Commonwealth v. Confoey

By the Court (Cohen, Hanlon & Sullivan, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).

After a jury-waived trial, the defendants, brothers Alan Confoey and Wayne M. Confoey, were convicted of ten counts between them of improper storage of firearms (including large capacity firearms)., They appeal, arguing that their motion to suppress should have been allowed because the affidavit filed in support of the search warrant did not establish a nexus between the target location and the contraband firearms that were the objects of the search. We affirm.

Background. On March 7, 2012, Officer Jeffrey Majewski of the Westport police department applied for a search warrant for Wayne's residence at 363 Robert Street, Westport. The warrant was issued on the same day. It authorized a search for various firearms and ammunition, along with Wayne's recently revoked firearms license. Majewski's affidavit in support of his application recited that, on March 6, 2012, Majewski had been informed by Lieutenant John Bell, the Westport police firearms identification issuing officer, that Wayne "of 363 Robert Street in Westport had not provided the department with valid transfer paperwork for several firearms that were still listed in his name through the Firearms Record Bureau Data Base [FRB database]." The defendants' sole argument is that, even if the affidavit established probable cause to believe that Wayne possessed illegal firearms, the affidavit failed to demonstrate a nexus between the firearms and the location to be searched.

Discussion. "The facts contained in the [search warrant] affidavit, and the reasonable inferences therefrom, must 'demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched.'" Commonwealth v. Tapia, 463 Mass. 721, 725 (2012) (citation omitted). "This probable cause inquiry requires a 'nexus between the items to be seized and the place to be searched.'" Ibid. (citation omitted). However, "[w]hen challenging a search conducted pursuant to a warrant, the defendant has the burden of showing that evidence was obtained illegally. Commonwealth v. Taylor, 383 Mass. 272, 280 (1981)." Commonwealth v. Forbes, 85 Mass. App. Ct. 168, 173 (2014).

We are satisfied that the affidavit provided information to establish probable cause that the firearms were at the target residence. First, as the motion judge noted, from the fact that the officer in charge of the Westport police department licensing authority gave the address to Majewski as Wayne's residence, "the obvious inference is that [his] license to carry firearms was issued to him at 363 Robert Street." See G. L. c. 140, §§ 121, 122A, 131(g). Second, because there were a number of guns, which were durable and of continuing utility to the defendant, it was reasonable to conclude that he stored them at his residence. See Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 827 (2012) ("The items listed in the search warrant, namely firearms, ammunition, and firearm-related items, . . . are all reasonably related to the investigation and constitute evidence of the criminal activity. It is reasonable that [the defendant] would seek to hide some, if not all of the items, at his residence, particularly those items that were 'durable, [and] of continuing utility to [him].' Commonwealth v. James, 424 Mass. 770, 778 [1997]. . . . This was sufficient to allow the magistrate to draw a reasonable inference that the items sought under the warrant could be in [the defendant's] residence").

The affidavit also establishes, as the Commonwealth argues, that police officers were in contact with Wayne at that address over a period of time. In June, 2010, Bell had sent Wayne a letter there, notifying him of his license suspension; it is fair to infer that Wayne received it, as he subsequently appealed to the District Court the police chief's determination to suspend his firearms license. Further, in February, 2012, Westport and Fall River police officers twice were sent to the Robert Street address to speak with Wayne about the firearms still in his possession.

"'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.' Commonwealth v. Kaupp, 453 Mass. 102, 111-112 (2009), quoting Draper v. United States, 358 U.S. 307, 313 (1959), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)." Commonwealth v. Foster, 471 Mass. 236, 242 (2015). Here, a reasonable reading of Majewski's affidavit indicates that the recited facts were sufficient for the issuing magistrate to find probable cause that Wayne was in illegal possession of the firearms listed in the FRB database, and that, due to the number of firearms at issue, it was a fair inference that one or more of the firearms would be located at his residence at 363 Robert Street. We see no error.

Judgments affirmed.

By the Court (Cohen, Hanlon & Sullivan, JJ.),

Clerk Entered: August 25, 2015.