Judge Robert Rufo granted a defense motion Tuesday to withhold evidence obtained through a search warrant in the case of Jason Willoughby.
Willoughby is charged with involuntary manslaughter in the death of an Island woman, as well as distribution of a Class B substance (fentanyl) and conspiracy to violate the Controlled Substance Act. He pleaded not guilty to those charges in November of last year at Barnstable Superior Court. At Dukes County Superior Court on April 24, Willoughby’s defense attorney, Robb Moriarty, moved to suppress evidence gathered by Tisbury Police in their execution of a search warrant at 190 Bernard Circle on Feb. 6, 2018.
Rufo, who took Moriarty’s motion under advisement at the hearing and set a presumptive trial date for Oct. 9, wrote, “The fruits of the warrant search … all evidence seized from the residence, and any other evidence obtained directly or indirectly as a result,” is suppressed.
In his decision, Rufo wrote that the defense proved that the affidavit supporting the search warrant did not provide “requisite probable cause” to search the residence.
“While the affidavit provided ample probable cause that the defendant was engaged in illegal narcotics distribution operation which resulted in a death, this information ‘does not necessarily constitute probable cause to search the person’s residence’,” Rufo wrote.
In his written motion, Moriarty stated that Jason Willoughby’s residence was not searched lawfully because the search warrant was not supported by probable cause. Moriarty cited “no exigent circumstances,” and several other faults that amounted to a violation of his client’s rights under the Fourth Amendment plus elements of Massachusetts law.
In an affidavit made in support of the warrant application, Tisbury Police Officer Michael O’Rourke stated he and a fellow officer arrived at an address on Greenwood Avenue on Feb. 6, where they were met by Leo Willoughby, the reporting party. Leo Willoughby is a cousin of Jason Willoughby, according to past courtroom statements made by Moriarty. O’Rourke further stated that Leo Willoughby led the officers to a bedroom where a woman showed “obvious signs of death.”
The commonwealth charged Jason Willoughby with the woman’s death on the premise he sold a drug or drugs that contributed to her demise.
At the hearing on the motion to suppress evidence, Moriarty pointed out Officer O’Rourke wrote in the affidavit that Leo Willoughby told him “they drove from the Patriot [ferry] to Leo Willoughby’s house, and then Leo Willoughby drops Jason Willoughby at Franklin Street and Boxberry Avenue.”
“Jason Willoughby had just picked up a large quantity of fentanyl off-Island,” according to the affidavit.
Moriarty further pointed out at the hearing that O’Rourke stated Leo Willoughby said Jason Willoughby was renting a basement apartment on Bernard Circle.
“But he doesn’t give an exact number,” Moriarty said. Nevertheless, police are able to establish what address Jason Willoughby lived at, he said.
“Leo Willoughby stated Jason Willoughby told him he keeps his drugs on his person,” Moriarty continued. “That’s it. Nothing else — not that he keeps drugs at the house, not that he makes sales out of the house, not that he’s ever been to the house and seen drugs at the house. There’s none of that …”
In his ruling, Rufo points out that the officer failed to make the connection to the residence in describing the single sale of fentanyl. “This information does not come close to constituting a ‘nexus between the defendant’s drug-selling activity and his residence [sufficient] to establish probable cause at the residence’,” Rufo wrote.
One search warrant was executed for the Bernard Circle apartment, and one search warrant was executed for Jason Willoughby’s person. Moriarty did not contest the personal search, which revealed “drug packaging with a black substance” and $288 hidden in Jason Willoughby’s boot, the affidavit states.
Moriarty said the search of the Jason Willoughby’s premises included dismantling plumbing and investigating a grinder pump for evidence.
An inventory of evidence gathered from 190 Bernard Circle included plastic bags with various residues inside them, prescription pill bottles with and without labels, sandwich bags of marijuana, an empty bottle of vodka, a needle cap, and other items.
At the hearing, Assistant District Attorney Jessica Croker said a nexus existed between Jason Willoughby’s alleged drug distribution and his residence sufficient to support issuance of the warrant. She said a witness told police Jason Willoughby lived at 190 Bernard Circle, and another witness stated “he has seen many people coming and going from this apartment.”
Croker said, “Potentially that is an inference drugs are being sold from this apartment.”
Croker went on to argue Willoughby appears not to have a car, and since the large amount of fentanyl he allegedly bought wasn’t on his person, “that it is reasonable to infer that there would be a quantity of narcotics kept in the home where he lives.”