SJC FINDS NEXUS SUFFICIENT TO ESTABLISH PROBABLE CAUSE TO SEARCH TOWNHOUSE

Before a court can issue a warrant of a residence based on criminal activity, it must find there is a relationship (or nexus) between the residence and the criminal activity to the extent that the court would expect evidence to be found at the residence.    

In Commowealth v. Clagon, the SJC reversed both the trial court and the appellate court’s decision to allow the codefendants’ motion to suppress evidence obtained pursuant to a search warrant. The main issue was whether the affidavit submitted by the police in support of their application for the search warrant had established probable cause to believe that there was a nexus between the alleged drug dealing and the premises to be searched, in this case a single-family townhouse in Boston.  The main focus of the affidavit was an effort to establish a “nexus” or relationship between the townhouse and codefendant Gerald’s serial drug sales to a confidential informant in controlled buys arranged by the police at various undefined locations.  One factor that the SJC considered to be suggestive of Gerald’s connection to the townhouse was the fact that  his “father was able to come and go from the premises using a key.”  The Court disagreed with the lower court regarding deficiencies in the affidavit which the motion judge and the Appeals Court had found significant, especially “the absence of various details …, such as the quantity of the substance sold at each controlled purchase, the time of day, and the amount of time it took Gerald to travel from the premises to the sale.”  The court noted:  “We do not think it fatal that the affidavit does not positively identify the premises as Gerald’s personal residence.  Although the nexus requirement is an outgrowth of the special constitutional protection afforded to a person’s home, … it does not follow that the affidavit must establish a suspect’s legal relationship to the premises.  Whether the suspect owns the premises, lives there, or merely conducts business there, the question is whether evidence is likely to be found there.  And, as we have discussed, the affidavit establishes that Gerald was making use of the premises, even if it did not establish ownership or residence.” Ultimately, the Court concluded that, although the case was a “close” one, the affidavit was sufficient to establish probable cause to search the townhouse.

 

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