The Supreme Judicial Court ruled today Suffolk County prosecutors could use heroin seized from a Forest Hills home as evidence against three men charged with selling it, even though a BPD detective's request for a search warrant for the home wasn't really as detailed as it should have been.
A trial judge and the Massachusetts Appeals Court had both agreed with Reginald Clagon, Anthony Gerald and Gregory Kimble that the drugs should be tossed as evidence because the search-warrant application failed to satisfy requirements that Det. Patrick Byrne had substantial proof the evidence he thought he'd find at 8 Blanvon Rd. was related to specific criminal activity, in this case, drug buys he'd allegedly watched an informant make from one of the three men.
In the words of the appeals court:
As to each buy, Bryne [sic]does not indicate the time Gerald left 8 Blanvon, how much time transpired between leaving the house and the buys, or the quantity of heroin sold at each buy. Bryne also does not indicate how Gerald traveled between 8 Blanvon and the buy locations. Further, Bryne does not identify 8 Blanvon as Gerald's residence, but only that Gerald "is a heroin dealer, who conduct [sic] business from 8 Blanvon." While Bryne does recite that 8 Blanvon "is occupied by and/or in the possession of Anthony Gerald," the only facts to support this conclusion are the observations we have noted. For example, there is no evidence of a tax bill, mailbox label, statement from the building manager, or the like, confirming the affiant's conclusion.
In its ruling today, the SJC - the state's highest court - said it would have liked to see more details in Byrne's affidavit. But it then added:
The motion judge and the Appeals Court noted the absence of various details from the affidavit, 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. While such details likely would have made the affidavit more compelling, they are largely immaterial to the question whether evidence would probably be found at the premises. In particular, however long it took Gerald to travel to the sale, the fact that he did not stop anywhere en route indicates that he had the substance with him when he left the premises and did not obtain it elsewhere on the way. Admittedly, the affidavit does not state whether Gerald walked or drove to and from the sales. This is somewhat more relevant: if he had driven, there would be a possibility that he kept the substance in the car rather than in the premises. But even this would not by itself be fatal to the existence of probable cause. "A warrant application 'need not establish to a certainty that the items to be seized will be found in the specified location, nor exclude any and all possibility that the items might be found elsewhere. The test is probable cause, not certainty.' "