NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-390

COMMONWEALTH

vs.

STEVEN RIOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 24, 2020, officers of the Lawrence Police 

Department responded to the defendant's report of a break-in and 

theft at his home. Based on information they learned during 

their investigation of the break-in, the police sought and 

obtained a warrant to search the defendant's apartment for 

marijuana and evidence of marijuana distribution. As a result 

of the search conducted when the police executed the warrant, 

the defendant was charged in the District Court with 

distribution of marijuana and a series of offenses related to 

the alleged mistreatment of dogs.
2

The defendant successfully moved to suppress the evidence

seized during the search and the Commonwealth appeals from the 

judge's ruling.1 We reverse.

Background. Our review is de novo, see Commonwealth v. 

Long, 454 Mass. 542, 555 (2009), S.C., 476 Mass. 526 (2017), and 

confined to "the four corners of the affidavit." Commonwealth

v. Henley, 488 Mass. 95, 114 (2021). In deciding whether "[t]he 

facts contained in the affidavit, and the reasonable inferences 

therefrom, . . . 'demonstrate probable cause to believe that 

evidence of the crime will be found in the place to be 

searched,'" Commonwealth v. Lowery, 487 Mass. 851, 856 (2021), 

quoting Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), we

consider the search warrant affidavit "as a whole and in a

commonsense and realistic fashion." Commonwealth v. Snow, 486 

Mass. 582, 586 (2021), quoting Commonwealth v. Dorelas, 473 

Mass. 496, 501 (2016).

On November 3, 2020, a search warrant was issued for the 

defendant's apartment based on the strength of an affidavit 

signed by Detective Alexander Ovalles. We summarize the 

affidavit here. Ovalles was a detective in the gang unit and 

had training and experience in identifying and investigating 

1 A single justice of the Supreme Judicial Court allowed the 

Commonwealth's application, pursuant to Mass. R. Crim. P. 15 (a) 

(2), as amended, 476 Mass. 1501 (2017), for leave to pursue an 

interlocutory appeal in the Appeals Court.
3

drug crimes. Shortly after midnight on October 24, 2020, 

Ovalles and other Lawrence police officers responded to the 

defendant's report of a break-in at his apartment. Beginning 

that night and over the next several days, the police spoke with 

the defendant and the defendant's girlfriend (who also lived in 

the apartment) regarding the break-in. In addition, the police 

obtained surveillance video recordings of the exterior of the 

defendant's apartment from the defendant's landlord, who also 

lived in the building. In the affidavit, Ovalles recounted the 

girlfriend's statements to the police that were made during an 

investigatory interview. Specifically, the girlfriend told 

police that she and the defendant had an acquaintance who 

frequently came to the apartment and smoked marijuana with them.

She stated that on October 23, 2020, the day of the break-in, 

the defendant purchased "weed" from the acquaintance,2 and that 

shortly thereafter, the acquaintance and the defendant argued 

about the defendant being "short on money they had agreed for 

the . . . [drug] transactions." Later that day, the defendant 

and his girlfriend left the apartment for a few hours. When 

they returned, they found that the apartment had been 

"ransacked[]."

2 As we discuss, infra, this statement by the girlfriend was 

the result of an agreed-upon redaction. We consider the 

affidavit as redacted.
4

The defendant reported the crime to the police shortly 

after midnight on October 24, 2020; he gave the police 

investigators access to his apartment when they arrived. The 

defendant initially told the police the only things missing from 

the apartment were two puppies3; before the police left the 

apartment, the defendant added that he was also missing $5,000 

in cash that he had kept in a drawer in his bedroom. 

Surveillance video of the apartment from October 24, 2020, 

showed that the defendant was underreporting the theft -- the 

video showed four men entering the defendant's apartment through 

a window, then leaving minutes later wearing "full" backpacks

and carrying four boxes, a suitcase, and a "[ten]-gallon trash 

container full of stolen materials." Additionally, the video 

showed one of the intruders entering with a long object 

concealed under a blanket and leaving with what appeared to be a 

rifle in his hands.4

The defendant's girlfriend watched the surveillance video 

and identified one of the intruders as the acquaintance who had 

argued with the defendant earlier that day. She also told the 

3 As we note, infra, the defendant's girlfriend mentioned 

only one stolen "dog"; the difference is not significant to our 

analysis.

4 The police located a live round of rifle ammunition on top 

of the defendant's couch. The defendant denied that the round 

was his.
5

police the items stolen during the break-in included not only a

dog and the cash described by the defendant, but also "weed."5

Four days after the break-in, the police returned to the 

defendant's apartment. The defendant opened the door and, upon 

seeing the police, immediately closed it again. Even with the 

apartment door closed, the police smelled "an extremely strong 

odor of unburnt marijuana" emanating from inside the apartment.

The defendant's resident landlord provided the surveillance 

video described above. In addition, in his affidavit, Ovalles 

documented the landlord's repeated calls to the Street Narcotics 

Enforcement Unit and the Drug Hotline in the two weeks preceding 

the break-in. The affidavit recounted "a substantial amount of 

calls" in which the landlord had complained repeatedly to the 

police about "heavy" foot traffic to and from the defendant's 

apartment. The landlord reported that individuals would arrive 

at the apartment and then leave "within minutes," sometimes 

carrying bags they had not had when they arrived. The landlord 

"indicated this [was] a nonstop issue at the household." 

Ovalles averred that, based on his experience and training, a 

drug dealer selling drugs from their home experiences 

"significant . . . foot traffic" to and from the residence. 

Ovalles averred that the day before he signed the affidavit in 

5 And "clothing."
6

support of the search warrant, the landlord had contacted the 

police "Drug Hotline . . . multiple times, again advising that 

there were multiple vehicles parked outside his residence, [and 

that the occupants of the vehicles] entered [the defendant's] 

apartment and left within minutes." The landlord reported that 

he was "certain [the defendant] [wa]s distributing marijuana on 

a daily basis."

According to the affidavit, the defendant belonged to a 

gang known to be involved in criminal activity, including 

narcotics distribution. He also had a prior conviction for 

possession with intent to distribute marijuana.6

Discussion. 1. The affidavit's reliability. The 

defendant's challenge to the reliability of information provided 

by the defendant's girlfriend and the defendant's landlord is 

not persuasive. "When hearsay is relied upon to supply probable 

cause, under art. 14 of the Massachusetts Declaration of Rights, 

we employ the Aguilar-Spinelli standard to test its 

reliability." Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 232 

(2006), citing Spinelli v. United States, 393 U.S. 410, 415

(1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964). This 

standard requires that an affidavit contain information about 

the informant's (1) basis of knowledge, and (2) veracity or 

6 The affidavit included a 2015 docket number associated 

with that conviction, but no other details about the case.
7

reliability. See Zorn, supra. Here, the basis of knowledge 

prong is satisfied for both the girlfriend and the landlord 

because the statements included in the affidavit are based on

their own first-hand observations (or reasonable inferences 

drawn from those observations). See id. at 233. The veracity 

prong is also satisfied because both the girlfriend and the

landlord were known by name and address to the police. See 

Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992), quoting 

Commonwealth v. Atchue, 393 Mass. 343, 347 (1984) ("The 

identification of [an] informant to the police strengthen[s] his 

or her credibility and 'carrie[s] with it indicia of reliability 

of the informant'").

The defendant's attempt to resurrect a Franks challenge,

see Franks v. Delaware, 438 U.S. 154, 171 (1978) (describing 

procedure for challenging search warrant based on "deliberate 

falsity or reckless disregard [for the truth]"), to Ovalles's 

affidavit as part of this appeal is unavailing. The defendant

first raised the issue through a motion for a Franks hearing in 

the trial court. At the preliminary hearing on the Franks

motion, the defendant argued that Ovalles's affidavit 

misrepresented the police interview with the defendant's 

girlfriend. The affidavit stated that she told police that the 

defendant and the acquaintance had argued about buying "[two]

pounds of marijuana," but the defendant contended that a 
8

recording of the interview established that the girlfriend told 

the police that the defendant bought "weed" from the 

acquaintance and made no reference to the quantity that the 

defendant bought. However, the defendant withdrew the Franks

motion in open court on the preliminary hearing date in exchange 

for the prosecutor's agreement to excise the words "[two] pounds 

of marijuana" from Ovalles's affidavit and to replace them with 

the word "weed."7 The preliminary hearing did not go forward;

consequently, counter to the representations in the defendant's 

brief, there was no determination that Ovalles "lied in his 

search warrant."8 We do not consider the argument further. Cf.

Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).

7 As presented to the clerk-magistrate, Ovalles's affidavit 

included the following sentence as part of his account of the 

girlfriend's interview with the police: "Detectives were 

informed that [the defendant] had purchased (2) pounds of 

marijuana from [the acquaintance], but [the acquaintance] had 

indicated [the defendant] was short on money they had agreed for 

the arranged narcotics transactions." On the hearing date, 

however, defense counsel "agreed to forgo [the] . . . 

preliminary hearing" required under Franks in exchange for the 

prosecutor's agreement to substitute the word "weed" for the 

words, "(2) pounds of marijuana."

8 There is thus no proper basis for appellate counsel's 

repeated statements to that effect in the defendant's appellate 

brief. Likewise, appellate counsel's representation that "[t]he 

Commonwealth conceded (at a [Franks] hearing) that Ovalles 

deliberately lied in his search warrant affidavit and agreed to 

purge the untruth from the affidavit" is not supported by the 

record. We also need not address the argument that Ovalles 

should be charged with perjury.
9

2. Probable cause. Accepting the information in the 

affidavit as reliable, and conducting our probable cause 

analysis focused on "the factual and practical considerations of 

everyday life on which reasonable and prudent [people], not 

legal technicians, act," Commonwealth v. Hason, 387 Mass. 169, 

174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 

(1949), we readily discern probable cause to search the 

defendant's apartment for marijuana and evidence of marijuana 

distribution.

We are satisfied that the affidavit established probable 

cause to believe that the defendant possessed more than the ten 

ounces of marijuana permitted under G. L. c. 94G, § 7 (a) (2).9 

From the defendant's girlfriend's account of the defendant's 

relationship with the acquaintance and the circumstances of the 

October 23, 2020, break-in, it is evident that the defendant 

bought marijuana from the acquaintance on October 23, 2020, and 

on prior occasions. While it is possible, as the defendant 

argues, that the defendant's purchases were exclusively for 

personal use and that he possessed only the amounts permitted by 

G. L. c. 94G, § 7 (a) (2), that is not the inference we think 

reasonable in this case. See Snow, 486 Mass. at 586 (2021), 

9 We assume without deciding that the defendant was at least 

twenty-one years old at the times relevant here. See G. L. 

c. 94G, § 7 (a).
10

citing Dorelas, 473 Mass. at 501. The girlfriend told the 

police that the acquaintance and the defendant argued on the

afternoon of the break-in over the defendant's failure to pay in 

full for the marijuana the acquaintance sold to him, and she 

identified the acquaintance as one of the men caught on 

surveillance video robbing the apartment later that night. We

think it reasonable to conclude that the acquaintance intruded 

into the defendant's home to recover the overdue payment, the 

marijuana for which payment was due, or both. Even taken alone, 

the acquaintance's willingness to take the risks associated with 

breaking and entering into someone's home, see, e.g., G. L. 

c. 266, § 16 (penalty for breaking and entering at night up to 

twenty-years imprisonment), indicates that the value of the 

marijuana at issue was high. We also consider, however, the

rifle-carrying intruders' leaving ammunition behind where the 

defendant would be likely to find it as an implied threat of 

future violence, which suggests that the money owed was not 

trivial.

We draw an additional set of inferences from Ovalles's 

description of the defendant's behavior at and around the time 

of the break-in. For example, the defendant did not report, as 

the girlfriend did, that the stolen property included "weed." 

He likewise failed to mention that the stolen property was 

enough to fill the backpacks, boxes, and other containers 
11

carried out by the four intruders, suggesting that he did not 

want the police to know what property the intruders removed from 

his apartment. We infer from these omissions that the defendant 

was trying to conceal his marijuana possession from the police. 

We consider this as evidence of the defendant's consciousness of 

guilt. See Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 640

(2003) (reasonable to infer consciousness of guilt from 

"defendant's statements to the police, and the omissions 

therefrom"). We also think it is reasonable to infer that the 

defendant attempted to minimize the officers' ability to smell 

the strong odor of unburned marijuana coming from his apartment 

when the police were there four days after the break-in, which

bolsters our conclusion that the amount of marijuana in the 

defendant's possession was more than the law allowed.10 

Together, Ovalles's averments permit a reasonable inference --

and one that we draw -- that the defendant possessed more 

marijuana than the amount permitted under G. L. c. 94G, § 7 (a).

As to distribution, the landlord's account of the heavy 

foot traffic to and from the defendant's apartment, viewed 

through the lens of Ovalles's training and experience, was 

consistent with distribution of drugs from that apartment. Cf. 

10 We do not suggest that the odor itself or the strength of 

that odor provided probable cause to believe that the defendant 

possessed a criminal amount of marijuana. See Commonwealth v. 

Overmyer, 469 Mass. 16, 22 (2014).
12

Commonwealth v. Hill, 51 Mass. App. Ct. 598, 607 (2001) 

("minimal foot traffic" insufficient to establish existence of 

drug distribution from given location). The same is true of the 

defendant's possession of a large amount of cash in his bedroom 

drawer. See Pena v. Commonwealth, 426 Mass. 1015, 1017 (1998) 

(petitioner's arrest "with a large amount of cash on his person" 

evidence of defendant's "direct participation in . . . drug 

distribution"). Considered along with the information we have 

already discussed suggesting that the defendant possessed more 

than the amount of marijuana permitted for personal use under 

G. L. c. 94G, § 7 (a), we are satisfied that the affidavit 

established probable cause to believe that the defendant was 

engaged in distributing marijuana.11

Finally, even if we were to conclude that the affidavit 

failed to establish probable cause that the defendant possessed 

more than ten ounces of marijuana at any time relevant to our 

analysis, Ovalles's affidavit established probable cause to 

11 Based on the lack of any detail about the defendant's 

prior conviction for marijuana distribution, we give the fact of 

that conviction no weight. Cf. Commonwealth v. Allen, 406 Mass. 

575, 579 (1990), quoting Commonwealth v. Germain, 396 Mass. 413, 

418 n.7 (1985) (defendant's criminal history relevant to 

probable cause determination "only if the history is 

sufficiently recent and similar to the crime charged to 

demonstrate that 'the defendant was not averse' to committing 

such a crime"). We likewise do not consider the defendant's 

gang membership in our calculus as the affidavit did not provide 

any detail of a nexus between the gang and the defendant's drug 

distribution.
13

believe that the defendant was distributing marijuana from his 

apartment. Whatever the defendant's ability to possess 

marijuana legally, he was not permitted to sell it, see G. L. 

c. 94C, § 32C, and we see no reasonable argument that the 

defendant was giving the marijuana away for free. Accordingly, 

the affidavit was sufficient to defeat the motion to suppress.

Order allowing motion to 

suppress reversed.

By the Court (Meade, Neyman & 

Hand, JJ.12),

Assistant Clerk

Entered: May 10, 2024.

12 The panelists are listed in order of seniority.