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-288

COMMONWEALTH

vs.

DENNY GERMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with possession with intent to 

distribute a class B substance, cocaine, in violation of G. L. 

c. 94C, § 32A (a). He filed a motion to suppress evidence 

seized pursuant to two search warrants that were executed in 

this case, one for his residence and one for a motor vehicle,

and for a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 

155-156, (1978). The judge allowed the motion to suppress with 

respect to the evidence seized during the search of the vehicle,

but denied it with respect to the search of the residence. The 

judge also denied the defendant's request for a Franks hearing, 

finding an insufficient basis to require one. The defendant 

filed a motion to reconsider, which was denied.
2

Subsequently, the defendant pleaded guilty to the charge

against him, and received a suspended sentence, while reserving 

his appellate rights with regard to the judge's decisions on the 

motion to suppress the evidence seized from the residence, and 

the request for a Franks hearing. See Commonwealth v. Gomez, 

480 Mass. 240, 252 (2018) (permitting conditional guilty plea 

with consent of Commonwealth and court).

The affidavits in support of each of the two warrants were 

written by the same affiant, Detective Stephen Emery of the Lynn 

police department. Each was based entirely on information from 

confidential sources, and each referred to two controlled buys 

that occurred on undisclosed dates and times in the month of 

October 2020. The affidavit in support of the warrant for the 

residence was prepared on October 19, 2020, while the affidavit 

in support of the warrant for the vehicle was prepared on 

October 21, 2020.

1. Motion to suppress. We turn first to the motion to 

suppress the evidence seized from the residence at 1 Chase 

Street, Apartment 1R, Lynn. In determining whether the motion 

to suppress was properly denied, we are limited in examining the 

four corners of the search warrant affidavit. See Commonwealth

v. Canning, 471 Mass. 341, 348 (2015).
3

For a warrant to issue, the affidavit must demonstrate 

probable cause that items related to the criminal activity under 

investigation will be found in the place to be searched at the 

time the search warrant issues. See Commonwealth v. Donahue, 

430 Mass. 710, 711-712 (2000). Because of the heightened 

constitutional protection provided to residences, when 

establishing a nexus between a suspected drug dealer and his 

residence, "police must provide 'particularized information 

based on police surveillance or otherwise, that would permit a 

reasonable inference that the defendant likely kept a supply of 

drugs' in the home." Commonwealth v. Escalera, 462 Mass. 636, 

643 (2012), quoting Commonwealth v. Pina, 453 Mass. 438, 442 

(2009). "[T]here must be specific information in the affidavit 

. . . to provide 'a sufficient nexus between the defendant's 

drug-selling activity and his residence to establish probable 

cause to search the residence.'" Pina, supra at 440-441, 

quoting Commonwealth v. O'Day, 440 Mass. 296, 304 (2003). A

single trip by a defendant directly from his residence to the 

location where he sold drugs to an informant is insufficient to 

provide an adequate nexus between a defendant's criminal 

activity and his residence. Pina, supra at 441, 442.

In his affidavit, the affiant states that "[d]uring the 

month of October 2020," the affiant "spoke with a confidential 
4

source of information," abbreviated in the affidavit as CS, 

which abbreviation we will use as well. The affiant states that 

he knows "this person's name, date of birth, address and cell

phone number. This person has provided information directly to 

this Officer as well as other Officers, and State Troopers."

The affidavit goes on to say, 

"During this initial conversation, the CS stated that the 

CS knew of an unidentified male only known as 'Mike'

offering cocaine for sale in and around Lynn. CS provided 

the following phone number for Mike: [phone number]. CS 

described Mike a [sic] Hispanic male, approximately 5'9["], 

medium build, cornrows down to his neck, light-medium 

skinned. CS also provided intelligence that Mike is 

dealing out of 1 Chase St, Lynn, MA." 

The affidavit then says that "[d]uring the month of October 

2020," a controlled buy of cocaine by the CS was undertaken. 

The CS made contact with Mike via the phone number given by the 

CS, made arrangements to purchase an undisclosed amount of 

cocaine from Mike, and was directed to a location where other 

officers were able to set up surveillance. Surveillance was 

also set up on 1 Chase Street. Sergeant Avery observed a 

Hispanic man matching the description of Mike exit the rear door 

of Apartment 1R of 1 Chase Street and exit the rear of the 

building. The affidavit says that a surveilling officer was 

able to keep sight of Mike as he went from 1 Chase Street 

directly to the CS's location, making no stops or meeting 

anybody else along the way. The CS met with Mike and handed him 
5

money given to him by the police, and in return received "the 

cocaine." "Surveillance was kept on Mike as he made his way 

directly back to 1 Chase St[.] where he was observed to go back 

inside by Sgt[.] Avery and Trooper Soldani."

The affidavit also recounts a second controlled buy 

"[d]uring the month of October 2020." This time, however, 

"Sgt[.] Clemens of [Massachusetts State police] observed a 

Hispanic male matching the description for Mike exit the rear 

door of apartment 1R of 1 Chase St[.] and exit the rear of the 

building." Again, a surveilling officer was able to keep sight 

of Mike as he made his way from 1 Chase Street "directly to the 

CS's location while making no stops or meeting with anybody else 

along the way." Again, the CS met with Mike, handed him money

provided by the police, and in return received cocaine. The CS 

and Mike then went their separate ways. Surveillance was kept 

on Mike as he made his way directly back to 1 Chase Street, 

where he was observed going back inside by Detective Peter 

Panacopoulos.

As described above, a single trip directly from one's 

residence to a place where one sells drugs has been held 

insufficient to support a conclusion that drugs will be found in 

the house. Pina, 453 Mass. at 441, 442. In this case, however, 

the affidavit describes two such controlled buys in which the 
6

defendant traveled directly from the house to the location of 

the sale. We will assume, without deciding, that if the 

magistrate credited the affidavit, this provided probable cause 

to search the defendant's residence.

There is, however, a staleness problem with the information 

in the affidavit. This warrant was sought on October 19. The 

affiant does not say on what day these controlled buys took 

place. Rather, the affiant asserts only that these buys took 

place "during the month of October 2020." There is, therefore, 

ambiguity about the dates of the buys. "The ambiguity . . .

makes it proper to assume that the buy occurred on the most 

remote date described by that language." Commonwealth v. Rice, 

47 Mass. App. Ct. 586, 590 (1999). We must therefore assume 

that the first controlled buy took place on October 1, and, 

although the second buy could have taken place the same day, we

will assume it did not -- although nothing in the affidavit 

actually requires this -- and therefore, that it took place, at 

the earliest, on October 2. This means that we must treat the 

controlled buys as having taken place on two consecutive days, 

and the affidavit application as having been sought seventeen 

days after the second controlled buy.

"Probable cause to search a particular location for 

contraband requires a timely, as well as a substantial, nexus to 
7

the illegal activity." Pina, 453 Mass. at 442. In Pina, 

although the court did not rest on this alone, the court said,

"The lapse of time between th[e] observation and the application 

for the search warrant (three days) raises further concerns."

Id.

There is no bright line for when information like this 

about a residence becomes stale. It depends on the 

circumstances of each case. See Commonwealth v. Atchue, 393 

Mass. 343, 349 (1984). We find some guidance, however, in 

Commonwealth v. Malone, 24 Mass. App. Ct. 70 (1987). In that 

case, a search warrant was sought on April 19, 1985, for an 

apartment of the defendant from which she had been arrested 

selling drugs over a year before. Id. at 71. According to the 

affidavit, "'On or about the 25th to the 29th of March 1985,' an 

informant attempted to buy cocaine at the defendant's 

apartment." Id. The informant was allowed in by a woman who 

said she was the defendant's sister. Id. The informant asked 

about buying cocaine and was told it would be there in a while, 

and while in the apartment, the informant observed a white 

powder, which the woman described as only a cutting agent. Id. 

The court concluded that it was a reasonable inference from the 

sister's statement that drugs would be found in the apartment 

within a short time after the informant's visit. Malone, 24 
8

Mass. App. Ct. at 73. However, the lapse of at least twenty-one 

days between that observation and the date on which the warrant 

was sought meant the affidavit was insufficient to support a 

finding of probable cause on the date the affidavit was 

submitted. Id. at 73-74. We think that the two and one-half 

weeks that passed between the controlled buy and the application 

for the warrant in this case is not meaningfully distinguishable 

from the three weeks at issue in Malone. Consequently, we think 

the information in the affidavit was stale when it was 

submitted, and therefore not sufficient to support the issuance 

of the warrant.

The Commonwealth points out that "[i]f an affidavit recites 

activity indicating protracted or continuous conduct, time is of 

less significance" (citation omitted). Commonwealth v. 

Vynorius, 369 Mass. 17, 25 (1975). There is at least one case 

in which a passage of two weeks was not sufficient to render the 

evidence stale because of continuous conduct. See Commonwealth

v. Cruz, 430 Mass. 838, 843 (2000). But in that case, "the 

affidavit described six controlled purchases of increasing 

amounts of cocaine over a period of four weeks, and also 

asserted that plans were being made to buy more cocaine from the 

defendants in the future." Id. Given that, "[t]he magistrate 

reasonably could have inferred that the defendants were engaged 
9

in ongoing, criminal activity to distribute cocaine." Id. In 

those circumstances, the court said that the affiant's 

information did not "grow stale" in the two weeks since the 

affidavit. Id.

Here, we do not have similar evidence of continuing 

activity. To be sure, according to the affidavit, two 

controlled buys took place from the defendant within the first 

two days of October 2020. But that is all the information we 

have. The affiant had never been inside the apartment, did not 

therefore describe anything about it or the presence of drugs 

within it, nor is there any other evidence from outside of these 

two days of an ongoing drug sale operation.

Consequently, because the nexus to the defendant's 

residence was not timely, we conclude that the search warrant 

should not have issued, and the motion to suppress should have 

been allowed.

2. Motion for a Franks hearing. For the sake of 

completeness, we address the defendant's second argument, that a 

Franks hearing should have been held. If we are incorrect about 

the motion to suppress, we conclude that the defendant was 

nonetheless entitled to a Franks hearing.

Under Franks v. Delaware, 438 U.S. 154, 155-156, (1978), 

"where the defendant makes a substantial preliminary 

showing that a false statement knowingly and intentionally,
10

or with reckless disregard for the truth, was included by 

the affiant in the warrant affidavit, and if the allegedly 

false statement is necessary to the finding of probable 

cause, the Fourth Amendment [to the United States 

Constitution] requires that a hearing be held at the 

defendant's request."

"Intentionally or recklessly omitted material may also form the 

basis for mounting [such] a challenge." Commonwealth v. Long, 

454 Mass. 542, 552 (2009). To invoke Franks, the defendant must 

show that the false statement was necessary to the finding of

probable cause, or that omission negated a finding of probable 

cause.

The defendant's primary argument is based on alleged 

inconsistencies between the search warrant affidavit supplied in 

obtaining the search warrant for the residence, and the 

affidavit submitted two days later in support of the search 

warrant for the vehicle.

The affidavit for the vehicle warrant is virtually 

identical, in its initial portions, to the affidavit in the 

residence case. It states, "During the month of October 2020, 

this Officer spoke with" a confidential source, this time 

referred to as a "confidential reliable source," for which it 

uses the initials "CRS," as we will, but says nothing about 

reliability, instead averring that "reliability can be furnished 

upon request." Identically to the residence affidavit, it then 

reads, "I know this person's name, date of birth, address and 
11

cell phone number. This person has provided information 

directly to this Officer as well as other Officers, and State 

Troopers." It then says,

"During this initial conversation, the CRS stated that the 

CRS knew of an unidentified male only known as 'Mike'

offering cocaine for sale in and around Lynn. CRS provided 

the following phone number for Mike: [same phone number as 

that in the residence affidavit]. CRS described Mike a 

[sic] Hispanic male, approximately 5'9["], light-medium 

skinned. CRS also provided intelligence that Mike is 

dealing out of 1 Chase St[.], Lynn, MA."

The only difference between this and the description of CS in 

the residence affidavit is that CS was said to have included in 

his description of "Mike" the additional information that he was 

"medium build," with "cornrows down to his neck."

The vehicle affidavit describes the setup of a controlled 

buy "[d]uring the month of October 2020" almost identically to 

the way it was described in the residence affidavit, but states 

that "[s]urveillance observed MA REG 2XKM81 being operated by a 

single occupant who appeared to match the description of Mike. 

The CRS went to the MV [motor vehicle], met with Mike, handed 

him the money, and in return received the cocaine. The CRS and

Mike then went their separate ways."

The vehicle affidavit then introduces someone it implies to 

be a second confidential source. It says,

"During the month of October 2020, this Officer spoke with 

a confidential source of information who will be referred 

to as CS. I know this person's name, date of birth, 
12

address and cell phone number. This person has provided 

information directly to this Officer as well as other 

Officers, and State Troopers. During this initial 

conversation, the CS stated that the CS knew of an 

unidentified male only known as 'Mike' offering cocaine for 

sale in and around Lynn. CS provided the following phone 

number for Mike: [same phone number]. CS described Mike a 

[sic] Hispanic male, approximately 5'9["], medium build, 

cornrows down to his neck, light-medium skinned. CS also 

provided intelligence that Mike is dealing out of 1 Chase 

St[.], Lynn, MA."

This paragraph appears to be cut and pasted from the 

residence affidavit. It even includes the same typographical 

error. This supports an inference that this "CS" is the same CS 

named in the residence affidavit.

The affidavits describe identically a controlled buy by CS, 

the second one described in the residence affidavit. But the 

vehicle affidavit has a different description than the residence 

affidavit of what happened after it. The residence affidavit 

says, "Surveillance was kept on Mike as he made his way directly 

back to 1 Chase St[.] where he was observed to go back inside by 

Det[.] Peter Panacopoulos." The vehicle affidavit, in contrast,

says,

"Surveillance was kept on Mike as he stopped at MA Reg 

2XKM81 which was parked and unoccupied. Mike held 

something out and pointed it at the MV as if it was being 

unlocked. He then entered the passenger side of the MV and 

sat down inside. He appeared to manipulate some things in 

the front seat and then after approximately 1 minute he 

exited the MV [and] made his way directly back to 1 Chase 

St[.] where he was observed to go back inside by Det[.]

Peter Panacopoulos."
13

Given that the last clause is identical to what was included in 

the residence affidavit, an inference is supported that this 

controlled buy is the second controlled buy mentioned in the 

residence affidavit.

The differences between these two affidavits raise a 

serious concern. It may be that there were three confidential 

sources and four controlled buys. And the identical passages 

may reflect a desire to avoid details about the confidential 

sources, not that the descriptions are of the same confidential 

source. But it is reasonable to assume that an officer seeking 

a warrant for a search of a residence or a vehicle would include 

in his affidavit all controlled buys made from the suspect. 

Certainly, in seeking a warrant for a residence, one would 

expect all controlled buys in which the defendant went directly 

from the residence to the drug deal to be included.

To begin with, then, the affidavits support an inference 

that the second controlled buy mentioned in each affidavit is 

the same one, and that the defendant did not proceed directly to 

the residence after the drug deal but stopped instead at the 

vehicle. If so, the description in the residence affidavit is 

inaccurate. Further, the omission from the residence affidavit 

of returning to the car, if it describes what actually happened, 

and of the vehicle affidavit's description of the first 
14

controlled buy, in which the defendant arrived and departed in 

his vehicle, may paint a materially misleading picture of the 

role of the residence in the defendant's drug-dealing activity, 

indicating that, during the relevant time period, the defendant 

may not have been selling drugs from his residence.

Indeed, it may be that the two affidavits describe the same 

two controlled buys and that there was only a single 

confidential source. If that were true, then the description of 

the first controlled buy in each affidavit is utterly different 

from the description in the other. The differences in the 

affidavits certainly raise a sufficient issue to have required

an evidentiary hearing under Franks.

There is also additional evidence showing that a Franks

hearing was necessary. In an affidavit filed with the motion, 

and again filed with the motion for reconsideration, counsel 

asserted that he had visited and examined the premises at 1 

Chase Street, Lynn, both interior and exterior, and had had the 

opportunity to examine Apartment 1R, both interior and immediate 

exterior. He asserted that it is physically impossible to see 

through the rear door of 1 Chase Street into the interior of the 

rear hallway to determine that someone has left Apartment 1R, 

unless one has their face pressed up to the beveled glass. 

There is a short distance between the door to Apartment 1R and 
15

this back door with beveled glass, and he asserted that if one 

had one's face pressed against the glass, anyone exiting 

Apartment 1R would see them, and would get to the building's 

rear door before the person looking in had any time to leave or 

hide. This, too, raises a question worthy of an evidentiary 

hearing under Franks.1

Because we think the failure to allow the motion for a 

Franks hearing was in error, were we to conclude that the 

evidence seized during the search of the residence need not be 

suppressed, we would vacate the order denying the Franks

hearing, and remand for proceedings consistent with this 

memorandum and order.

Conclusion. To the extent that the order on the 

defendant's motion denied the motion to suppress evidence seized 

from the residence, it is reversed, and the case is remanded to

1 In support of the motion for reconsideration, the 

defendant submitted photographs of the rear of the building that 

appear to show the impossibility of seeing the exit of Apartment 

1R from outside the rear of the building, except by being 

immediately close to that rear door. He includes those 

photographs in his appendix, but, because the judge was not 

obligated to consider that new evidence on a motion for 

reconsideration, they play no role in our assessment.
16

the Superior Court for further proceedings not inconsistent with 

this memorandum and order. The remainder of the order is 

affirmed.

So ordered.

By the Court (Rubin, Blake & 

Shin, JJ.2),

Clerk

Entered: October 4, 2024.

2 The panelists are listed in order of seniority.