Search Warrant Analysis:  Nexus and Curtilage

In 2009, the Massachusetts Supreme Court decided the case of Commonwealth v. Pina.  In so doing, the Court analyzed the issue of nexus and what would substantiate a probable cause analysis in order to uphold the probable cause standard for issuance of a search warrant.  In that case, the Court stated that when the place to be searched is a residence, “there must be specific information in the affidavit, and reasonable inferences a magistrate may draw, to provide ‘a sufficient nexus between the defendant’s drug-selling activity and [his/her] residence to establish probable cause to search.”  The Court further stated that although a single observation of the suspect leaving his/her home would be insufficient to establish a nexus to that location, when coupled with other information it may be sufficient.

Two recent 2012 decisions, the Massachusetts Supreme Court in Commonwealth v. Escalera and Commonwealth v. Tapia, again addressed the issues above – Nexus and Curtilage in relation to a search warrant analysis.  In so doing, the cases provide more guidance for interpreting the “particularized information” as referenced in Pina, required to establish a nexus to the target location.  Some examples of particularized information include statements from credible informants; phone number used in controlled buy in relation to other non-criminal manners (utility bill) and independent police corroboration of mode of delivery.  While the Courts still support the fact that nexus is not established where police observe a suspect leaving his/her residence for a controlled sale and no other information and corroboration of only “innocent facts” described by informant would be insufficient, there is a bulk of information that can be utilized to support a weaker nexus scenario.  A careful review of any search warrant needs to be made based upon the specifics of that factual scenario.

The Escalera case also delved into the issue of curtilage, or what area to which the Fourth Amendment protections extend and the area where police may search pursuant to a warrant.  The United States Supreme Court considers four factors in establishing curtilage – (1) proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people.  In the Escalera case, the basement of the apartment was considered to be within the curtilage for purposes of the search warrant due to the limited access by the tenant or only those that are in possession of the property.

Again, each search warrant should be considered in relation to the specific facts surrounding that particularized investigation.  Beyond the question of nexus or curtilage, the warrant must provide sufficient probable cause that any confidential informant had a basis of knowledge surrounding the illegal activity and exhibited both reliability and veracity in respect to that particular investigation.  In sum the warrant must show that there was enough probable cause to support the person and/or area to be searched.

If you are facing charges stemming from the execution of a search warrant and need an Experience Criminal Trial Attorney to represent you, please contact Criminal Lawyer Kristen F. Bonavita (978) 376-6746 for a free consultation.  As a former Suffolk County Assistant District Attorney in the Narcotics Division, she has both the experience and expertise to provide the defense you need for this or any other Drug Crime.