Judge: Police had no basis to enter apartment while waiting for search warrant

Photo courtesy Beverly policeDrugs and handguns seized during a 2017 search in Beverly have been suppressed by a judge.

BEVERLY — A Salem Superior Court judge has ruled that Beverly police illegally entered a Cabot Street apartment — after first using a battering ram to break down the door of the wrong apartment — during a drug investigation two years ago. 

As a result, prosecutors may have to drop cocaine trafficking and firearms charges against two men who were tied to the apartment where nearly half a pound of cocaine, two unlicensed handguns with defaced serial numbers, and a quantity of heroin were found in October 2017. 

In a decision issued last month, Judge James Lang concluded that there was no justification for police to enter and remain in the apartment for more than three hours, ostensibly to secure the premises, while another officer wrote a search warrant application back at a police sub-station. 

Lang suppressed the evidence in the apartment, as well as statements made by one of the suspects while he was waiting with police there. 

Under the law, police officers who want to secure a scene or dwelling while obtaining a search warrant may not enter, unless they have a legitimate belief that evidence could be removed or destroyed. 

But in the case against Anthony Augusta and Kevin Sanchez, Lang concluded, the detectives did not. 

"In the circumstances presented, the officers could have seized the premises from the exterior, and they should have done so," Lang wrote in a 21-page ruling. "They could simply have closed the apartment door and posted an officer outside it, barring entry by Sanchez and anyone else until the warrant had been obtained and was being executed." 

But that warrant, as well, was obtained in large part due to information the detectives learned only after they were inside, Lang said. 

Augusta, 26, and Sanchez, 25, were both staying in an apartment at 64 Cabot St. in the fall of 2017. 

On Oct. 17, a Marblehead police detective passed information to his counterparts in Beverly that Sanchez was suspected of selling drugs in Marblehead. Lang noted in his ruling that the basis of that information was not provided in the search warrant application. 

Beverly Detective Tom Nolan told the supervisor of the drug unit, Sgt. Michael Cassola, about the information, and the two began conducting surveillance of the apartment. 

On the morning of Oct. 20, Nolan and Cassola saw a man they mistakenly identified as Sanchez get into a car, drive it across the street into a driveway, go inside the apartment house at 64 Cabot St. and return to the car about five minutes later. 

They decided to stop the car, but after appearing to pull over, the driver sped off, leading to a chase. 

The driver, who turned out to be Augusta, abandoned the Honda and tossed a bag into some hedges nearby as he fled. That bag contained numerous baggies of heroin and cocaine packaged for sale. Police quickly caught up with Augusta and put him into custody. 

While Augusta was being booked, Cassola and Nolan decided to get a search warrant for the apartment. As Nolan began writing the application, Cassola went, along with Ipswich police Detective Edward Gallivan, back to Cabot Street to secure the apartment. 

Gallivan, who had not been involved in any of the earlier surveillance, "knew nothing about the investigation," Lang said. 

Lang said Cassola spotted a man smoking on a landing outside the house and asked for the best way to "Apartment 2R." 

The man pointed to a door. Cassola asked if anyone was home, and the man told him that "I just saw him a little while ago," Lang wrote, quoting Cassola's testimony at the hearing. 

The detectives knocked on the apartment door and announced that they were police officers. There was no answer, and no sounds from the apartment to suggest anyone was inside. 

Cassola then decided to use a battering ram to break down the door. 

But once inside the apartment, they saw some mail and realized that they were at the wrong address — 66 Cabot St. 

As the detectives left, Cassola spotted Sanchez quickly leaving his apartment next door, leaving the door open. 

Sanchez said he had just heard a loud banging sound. 

Cassola then identified himself and Gallivan and told Sanchez that they were waiting for a warrant. They then said they intended to wait inside the apartment, and told Sanchez that he could leave, or, if he chose to stay, would have to remain on a sofa and surrender his phone. 

While in the apartment, Cassola noticed what is known as a "Santa Muerte shrine," something often kept by drug dealers who perceive it to bring good luck and ward off trouble. He relayed that detail to Nolan, who included it in the search warrant affidavit. 

Even with that detail, Lang, a former federal prosecutor, said the affidavit "provides scant basis for suspecting drugs would be found in the target premises." 

"On the record presented, a legitimate question is presented whether, even with the inclusion of the observation of the Santa Muerte shrine in the apartment, the affidavit would satisfy the nexus requirement," information that would provide probable cause to believe they would find evidence of drug dealing there, the judge wrote. "Without it, the affidavit clearly did not." 

Lawyers for the two men, Meredith Reeves and Christopher Belezos, had also urged the judge to suppress statements made by Sanchez to officers while they were waiting in the apartment, statements in which he tied himself to the address. 

Lang granted that request as well.  

"In sum, the court concludes that the illegality of the police behavior was sufficiently serious and the connection between that illegality and the making of the statements by Sanchez was sufficient intimate to justify suppression of the statements as a fruit of the illegality," Lang wrote. 

Prosecutors could seek to appeal the judge's ruling. 

Carrie Kimball, a spokeswoman for the District Attorney's office, said prosecutors are reviewing Lang's decision. 

During a status hearing in the case on Wednesday, prosecutors were given until next month to make a decision on how they will proceed. Both men have been free on bail in the case. 

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis. 

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