COMMONWEALTH vs. JILLIAN M. SILVA

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Following an investigation of suspected drug

sales by Bryan Simpson, police obtained and executed a warrant

to search the apartment in which they believed Simpson and the

defendant, Jillian M. Silva, lived. The defendant was

subsequently charged with possessing both class A and class B

drugs with the intent to distribute and with conspiracy to

violate the drug law. The defendant made a motion to suppress

the evidence obtained in the search, and a judge of the District

Court allowed the motion based on his conclusion that the

information submitted in support of the search warrant

application was inadequate to establish probable cause. After

obtaining leave from a single justice of the Supreme Judicial

Court, see Mass. R. Crim. P. 15 (a) (2), as appearing in 474

Mass. 1501 (2016), the Commonwealth appealed. We reverse.

Background. Our review of the sufficiency of an

application for a search warrant "begins and ends with the 'four

corners of the affidavit'" supporting it. Commonwealth v.

O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v.

Villella, 39 Mass. App. Ct. 426, 428 (1995). We summarize the

facts recited in the May 23, 2014, affidavit executed by

Detective Daniel Amaral, an experienced New Bedford police

detective assigned to a unit specializing in narcotics

investigations.







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During the week of May 4, 2014, Amaral was told by a

confidential informant (CI) that an individual the CI knew as

"Bryan" was engaged in a "crack" cocaine delivery service. The

CI had been purchasing crack cocaine for over a month, and gave

a physical description of Bryan. As described by the CI, the CI

would call a telephone number to speak to Bryan, after which

Bryan would designate a time and location to meet the CI to

complete the purchase. The CI said that Bryan sometimes arrived

at the purchase location in a gold-colored vehicle with a strap

holding down the trunk, which was driven by a woman.

After consulting with other members of the narcotics

investigation unit, Detective Amaral learned that another

detective in that unit (Detective Sergeant Marc Blouin) had

begun an investigation of an individual named Bryan Simpson

residing at 175 Harwich Street, New Bedford, and had received

five anonymous telephone calls on the narcotics anonymous tips

line within the previous six months. The anonymous tipster

described Simpson's use of a gold-colored vehicle with a strap

holding down the trunk. Blouin informed Amaral that he had

traveled to 175 Harwich Street and observed Simpson and a woman

leave the building at that address and get into a gold-colored

vehicle with a strap holding down the trunk. After checking the

license plate of the vehicle, Blouin learned that it was

registered to the defendant's mother. After searching police







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department records, Amaral discovered an incident report

concerning a domestic disturbance at 175 Harwich Street between

Simpson and the defendant on July 7, 2013, in which the

defendant reported that she had had a verbal argument with

Simpson, whom she described as her boy friend of four years.1

Amaral then arranged, on three separate occasions between

May 4 and May 23, 2014, to have the CI participate in controlled

purchases of crack cocaine from Simpson. On two occasions,

shortly after the CI placed a call to Bryan, detectives watched

Simpson and a woman leave by the front door of 175 Harwich

Street, enter a vehicle parked on the street, and drive directly

to the designated location. There, the CI briefly interacted

with Simpson before the two separated. After both encounters,

the CI provided police with a substance that was later confirmed

to be crack cocaine. After the second meeting, Simpson and the

woman returned immediately to 175 Harwich Street and entered

through the front door. On the occasion of the third controlled

purchase, Simpson was observed leaving 175 Harwich Road alone,

entering a vehicle in the rear of the building, and driving to

1 Amaral's review of board of probation records also disclosed that Simpson had been convicted of possession of class B narcotics and possession of class B narcotics with intent to distribute, and had been arraigned on such charges as assault and battery, armed robbery by means of a knife, and assault with intent to rob.









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the designated location, where he sold crack cocaine to the CI

and then drove in a direction away from Harwich Road. On at

least two other occasions during this period, police observed

Simpson leave his residence and engage briefly with individuals

other than the CI at various locations in what appeared to be

drug transactions.

Detectives also observed Simpson and a woman check the

mailbox for an apartment on the east side of 175 Harwich Street

before using keys to enter through the front door of the

building.

Amaral next determined that the utilities for the third

floor apartment on the east side of 175 Harwich Street had been

established in the name of Michelle Silva on September 17, 2012,

listing a particular telephone number for the customer. Amaral

called the telephone number and, when a woman answered, asked to

speak to "Jillian Silva." The woman on the telephone said

"speaking," whereupon Amaral terminated the call.

In his application, Amaral requested a "no-knock" warrant,

based (among other things) on concern that entrance through the

locked front door of the apartment building before proceeding to

the third-floor apartment unit would present heightened risk







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that evidence could be disposed of or destroyed before police

reached the apartment unit itself.2

Discussion. "The Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights 'require a magistrate to determine that probable cause

exists before issuing a search warrant.'" Commonwealth v.

Escalera, 462 Mass. 636, 641-642 (2012), quoting Commonwealth v.

Byfield, 413 Mass. 426, 428 (1992). "To establish probable

cause, the facts contained in the warrant affidavit, and the

reasonable inferences drawn from them, must be sufficient for

the issuing judge to conclude that the police seek items related

to criminal activity and that the items described 'reasonably

may be expected to be located in the place to be searched at the

time the warrant issues' (citation omitted). Commonwealth v.

Walker, 438 Mass. 246, 249 (2002). The question whether there

was probable cause to issue the search warrant is a question of

law that we review de novo, see Commonwealth v. Tapia, 463 Mass.

721, 725 (2012), in a commonsense and realistic manner."

Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In

conducting our review, we read the warrant affidavit as a whole,

2 Amaral also cited Simpson's "propensity for violence" as a rationale for the no-knock designation, see note 1, supra, and cited the proximity of Harwich Street to Acushnet Avenue, a well-traveled street, to suggest that a "stealth approach" would be difficult.









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without overly parsing or severing it, or subjecting it to

"hypercritical analysis" (citation omitted). Commonwealth v.

Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v.

Anthony, 451 Mass. 59, 68 (2008) ("In dealing with probable

cause . . . we deal with probabilities. These are not technical;

they are the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal technicians,

act" [citation omitted]).

In the present case, the information set forth in Detective

Amaral's affidavit furnished probable cause to believe that

drugs and other implements of the drug trade would be found in

the third-floor apartment on the east side of 175 Harwich

Street. Specifically, police observations of Simpson's

departure from the building at that address and travel directly

to the location of three controlled purchases established a

nexus between the building and the drug-distribution operation

in which Simpson was engaged. See Escalera, 462 Mass. at 645

646; Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 106-109

(2007).

The defendant's contention that the affidavit failed to

provide an adequate connection to the particular apartment unit

within the building is unavailing. Several factors in the

affidavit furnished probable ties between the third-floor

apartment on the east side of the building and Simpson. To







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begin with, a woman who identified herself as Jillian Silva

answered the telephone when Amaral called the number registered

to the account for utilities for that apartment. Silva in turn

was connected to Simpson through a long-term relationship as

recently as ten months before the warrant application was

executed, and Simpson, accompanied by a woman, was observed

checking a mailbox for an apartment on the east side of the

building before entering the building by use of a key to the

building's front door. The vehicle in which Simpson sometimes

traveled to the location of drug sales, including on the

occasion of two controlled purchases, was registered to the

defendant's mother.

To be sure, it is possible that Simpson and the defendant

terminated their long-term relationship during the ten months

following the verbal argument described in the police incident

report of July, 2013, that a woman other than the defendant used

the defendant's mother's vehicle to drive Simpson to and from

the drug sales, and that someone other than the defendant

falsely identified herself as the defendant after answering the

telephone associated with the utilities supplied to the

apartment unit. However, the magistrate is permitted to draw

reasonable inferences in evaluating the facts submitted in an

affidavit in support of a search warrant, and "[a]n inference

drawn from circumstantial evidence 'need only be reasonable and







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possible; it need not be necessary or inescapable.'" Luthy, 69

Mass. App. Ct. at 106, quoting Commonwealth v. Gilbert, 423

Mass. 863, 868 (1996).3

We likewise conclude that the magistrate was justified in

authorizing a no-knock entry by police when executing the

warrant. "The requirement that police knock and announce their

presence is based on common law principles aimed at protecting

privacy, decreasing the potential for violence and preventing

unnecessary damage." Commonwealth v. Perez, 87 Mass. App. Ct.

278, 281-282 (2015). However, "competing interests will justify

abrogating the requirement in individual instances. These are,

principally, avoiding the destruction of evidence and increasing

officer safety." Id. at 282. In the present case, the

affidavit explained in some detail the basis for the detective's

concern that the occupants of the apartment would destroy

evidence unless the officers executing the warrant were allowed

to dispense with the knock-and-announce requirement. In

3 We note that, in his memorandum of decision allowing the defendant's motion to suppress, the motion judge relied in part on a conclusion that the affidavit did not supply sufficient indicia of the CI's reliability to satisfy the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). Our assessment of probable cause established by the facts set forth in the warrant affidavit does not rest to any material extent on the reliability of any assertion by the CI; instead the facts supporting probable cause rest on information resulting from police investigation or observations following the initial tip the police received from the CI.







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particular, the location of the apartment on the third floor,

with a locked entrance door to the building at the ground floor,

furnished heightened concern for the possible destruction of

evidence. See Commonwealth v. Ortega, 441 Mass. 170, 177-178

(2004); Commonwealth v. Jiminez, 438 Mass. 213, 221 (2002).4,5

The order allowing the defendant's motion to

suppress evidence is reversed.