the apartment building at 506 Crescent Street,
enter the blue Dodge Durango, and drive to the McDonald’s
parking lot where Keating again purchased crack cocaine
from her. Additional surveillance units then followed
Gallagher back to 506 Crescent Street where they observed
her park the Durango, walk in the side entrance, and enter
a first-floor apartment.

On January 27, 2004, two police officers confirmed that
Gallagher and defendant Korey Lee resided in the
first-floor rear apartment at 506 Crescent Street.

[fn2] The following day, within five minutes of Keating
setting up a third controlled drug buy with Gallagher,
surveillance units observed both defendants leave their
apartment at 506 Crescent Street and proceed directly in
the blue Dodge Durango to the McDonald’s parking lot where
they sold Keating more crack cocaine.

Armed with this information, Keating, on January 29, 2004,
applied for, and received, a warrant to search the
defendants’ first-floor rear apartment at 506 Crescent
Street. On January 31, prior to the warrant being executed,
a fourth controlled buy was arranged, during which
Gallagher was arrested ($1,737 being seized from her). The
search of the apartment occurred shortly thereafter,
resulting in the arrest of Lee and the seizure of a
cellular telephone (with the same number that Keating had
telephoned), a sandwich bag containing thirteen individual
pieces of crack cocaine, a box of Glad sandwich bags, and
paperwork identifying both Gallagher and Lee as residents
of the apartment. The defendants were charged with numerous
drug offenses.[fn3]

In response to the defendants’ motions to suppress, the
motion judge ruled that the affidavit in support of the
search warrant application failed to establish the nexus
between the objects sought and the location to be searched
because “[n]o other specific information was given [in the
affidavit] that connected 506 Crescent Street to the
alleged drug dealing activities.”

Discussion. “The information in the affidavit must be
adequate to establish a timely nexus between the defendant
and the location to be searched and to permit the
determination that the particular items of criminal
activity sought reasonably could be expected to be found
there.” Commonwealth v. Eller, 66 Mass.App.Ct. 564, 565
(2006). “The connection between the items to be seized and
the place to be searched does not have to be based on
direct observations; it may be found by looking at the type
of crime, nature of the items, the suspect’s opportunity to
conceal items, and inferences as to where the items are
likely to be hidden.” Commonwealth v. Olivares, 30
Mass.App.Ct. 596, 600 (1991).

The information recited in Keating’s affidavit established
probable cause for the warrant to search the defendants’
apartment located at 506 Crescent Street. During the second
and third controlled drug buys on January 25 and 28, 2004,
the police observed Gallagher leave her apartment only
minutes after Keating arrived at the McDonald’s parking lot
and telephoned her.[fn4] She drove directly to the
prearranged location, did not make any stops along the way,
and sold crack cocaine to Keating. Surveillance units also
observed Gallagher return to her apartment after she
completed the first and second drug deals.

Gallagher’s routine of leaving from and returning to her
apartment demonstrated a pattern of drug dealing consistent
with the crack cocaine delivery service Keating outlined in
his affidavit. Furthermore, it was reasonable to infer that
the delivery service was based out of her apartment, in
which the drugs were kept prior to delivery. See
Commonwealth v. Hardy, 63 Mass.App.Ct. 210, 212-213 (2005)
(where affidavit stated that the defendant drove directly
from his apartment to designated locations to sell drugs on
two controlled drug buys and that officers observed
defendant leave apartment, drive to locations, and engage
in apparent drug transactions on numerous other occasions,
affidavit established nexus between defendant’s drug dealing
activity and his apartment); Commonwealth v. Santiago, 66
Mass.App.Ct. 515, 522 n. 15 (2006) (where affidavit stated
that on one occasion the defendant’s partner went to a
house, came out shortly thereafter, and went directly to
informant to sell him drugs, and that on another occasion
the defendant himself exited the front door of the same
house and went directly to informant to sell him drugs,
affidavit established probable cause that evidence of
defendant’s narcotics operation could be found in the
house); Commonwealth v. Eller, 66 Mass.App.Ct. at 570-571
(where affidavit established defendant’s use of prior
residence as base for drug dealing operation and defendant
subsequently moved to a motel room from which he left to
sell drugs and returned shortly thereafter, there was a
reasonable basis to conclude that evidence of defendant’s
drug dealing would be located in the motel room). See also
Commonwealth v. Donahue, 430 Mass. 710, 712 (2000) (“The
affidavit need not convince the magistrate beyond a
reasonable doubt, but must provide a substantial basis for
concluding that evidence connected to the crime will be
found on the specified premises”).

The present case is distinguishable from Commonwealth v.
Smith, 57 Mass.App.Ct. 907, 908 (2003), where we held that
a single police observation of the defendant leaving his
home to conduct a drug transaction, without any other
evidence linking the illegal drug activities to the
defendant’s property, failed to establish probable cause
for a warrant to search his home. Here there was adequate
information to establish that the defendants were engaged in
a crack cocaine delivery service that involved completing
drug transactions away from and outside of their residence,
and that the drugs were kept in their apartment. See
Commonwealth v. Alcantara, 53 Mass.App.Ct. 591, 594 (2002)
(even where police failed to observe buyer enter
defendant’s apartment, because defendant usually delivered
drugs away from his apartment, “it was reasonable to infer
for purposes of probable cause that [the defendant]
probably kept the drugs he sold in his apartment”). See
also Commonwealth v. Hardy, 63 Mass.App.Ct. at 213.

Order allowing defendants’ motions to suppress evidence
reversed.

[fn2] Two police officers visited the apartment building at
506 Crescent Street and spoke with Gallagher, who informed
them that she lived in the first-floor rear apartment with
her boyfriend Korey Lee and that she was renting the blue
Dodge Durango that was parked in the driveway. She also
gave the police her telephone number (the same number that
Keating had telephoned) in case they needed to contact her.
Records of the Registry of Motor Vehicles, the Brockton
police department, and the Enterprise Rent-A-Car Company
confirmed her statements. The circumstances of the ruse
initially used to approach the apartment and speak with
Gallagher are unclear.

[fn3] Gallagher was charged with four counts of distribution
of a class B substance in violation of G.L. c. 94C,
§ 32A(a ); one count of possession with intent to
distribute a class B substance in violation of G.L. c. 94C,
§ 32A(c ); three counts of a drug violation within
1,000 feet of a school in violation of G.L. c. 94C,
§ 32J; and one count of conspiracy to violate drug
laws in violation of G.L. c. 94C, § 40. Lee was
charged with one count of distribution of a class B
substance; one count of possession with intent to
distribute a class B substance; two counts of a drug
violation within 1,000 feet of a school; and one count of
conspiracy to violate drug laws.

[fn4] While the police did not see from where Gallagher
departed for the first controlled buy on January 21, it is
a fair inference, especially when taken in conjunction with
subsequent surveillance, that she came from her home, mere
minutes away from the buy location. See Commonwealth v.
Vynorius, 369 Mass. 17, 19 n. 4, 23-24 (1975) (where
defendant, in a playground located ten minutes away from his
apartment, agreed to sell informant marijuana, and
thereafter walked from the playground in the direction of
his apartment and returned approximately twenty minutes
later to complete the sale, it was reasonable to conclude
that the defendant stored the marijuana in his apartment).
See also Commonwealth v. Taglieri, 378 Mass. 196, 198,
cert. denied, 444 U.S. 937 (1979) (magistrate may draw
reasonable inferences from the facts outlined in the
affidavit).