USA v. Klimavich et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CRIMINAL ACTION NO. 23-10284-RGS
UNITED STATES OF AMERICA
v.
STEPHEN M. MARSDEN
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO SUPPRESS
January 3, 2026
STEARNS, D.J.
Defendant Stephen Marsden, who is charged with federal cocaine-
related and firearms offenses, seeks to suppress a search of his apartment at
#901, 100 Cove Way, Quincy, Massachusetts, as well as the seizure of
incriminating items found by police in his home. 	As the searches and
seizures at issue were conducted pursuant to an anticipatory warrant,1 the
1 An anticipatory search warrant is one “based upon an affidavit showing
probable cause that at some future time (but not presently) certain evidence of
crime will be located at a specified place.” 2 LaFave, Search and Seizure, § 3.7(c),
at 485 (2020). Anticipatory warrants are lawful under the Fourth Amendment.
United States v. Grubbs, 547 U.S. 90, 94-95 (2006). “[F]or a conditioned
anticipatory warrant to comply with the Fourth Amendment’s requirement of
probable cause, two prerequisites of probability must be satisfied. It must be true
not only that if the triggering condition occurs ‘there is a fair probability that
contraband or evidence of a crime will be found in a particular place,’ . . . but
also 	that 	there 	is 	probable 	cause 	to 	believe 	the 	triggering 	condition will
occur.” Grubbs, supra, at 96-97. Marsden does not take issue with the officers’
use of an anticipatory warrant or their compliance with its 	triggering
precondition, the search of package #6 confirming that it in fact contained (in
which in any event he could not claim a viable expectation of privacy).
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court’s review is confined to the facts set out in the warrant and its
supporting affidavit and any reasonable inferences that can be drawn from
the facts. See United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999) (the
inquiry begins and ends with the four corners of the affidavit). In recognition
of this preference, courts reviewing warrants “will accept evidence of a less
‘judicially competent or persuasive character than would have justified an
officer in acting on his own without a warrant.’” Aguilar v. Texas, 378 U.S.
108, 111 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S.
213 (1983). 	After-the-fact scrutiny of the sufficiency of the supporting
affidavit does not take the form of de novo review; rather as a matter of law,
the magistrate’s “‘determination of probable cause should be paid great
deference by reviewing courts.’” Illinois v. Gates, 462 U.S. 213, 236 (1983),
quoting Spinelli v. United States, 393 U.S. 410, 419 (1969), see also Beck v.
Ohio, 379 U.S. 89, 96 (1964) (same, arrest warrants). 	Consequently, no
evidentiary hearing in this case is required.
FACTUAL BASIS OF THE WARRANT
The essential facts disclosed in the warrant are as follows. In March of
2023, a joint drug investigation task force comprised of the Massachusetts
State Police (MSP) and the United States Postal Inspection Service, began
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investigating packages being shipped from anonymous persons in Puerto
Rico to fictitious persons allegedly residing at apartments #303 and #404 in
a multi-unit apartment building at Cove Way in Quincy. The delivery of six
such packages was traced by the officers to the reception area (alcove) of the
apartment complex. 	The first five packages were delivered without being
searched. 	Police surveillance established that all five of the packages were
retrieved 	from 	the 	alcove 	by 	Marsden, 	who 	resided 	with 	his 	wife 	in
apartment #901 of the complex. 	On four of the five occasions, Marsden
retrieved the packages from the alcove and then retreated towards his
apartment in the interior of the building. 	The suspicious nature of the
packages and the even more telling behavior of Marsden after taking them
into possession is set out in meticulous detail in the supporting affidavit by
MSP 	Trooper 	Kevin 	Tufts, 	a 	well-trained 	and 	experienced 	narcotics
detective.
The sixth package, which brings us to the search, arrived at a Quincy-
area postal facility on May 23, 2023, in transit to Cove Way. 	The package
exhibited the same indicia of suspicion as its five predecessors and weighed
some 7.8 lbs. (3 kilograms). 	The investigating officers summoned a drug-
sniffing dog, Charlie, and his experienced handler. Charlie, who is certified
as a drug-detection canine, with hundreds of hours of training and the
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certificates to prove it, 2 has in his eight years in law enforcement been
responsible for the detection of over 100,000 grams of cocaine with a street
value of over $2,000,000. Charlie alerted immediately to package #6,
supporting the investigators’ belief that the package contained cocaine.
At that point, officers sought and obtained the anticipatory warrant
from a Quincy District Court Clerk-Magistrate authorizing the search of
package #6 and conditi0onally Marsden’s apartment # 901 at Cove Way. The
warrant set out two triggering conditions precedent. First, that the package
when opened be confirmed by the officers to contain cocaine. 	The second
was that Marsden be seen retrieving the package upon its arrival at Cove
Way. If these conditions were met, the warrant authorized the seizure inter
alia of “cocaine and other illegal narcotics, any instrument or paraphernalia
used in the cutting, procuring, weighing, packaging, and/or distribution of
2 Drug-sniffing dogs are not devious creatures whose reliability must
be verified by a heightened showing of probable cause. 	Florida v. Harris,
568 U.S. 237, 244 (2013) (faulting the Florida Supreme Court for flouting the
traditionally fluid test of probable cause by creating a strict evidentiary
checklist of dog-sniffing reliability “whose every item the State must tick
off”). “No more for dogs than for human informants is such an inflexible
checklist the way to prove reliability, and thus establish probable cause.” Id.,
at 245. 	Justice Kagan, writing for a unanimous Court in Harris was not
herself short of suggestions regarding factors that a court might weigh in
measuring 	a 	dog’s 	reliability 	– 	for 	example, 	the 	dog’s 	satisfactory
performance or certification in a drug detection training program and the
dog’s history of field performance. Id. at 246-247.
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controlled 	substances, 	paraphernalia, 	implements, 	and 	other 	articles
necessary for the business of distributing controlled substances.” Dkt#75-2
at 1. 	The warrant also authorized the officers to seize “any additional
instrument or equipment, electronic or otherwise, used to further the sale of
controlled substances . . . .” 	Id. 	Package #6 was delivered and the warrant
executed on May 26, 2023.
ADDITIONAL RULINGS OF LAW
Marsden’s objection to the warrant is two-fold. First, he contends that
there was no basis on which the Clerk-Magistrate could have inferred that
evidence of drug activity would be found in his apartment (#901), as opposed
to apartments #303 and #404, which were used as drop sites (that is, he
alleges an insufficient nexus); and (2) that the warrant did not specifically
authorize the seizure of firearms from his apartment, or alternatively, that
there was no basis to believe that firearms are implements used in the
conduct of the drug trade (that is, overbreadth).
A “nexus between the items to be seized and the place to be searched
need not be based on direct observation . . . [and] may be found in the ‘type
of crime, the nature of the missing items, the extent of the suspects’
opportunity for concealment, and normal inferences as to where a criminal
would 	be 	likely 	to 	hide 	stolen 	property’” 	or 	other
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contraband. Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983); see also
United 	States 	v. 	Ribero, 	397 	F.3d 	43, 	49 	(2006) (same). 	Significant
authority supports the inference that a successful drug dealer is likely to keep
drugs, 	proceeds, 	and 	records 	of 	drug 	dealing 	in 	his 	home. 	See 	2
LaFave, Search and Seizure, § 3.7(d) (2020); United States v. Feliz, 182 F.3d
82, 87-88 (1st Cir. 1999); United States v. Dixon, 787 F.3d 55, 60 (1st Cir.
2015); see also United States v. Whitner, 219 F.3d 289, 297-299 (3d Cir.
2000) (collecting cases). The inference that records and paraphernalia will
be found in a defendant’s home is particularly compelling when a large-scale,
multi-kilo dealer is using his home as a base of operations, and as was the
case with Marsden, masquerading phantom destinations as diversionary
“drop-off” sites for the delivery of his drug supply. The officers’ surveillance
of Cove Way never detected any one of the pseudonymous occupants of
apartments #303 or #404 to be involved with the retrieval or further delivery
of the six suspicious packages.
There is also no tenable support for Marsden’s objection that the police
exceeded the scope of the search authorized by the Clerk-Magistrate by,
extending it to the bedroom in the apartment and his (open) safe. If there is
probable cause to believe that criminal activity is afoot in one room of a
household, a warrant to search the entire dwelling and its appurtenances is
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not overly broad. 2 LaFave, Search and Seizure, § 4.10 (a) (2020). See also
United States v. Ferreras, 192 F.3d 5, 10-11 (1st Cir. 1999) (attic); United
States v. Canestri, 518 F.2d 269, 273-274 (2d Cir. 1975) (locked basement
storeroom); United States v. Fagan, 577 F.3d 10, 14 (1st Cir. 2009) (storage
closet opening onto a landing eight feet from the front door of defendant’s
apartment). The intensity of a search “is defined by the object of the search
and the places in which there is probable cause to believe that it may be
found.” United States v. Ross, 456 U.S. 798, 824 (1982). See also Maryland
v. Garrison, 480 U.S. 79, 84 (1987) (same). 	Any unlocked or locked
container on the premises that could reasonably conceal an item described
in the warrant may be opened and searched. See United States v. Giwa, 831
F.2d 538, 543-544 (5th Cir. 1987); United States v. Wright, 704 F.2d 420,
422 (8th Cir. 1983) (per curium) (officers searching for drugs 	lawfully
opened a locked safe); United States v. Criswell, 696 F.2d 636, 640 (8th Cir.
1983) (refrigerator freezer compartment); United States v. Gray, 814 F.2d
49, 51 (1st Cir. 1987) (pockets of a jacket found on the premises); United
States v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973) (briefcase). 	Officers in
this case were well justified in searching Marsden’s open safe (where the
firearms were found) and would have, if necessary, been justified in breaking
its lock. Finally, as a matter of law, the warrant’s authorization of the seizure
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of “implements, and other articles necessary for the business of distributing
controlled substances” is reasonably interpreted as including firearms found
in proximity to evidence of drug-dealing. It is well-recognized by courts that
firearms 	are 	standard 	tools 	of 	the 	drug 	trade. 	See 	United 	States 	v.
Walters, 904 F.2d 765, 769 (1st Cir. 1990); United States v. Sarda-Villa, 760
F.2d 1232, 1234 n.1 (11th Cir. 1985); United States v. Payne, 805 F.2d 1062,
1065 (D.C. Cir. 1986).3
ORDER
For the foregoing reasons, the motion to suppress is DENIED.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
3 The officers would also have been justified in seizing the firearms
under the aptly termed “plain view” doctrine. See United States v. Aguirre,
839 F.2d 854, 858-859 (1st Cir. 1988); United States v. Robles, 45 F.3d 1, 6
(1st Cir. 1995).
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