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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
3

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.