COMMONWEALTH vs. JOSHUA G. STEGEMANN.

LAURENCE, J. On September 13, 2001, Pittsfield police officers executed a search warrant at the 8 Oak Street apartment of the defendant, Joshua Stegemann. They found no drugs but seized cash in excess of $21,000, as well as a brown leather jacket that Stegemann had received as payment for cocaine at a controlled buy on September 7, 2001. They also discovered several bags of cocaine and "crack" cocaine (totaling over thirty-three grams)

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hidden in the building's cellar (the door to which was unlocked by a key taken from Stegemann when he was arrested shortly before the search). [Note 1] That same day, police executed a search warrant at the residence of Stegemann's eventual codefendant, Franklin LaMountain, on South Mountain Road. Police there found, among other things, a small amount (.21 grams) of loose crack cocaine, a bag of marijuana, a large quantity of drug-related paraphernalia, [Note 2] and a significant sum of cash.

Based on the evidence seized at his residence, as well as the evidence of Stegemann's September 7, 2001, sale of crack cocaine to a police informant in the presence of an undercover police officer, the defendant was indicted on one count of trafficking in cocaine (based on the drugs found in his cellar), one count of distribution of cocaine (based on the September 7 transaction), one count of possession of cocaine with intent to distribute (also based on the September 7 incident), three counts of school zone violation (related to each of the above-mentioned charges), one count of conspiracy to traffick in cocaine (with LaMountain), and one count of possession of a Class E substance, steroids.

Stegemann filed a pretrial motion to suppress the evidence seized on September 13 from his person, his apartment, and the cellar, which was denied on October 31, 2002. The Commonwealth's motion for joinder of Stegemann's case with that of LaMountain was allowed over the defendant's opposition. Subsequent to the allowance of the motion for joinder, but prior to Stegemann's trial, LaMountain pleaded guilty to the substantive charges against him. [Note 3] After a five-day jury trial, Stegemann was convicted on July 28, 2003, of all seven counts that were tried to the jury. [Note 4]

Stegemann here argues that (1) the trial judge erred in denying

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his motion to suppress because the police lacked probable cause to search his residence, there being no nexus between the alleged illegal activity and his residence [Note 5]; and (2) the judge also erred in denying his motion for a mistrial after the judge had unfairly prejudiced him by joining the substantive claims against him with those against LaMountain, thereby permitting the admission of evidence seized from LaMountain's residence in the case against Stegemann.

Background. 1. The motion to suppress. As always, we confine our review of the probable cause issue to the facts gleaned from the "four corners of the affidavit" supporting the warrant application for Stegemann's residence. Commonwealth v. O'Day, 440 Mass. 296 , 297 (2003). That affidavit, dated September 13, 2001, by Pittsfield Detective Glenn Decker, set forth information garnered from several sources, including an unnamed reliable confidential informant; Kelly Carnute, an identified police informant and cocaine customer of Stegemann; and a controlled buy from Stegemann that occurred at Carnute's residence.

The confidential informant (whose past information had led to at least ten convictions for drug-related offenses) reported to Decker that, on or about June 30, 2001, while in North Adams with friends, the informant witnessed a friend meet with and purchase crack cocaine from Stegemann. [Note 6] The informant "engaged in conversation with Stegemann and the friend about

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the sale . . . [and] also witnessed Stegemann conduct a second purchase [sic] with a white male." The informant mentioned that Stegemann drove to the location of the sales in a "green Jeep Cherokee type vehicle." [Note 7]

Kelly Carnute was an admitted crack cocaine addict who supported her habit by shoplifting, by lending her car to drug dealers, and by allowing them, at times, the use of her apartment to "cook" crack cocaine (i.e., to process powder cocaine into solid crack pieces). On August 28, 2001, Carnute was arrested by Pittsfield police for shoplifting. After being advised of her Miranda rights, Carnute requested to speak with Decker, whom she had known for many years. On September 6, 2001, Carnute met with Decker and other officers and gave a detailed statement regarding Stegemann. She reported that Stegemann and his partner, LaMountain, were her current crack cocaine suppliers. [Note 8] She had known Stegemann for approximately four years. He began supplying Carnute with cocaine one year prior to his March, 1998, arrest for trafficking in cocaine. [Note 9] During that year, Carnute permitted Stegemann to cook crack cocaine in her apartment. Shortly after his early release from prison in March, 2001, Stegemann resumed supplying Carnute with crack cocaine, telling her that "he needed crack cocaine customers." [Note 10] He also gave Carnute's oldest daughter approximately two pounds of marijuana to sell. On another occasion he stored approximately four ounces of cocaine in the daughter's apartment.

The affidavit particularly recounted that:

"Carnute buys or receives cocaine from Stegemann or LaMountain or both on almost a daily basis for the past several months. . . . On many occasions Carnute will place a crack order with Stegemann and LaMountain will

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later arrive at her apartment and complete the sale. On many occasions LaMountain told Carnute that he had to go to his house before making his delivery to her. On another occasion Stegemann was in the process of cooking a large quantity of cocaine in his apartment on Oak Street when his parole officer arrived . . . [but he] never discovered what Stegemann was doing . . . ."

Both Stegemann and LaMountain would request that Carnute shoplift specific items to exchange with them for crack cocaine. [Note 11] Recently, Stegemann had asked Carnute to steal a certain brown leather jacket from a T.J. Maxx store, but she had not attempted to shoplift the jacket because it had a security tag attached to it. Carnute also told police that Stegemann and LaMountain drove rental cars to deliver the cocaine and that they utilized telephones and pagers to conduct their business.

On September 7, 2001, Carnute met with undercover police officer Patricia Hill [Note 12] of the Greenfield police department in order to assist the police in arranging a controlled buy from Stegemann. [Note 13] Hill and Carnute went to T.J. Maxx to purchase the brown leather jacket that Stegemann had desired. They then drove to Carnute's residence at 48 Hamlin Street, Pittsfield, where Carnute paged Stegemann in Hill's presence. Shortly thereafter, when Stegemann returned the call, Carnute informed him that "she and a friend [had] stole[n] the jacket for him." Stegemann responded that he was in "North Adams and would be at her [Carnute's] apartment as soon as he could." Upon Stegemann's arrival, Carnute introduced Hill as an old friend. "During their conversations Stegemann told them how busy he had been that day and commented that he did not have a chance to count his money." Stegemann then removed a large sum of cash from his pocket, which Carnute estimated to be at least $5,000. Carnute informed Stegemann that Hill knew how to remove security tags from clothing and had assisted her in

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shoplifting the jacket from T.J. Maxx. Stegemann expressed his approval, and the three ate dinner together.

After dinner, Hill inquired whether she could continue to steal items for Stegemann in exchange for cocaine, to which he affirmatively responded. Carnute asked Stegemann for one hundred dollars' worth of cocaine in exchange for the brown leather jacket that she had supposedly stolen for him. He offered instead to forgive a $120 debt Carnute owed to LaMountain for cocaine, but Carnute replied that she "wanted to keep the deals separate." Stegemann agreed and retrieved from the pocket of his pants a bag of crack cocaine and a bag of powder cocaine. The bag of crack cocaine contained at least ten individually packaged pieces of crack. Stegemann left three of the packages of crack cocaine on the kitchen table for Carnute and Hill and returned the remaining bags to his pocket. Police surveillants subsequently observed the vehicle Stegemann had used to travel to Carnute's apartment parked in front of his 8 Oak Street residence soon after his sale to Carnute and Hill.

On September 11, 2001, Carnute reported to Decker that both Stegemann and LaMountain had come to her apartment on the evening of September 7, 2001, and that on September 8, 2001, LaMountain again came to her apartment and supplied her with fifty dollars' worth of crack cocaine.

Based on the foregoing information, Decker concluded that "probable cause exists" to believe that Stegemann and LaMountain "are powder and crack cocaine dealers working together in Berkshire County." He summarized the highlights of his investigation as follows:

"That the men [Stegemann and LaMountain] deliver cocaine to their customers utilizing rental vehicles. That the men have delivered cocaine, either individually or together, to Carnute on almost a daily basis since shortly after Stegemann's release from prison . . . . LaMountain himself has told Carnute on several occasions that he had to go to his house just prior to cocaine sales to her . . . . At least Stegemann also conducts business in North Adams, Ma. Stegemann cooks powder cocaine into crack cocaine that is then sold by the men. The men exchange their product for either cash or stolen goods."

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2. The joinder. On March 12, 2003, a motion judge conducted a hearing on the Commonwealth's motion for joinder of the trial of the indictments against Stegemann and LaMountain [Note 14] under a "co-venturer" theory, on the ground that evidence would be introduced at trial, admissible against both defendants, from several witnesses who would testify to purchasing drugs from the two defendants, both separately and together, over a period of six months prior to the September 7, 2001, controlled buy. Additionally, Carnute would testify that Stegemann offered to "trade off" the debt she owed to LaMountain in exchange for the stolen leather jacket, supporting their association as joint venturers.

On March 21, 2003, the motion judge allowed joinder of the substantive charges against Stegemann and LaMountain, [Note 15] but left open the possibility that the trial judge could revisit the issue. In so ruling, the judge stated,

"What complicates matters, at least as I see it, is that the instant offenses charge the [d]efendants individually with separate controlled substance offenses. Yet the evidence of each defendant's intent to distribute on the dates in question could be proven by his previous participation in a joint venture to do so. I emphasize 'could,' because, as noted at the outset of this decision, the Commonwealth's proffer was far from detailed, and hence, once examined more carefully, might fail admissibility test for more than one reason."

Subsequent to the allowance of the motion for joinder, but prior to Stegemann's trial, LaMountain pleaded guilty to his substantive charges. After the Commonwealth's opening statement, which mentioned the evidence seized from LaMountain's residence, Stegemann's counsel moved for a mistrial. The judge denied the motion, and defense counsel asserted a continuing objection to the use of such evidence against Stegemann. Stegemann

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here argues that the Commonwealth should have been precluded from proceeding on the basis of such a joint venture strategy at trial, in light of the fact that it refrained from requesting the judge to give a joint venture instruction to the jury. [Note 16]

Discussion. 1. The motion to suppress. Stegemann argues that the affidavit in support of the application for the warrant did not establish probable cause for the search of his residence. Specifically, he contends that no witness mentioned in the affidavit personally observed any drugs or drug-related activity at his apartment, and that the only reasonable inference to be drawn from the affidavit is that he stored his drugs and conducted his business at locations other than his home.

In evaluating his argument, "our inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit.' " Commonwealth v. O'Day, 440 Mass. at 297, quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426 , 428 (1995). The affidavit in its entirety must present a "substantial basis" to conclude that drugs and drug paraphernalia will be found in the defendant's residence. Commonwealth v. Donahue, 430 Mass. 710 , 715 (2000). We are constrained to agree with Stegemann that the Commonwealth's affidavit failed to present such a substantial basis or to permit a determination that drugs and related paraphernalia and records would probably be located at Stegemann's residence. In short, probable cause did not exist for the issuance of the warrant for the search of Stegemann's apartment.

"In order to establish probable cause, an affidavit must contain sufficient information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that the items reasonably may be expected to be located in the place to be searched at the time the warrant issues." Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664 , 667 (2000). "Strong reason to suspect [that contraband will be found there] is not adequate." Commonwealth v. Upton,

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394 Mass. 363 , 370 (1985). Commonwealth v. Jean-Charles, 398 Mass. 752 , 757 (1986). "[E]stablishment of probable cause to believe that 'a person is guilty of a crime does not necessarily constitute probable cause to search the person's residence.' " [Note 17] Commonwealth v. Olivares, 30 Mass. App. Ct. 596 , 600 (1991), quoting from Commonwealth v. Cinelli, 389 Mass. 197 , 213, cert. denied, 464 U.S. 860 (1983). However, "[t]he connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, the nature of the items, the suspect's opportunity to conceal items, and inferences as to where the items are likely to be hidden." Ibid., citing Commonwealth v. Cinelli, supra at 213. See Commonwealth v. Wright, 15 Mass. App. Ct. 245 , 250-251 (1983).

While Decker's affidavit provided more than ample probable cause to have arrested Stegemann for ongoing drug dealing activity, it did not contain sufficiently particularized information connecting Stegemann's apartment to his illegal drug activities, other than the fact that he resided at those premises. Based on the affidavit, Stegemann and LaMountain could certainly be deemed joint venturers in distributing and trafficking in cocaine, utilizing the usual implements of the trade (cellular telephones, pagers, rental cars, etc.) to conduct their business. Carnute bought or received cocaine from Stegemann, LaMountain, or both on a daily basis for several months prior to the search. On many occasions, when Carnute placed an order for cocaine with Stegemann, LaMountain would appear at her residence to

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consummate the transaction. On many other occasions, "LaMountain himself . . . told Carnute that he had to go to his [i.e., LaMountain's] house just prior to [making] cocaine sales to her" (emphasis added).

The affidavit is nonetheless devoid of reliably specific information linking Stegemann's residence to any of the described drug dealing activity. Instead, the affidavit merely reflects Stegemann consummating drug transactions in North Adams [Note 18] or at his customers' residences (as evidenced by the controlled buy and all other purchases mentioned by Carnute taking place at her apartment). The only rational inferences one can draw from the facts recited in the affidavit are that the drugs were stored, and perhaps prepared, [Note 19] at either LaMountain's or clients' residences, or in Stegemann's vehicle. [Note 20]

The Commonwealth advances two unpersuasive arguments in an effort to salvage its search and seizure. First, it claims probable

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cause to search Stegemann's residence existed because, as set forth in the affidavit, police surveillance "has shown Stegemann to drive directly to his 8 Oak Street apartment moments after his sale to Carnute and Officer Hill." The fact that Stegemann stopped at his residence -- once, and then only after making a sale -- fails logically to support any reasonable inferences justifying the issuance of a warrant to search that residence on the theory that his drug stash was probably there. Compare Commonwealth v. Smith, 57 Mass. App. Ct. 907 , 908 (2003) (police observation of defendant driving one day from home to a drug sale and, on another occasion, to home after a drug sale was, without more, insufficient to link the defendant's residence to drug activity). Contrast Commonwealth v. O'Day, 440 Mass. at 302-304 (police surveillance showed defendant going directly to drug sales from his residence); Commonwealth v. Eller, 66 Mass. App. Ct. 564 , 570-571 (2006) (same); Commonwealth v. Gallagher, ante 56, 59-60 (2007) (same). [Note 21]

The Commonwealth also repeatedly asserts the significance of a single fact: that on one occasion Stegemann "was in the process of cooking a large quantity of cocaine in his apartment on Oak Street." The affidavit does not, however, indicate whether Stegemann "cooked" cocaine on that occasion for distribution or for his personal consumption. More significantly, it fails to state when he allegedly cooked the cocaine -- it could have been as long as five months earlier. See Sgro v. United States, 287 U.S. 206, 210-211 (1932) (facts supporting probable cause cannot be stale and must be "closely related to the time of the issue of the warrant"). See also Commonwealth v. Reddington, 395 Mass. 315 , 322-323 (1985) (six month old tip about once seeing drugs in defendant's house stale and insufficient to establish probable cause).

The affidavit further fails to explain how Carnute knew of this "cooking" incident -- whether she observed it personally

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or whether Stegemann or someone else subsequently mentioned it to her. [Note 22] The information that Stegemann allegedly once cooked crack in his apartment at some undetermined time simply could not be deemed sufficiently reliable to support a probable cause finding to search that apartment.

Thus, while the affidavit clearly illustrates Stegemann's ongoing drug dealing, it does not come close to establishing a probable link between his residence and his drug enterprise. In particular, nothing in the affidavit suggests that drugs would be found in Stegemann's apartment six days after the controlled buy that took place at Carnute's residence, rather than being stashed in his car, or at LaMountain's residence, or at the residence of one of his other customers. The instant circumstances are distinguishable from the cases in which police were able to corroborate their suspicions that the defendant stored drugs in his residence. See, e.g., Commonwealth v. O'Day, 440 Mass. at 302-304 (police conducted surveillance of defendant's residence and observed frequent brief visits to defendant's residence and defendant making drug deliveries from his residence); Commonwealth v. Singer, 29 Mass. App. Ct. 708 , 714-715 (1991) (police corroboration through surveillance observing drug users visiting defendant's residences sufficient for probable cause). The present case is, rather, similar to those which "lack any detail linking the defendant's residence to drug activity: Commonwealth v. Gauthier, 425 Mass. 37 , 40 (1997) (only information regarding defendant's home was that known drug dealer entered and departed residence); Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366 , 370 (2001) (nothing to explain why drugs would be at place searched other than place was presumed to be residence of defendant, who three days before used heroin at another location); Commonwealth v.

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Laughlin, 40 Mass. App. Ct. 926 , 927 (1996) (no evidence in affidavit other than defendant was drug dealer who lived at residence searched) . . . . [See also] Commonwealth v. Smith, 57 Mass. App. Ct. 907 , 908 (2003) (police observations of defendant driving one day from home to drug sale and, on another occasion, to home after drug sale [insufficient] without more); Commonwealth v. Olivares, 30 Mass. App. Ct. 596 (1991) (no specific information in affidavit tying defendant's residence to illegal drug transactions, other than that he lived at those premises)." Commonwealth v. O'Day, 440 Mass. at 304.

Consequently, the police lacked probable cause to search Stegemann's residence, and his motion to suppress the evidence seized therefrom on September 13, 2001, should have been allowed. The prosecutor's lack of that evidence requires reversal of Stegemann's trafficking conviction, the associated school zone conviction, and the conviction for possessing steroids. The failure of the affidavit and subsequent search does not, however, affect the validity of his convictions arising from the September 7, 2001, controlled buy in Carnute's apartment, as discussed in the following section.

2. Denial of motion for mistrial. Stegemann argues that the trial judge erred in denying his motion for a mistrial (made after the prosecutor delivered his opening statement to the jury) on the ground that the judge thereby compounded his earlier error in allowing the joinder of his case for trial with that of his codefendant, LaMountain (who had pleaded guilty just before Stegemann's trial). His theory is that the purpose of the prosecutor's mentioning the Commonwealth's intended introduction of evidence seized from LaMountain's residence on September 13, 2001 -- during a search authorized by the same warrant we have above found wanting against Stegemann but which was not challenged by LaMountain -- was solely to prejudice the jury against Stegemann, since the LaMountain evidence was (he contends) unnecessary to the Commonwealth's case against him.

We reject Stegemann's contention for the reasons, if no other, that (a) he has failed to provide a single relevant precedent or other authority, or to present a coherent legal argument, in support of his theories of judicial error and consequent prejudice

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(in violation of his obligation under Mass.R.Civ.P. 16[a][4], as amended, 367 Mass. 921 [1975]. See Commonwealth v. Gordon, 407 Mass. 340 , 350 [1990] [involving denial of defendant's motion for mistrial]) [Note 23]; and (b) he has not demonstrated any abuse of the broad discretion with which trial judges are invested when ruling on motions for mistrial, see Commonwealth v. Amirault, 404 Mass. 221 , 232 (1989); Commonwealth v. Riberio, 49 Mass. App. Ct. 7 , 10-11 (2000), a particularly heavy burden that Stegemann has failed to address, much less discharge. [Note 24]

Furthermore, the judge's ruling was not improper on this record. A prosecutor may generally "state anything in his opening statement that he expects to be able to prove by evidence," Commonwealth v. Cohen, 412 Mass. 375 , 382 (1992), including facts that would have to be proved by inferences. Commonwealth v. Johnson, 429 Mass. 745 , 748 (1999). Proof of Stegemann's intent to distribute was an essential element of the possession count against him based on the September 7, 2001, incident in Carnute's apartment. See G. L. c. 94C, § 32A(c). The evidence (as testified to by Carnute and another user witness, Ronald Janis) of Stegemann's having regularly dealt drugs in concert with LaMountain, over the period of six months prior to their arrests, was relevant to and probative of that intent. Compare Commonwealth v. Smith, 58 Mass. App. Ct. 166 , 175 (2003), rev'd on other grounds, 543 U.S. 462 (2005). Stegemann

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has additionally failed to come to grips with (let alone satisfy) his heavy burden of proving abuse of discretion and palpable error by the judge in having implicitly determined that the probative value of such relevant evidence outweighed any potential prejudice. See Commonwealth v. Leonard, 428 Mass. 782 , 786 (1999); Commonwealth v. Gollman, 436 Mass. 111 , 113-115 (2002); Commonwealth v. Delong, 60 Mass. App. Ct. 528 , 535-536 (2004).

Stegemann's conclusory claim of prejudice from the judge's allowance of the LaMountain evidence is also unsupported by the record. First, his counsel failed to take advantage of the court's expressed willingness to revisit the ruling the following day, and also failed to request cautionary or curative instructions of any sort. [Note 25] Moreover, in closing the prosecutor made only one unspecific reference to the LaMountain evidence (regarding the extensive drug paraphernalia found there, none of which revealed a tie to Stegemann); did not mention it in connection with the most serious charge, trafficking (for which the prosecutor relied entirely on the quantity of cocaine found in Stegemann's cellar); and relied solely on the testimony of Carnute and undercover officer Hill to prove the September 7, 2001, charges (distribution of cocaine, possession of cocaine with intent to distribute, and associated school zone violations). [Note 26]

Given the strength of the Commonwealth's case on the four counts against him arising out of the controlled buy (and attendant circumstances) on September 7, 2001 -- including the eyewitness testimony of a trained police officer experienced in

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narcotics investigations (which the prosecutor particularly stressed in his closing) -- we think it implausible and entirely speculative to infer, as Stegemann urges, that without the scattered references to the LaMountain evidence the jury would not have convicted him of the September 7th charges.

Conclusion. For the reasons set forth above, the judgments on the indictments charging trafficking in cocaine and possessing steroids, and for doing so in a school zone, are reversed. The judgments on the indictments charging possession of cocaine with intent to distribute, second offense, and distribution of cocaine, second offense, are affirmed.

So ordered.

BROWN, J. (concurring). Although this is a close case, I believe it falls within the reasoning of a narrow line of cases, see Commonwealth v. O'Day, 440 Mass. 296 , 304 (2003) (collecting cases), and is readily distinguishable from the peculiar circumstances presented in Commonwealth v. Eller, 66 Mass. App. Ct. 564 , 570-571 (2006).