Those facing a Massachusetts Drug Distribution or Trafficking charge often contest the Constitutional basis of the search and seizure as part of the defense to the case.  This was the case in Commonwealth v. Costa, which began as a drug distribution case out of the New Bedford District Court and was decided by the Massachusetts Appeals Court on April 10, 2020.

The Appeals Court found that a search warrant was not based on probable cause as it did not establish the relialbiity of the confidential informant.  In drug distribituion and trafficking offenses, it is very common that the police will obtain a warrant to search a house based on information provided by a confidential informant.  The informant will provide information that results in the police obtaining a warrant.  The Costa case involved this type of investigation by the New Bedford police department where they seek to search a house based on probable cause being established as a result of a controlled drug buy.

I have handled many drug cases where the New Bedford police have used an informant to attempt to get a warrant.

How does the Court determine if there is probable cause to search a house based on a Controlled Buy?  

A controlled buy will provide proable cause for the police to obtain a search warrant if the following conditions are met.

 

1. The police escort or follow the informant to the premises where it is alleged that the illegal activity is occurring and watch the informant.
2. If there are only a few units in the apartment building, it may be sufficient to infer that the informant purchased narcotcis from the target.

 

In Costa, the Appeals Court found that when there is a large number of units, the police have not watched the informant to supervise the buy to provide probable cause. The Appeals Court noted that it expects the following details in the affidavit to support probable cause to search the residence:  the layout of the building, the number of apartments, the location of the defendant’s apartment, the feasibility of observing the informant enter the apartments.

The affidavit did not indicate why surveillance inside the apartment was unreasonable and did not provide corroboration that the CI purchased drugs from the target.  When defending a drug case based on a confidential informant, look at the set up of the house that is the target of the warrant.  Also, defense lawyers should attack the reliability and basis of knowledge of the informant.  To read the decision in Costa you can find it on the Social Law website.

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