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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Desper, 419
Supreme Judicial Court of Massachusetts,
Argued
Decided
Susan Underwood, Asst. Dist. Atty., for Com.
Patricia A. Wynn,
Salvatore F. DiMasi,
Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR
and GREANEY, JJ.
GREANEY, Justice.
The
Commonwealth challenges an order of a judge of the Superior Court, suppressing
evidence seized from apartment no. 3,
On
The
affidavit further stated that within the week preceding Driscoll's warrant application,
an anonymous person placed a telephone call to the drug unit and stated that
one Ricardo Gomes and a man known as Stanley were selling drugs from an
apartment on the second floor of the house at 91 East Brookline Street in
Boston. According to the caller,
"Stanley" drove a red car with the Massachusetts registration number
777AGC, and lived at 5 Adamson Street in the Allston section of Boston. The anonymous caller stated that Ricardo
always slept with a firearm beside him.
[419 Mass. 165] Acting on the information he had received from the informant,
Driscoll undertook surveillance of the East Brookline Street townhouse. He observed a number of people enter the
building and leave it a short time later.
One of those people he knew as Ricardo Gomes, whom Driscoll had arrested
in August, 1981, for possession of cocaine with intent to distribute. Driscoll also observed a man in his sixties
with a gray ponytail, get out of a red car with registration number 777AGC. He confirmed that the automobile was
registered to a person residing at 5 Adamson Street in Allston. Driscoll checked the criminal records of
Ricardo Gomes and Stanley Desper. Both
men had been convicted for violations of the Controlled Substances Act. Desper had also been arrested for a firearms
violation and for assault with intent to murder. His record indicated that he was also known
as William Darrah, and that he had given an address of 5 Adamson Street,
Allston, when arrested.
Within two
weeks prior to the making of the affidavit, Driscoll arranged with the
informant "to make a controlled buy of cocaine." Driscoll watched the informant enter the
building at 91 East Brookline Street.
The informant left the building a short time later and gave the
detective a plastic bag containing a white powder, which the informant said he
had purchased from Desper. A field test
showed the powder to be cocaine. Within
forty‑eight hours prior to making the affidavit, Driscoll again sent the
informant "into 91 East Brookline to make a controlled buy." He again watched the informant enter the
building at 91 East Brookline Street and exit a short time later. Again, the informant turned over a plastic
bag containing a white powder which field‑tested positive for cocaine.
Based on
the information supplied in the affidavit, Driscoll requested, and was issued,
a no‑knock warrant for apartment no. 3, on the second floor of the
building at 91 East Brookline Street in Boston.
During the ensuing search, the police seized twenty‑seven bags of
cocaine, drug‑related paraphernalia, over $3,000 in cash, and a
handgun. The defendants, Stanley Desper
(also known as William Darrah) and Ricardo
[419 Mass. 166] Gomes, were
charged with trafficking in cocaine, in violation of G.L. c. 94C, § 31 (1992
ed.), conspiring to traffic in cocaine, also in violation of G.L. c. 94C, § 31,
and unlawful possession of a firearm, in violation of G.L. c. 140, § 129C (1992
ed.). As previously noted, a judge of
the Superior Court allowed the defendants' motions to suppress.
[1] [2]
[3] The legal principles applicable to issuance of a search warrant in the
Commonwealth are well established, and were recently repeated in Commonwealth v. Warren, 418 Mass. 86,
88‑89, 635 N.E.2d 240 (1994). When
an application for a warrant depends in significant part on information
provided by a confidential informant, the affidavit must "apprise the
magistrate of (1) some of the underlying circumstances from which the informant
concluded that contraband was where he claimed it was (the basis of knowledge
test), and (2) some of the underlying circumstances from which the affiant
concluded that the informant was credible or the information reliable (the
veracity test)." Commonwealth v. Warren, supra at 88, 635
N.E.2d 240, citing Commonwealth v. Upton,
394 Mass. 363, 375, 476 N.E.2d 548 (1985), and Commonwealth v. Parapar, 404 Mass. 319, 321, 534 N.E.2d 1167
(1989). Each of these tests must be
satisfied independently, but "police corroboration of an informant's
detailed tip can compensate for deficiencies in either or both prongs of the
standard, and thus satisfy the [Massachusetts Declaration of Rights] art. 14
probable cause requirement." Commonwealth v. Warren, supra at 89, 635
N.E.2d 240.
The
defendants concede that the basis of knowledge test is satisfied. Driscoll's informant personally observed the
defendants carrying firearms and selling drugs in the apartment at 91 East
Brookline Street. See id.
See also Commonwealth v. Perez‑Baez,
410 Mass. 43, 45, 570 N.E.2d 1026 (1991); Commonwealth v. Carrasco, 405 Mass. 316,
321, 540 N.E.2d 173 (1989).
Next we
examine whether the veracity test is satisfied.
The affidavit did not contain the usual information from which it
reasonably could be inferred that the informant was credible. It did not state, for example, that the
informant had supplied information to the police in the past which had led to
arrests, seizures of contraband, pending cases or convictions. See, [419
Mass. 167] e.g., Commonwealth v. Mejia, 411 Mass. 108, 111‑114, 579 N.E.2d
156 (1991); Commonwealth v. Perez‑Baez, supra,
410 Mass. at 45‑46, 570 N.E.2d 1026.
The
anonymous telephone call to the police station did not corroborate the
informant's statements in the "significant detailed respects"
required when an anonymous tip is relied on for this purpose. See
Commonwealth v. Nowells, 390 Mass. 621, 624‑627, 458 N.E.2d 1186
(1983). There is no assertion in the
affidavit that the anonymous caller had been in the apartment. Thus, the source of his information may have
been hearsay. To the extent that it
merits consideration, see id. at 627,
458 N.E.2d 1186, the telephone call failed to provide the sort of idiosyncratic
detail that would effectively corroborate and lend credibility to the
informant's assertions. See Commonwealth v. Santana, 411 Mass. 661,
665, 583 N.E.2d 1288 (1992).
Driscoll's
independent investigation yielded some additional information competent to
bolster the reliability of the informant's tip.
However, in the absence of further detail as to the number of visitors
and the length of their visits, the statement that an unspecified "number
of persons" were observed entering a four‑story, multi‑apartment
building and leaving it "a short time later" does not tend to prove
that a person or persons in the building are engaged in criminal behavior. See
Commonwealth v. Byfield, 413 Mass. 426, 430 n. 7, 597 N.E.2d 421
(1992). Contrast Commonwealth v. Valdez, 402 Mass. 65, 71 & n. 4, 521 N.E.2d
381 (1988) (police observation of "known drug users entering [building]
and remaining for three to five minute periods" bolstered informant's
credibility). The defendants' criminal
histories, as recited by Driscoll, consisted of several arrests (outcome
uncertain) and convictions of uncertain vintage, and could "not be given
weight in a probable cause determination." Commonwealth v. Melendez,
407 Mass. 53, 59, 551 N.E.2d 514 (1990).
See Commonwealth v. Allen, 406
Mass. 575, 579, 549 N.E.2d 430 (1990) (only if defendant's criminal history is
recent and similar to crime charged may it be factored into probable cause
determination as corroboration of informant's veracity). Driscoll's investigation confirmed the
defendants' identities and their presence at the 91 East Brookline Street address,
but "verified no predictive details that were not easily[419 Mass. 168] obtainable by an
uninformed bystander." Commonwealth v. Lyons, 409 Mass. 16, 21,
564 N.E.2d 390 (1990).
[4] At
issue is whether the statement, that the informant made two "controlled
buys" from the defendants, can compensate for the affidavit's otherwise
deficient showing on the point of the informant's veracity. "A controlled purchase of narcotics,
supervised by the police, provides probable cause to issue a search warrant."
Commonwealth v. Warren, 418 Mass. 86, 89, 635 N.E.2d 240 (1994),
citing Commonwealth v. Luna, 410
Mass. 131, 134, 571 N.E.2d 603 (1991).
Generally, a "controlled buy" has, at a minimum, these
components: (1) a police officer meets
the informant at a location other than the location where is it suspected that
criminal activity is occurring; (2) the
officer searches the informant to ensure the informant has no drugs on his
person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant
to the premises where it is alleged illegal activity is occurring and watches
the informant enter and leave those premises;
and (4) the informant turns over to the officer the substance the
informant has purchased from the residents of the premises under
surveillance. See Commonwealth v. Warren, supra, 418 Mass. at 89‑90, 635
N.E.2d 240; Commonwealth v. Tshudy, 34 Mass.App.Ct.
955, 956, 615 N.E.2d 583 (1993); Commonwealth v. Benlien, 27 Mass.App.Ct.
834, 838, 544 N.E.2d 865 (1989). See
also 1 W.R. LaFave, Search and Seizure § 3.3(f), at 686‑687 (2d ed. 1987
& Supp.1994), and the many cases cited therein. (FN2)
[5] Here,
the affiant twice watched the informant enter the building, and leave a short
time later with a substance that tested positive for cocaine. The informant named the individuals from whom
the substance had been purchased. The
principal difficulty with this "controlled buy" is
that the affiant did not state that the informant was searched for drugs before
the informant entered the building at 91 East Brookline[419 Mass. 169] Street. (FN3)
The defendants argue that in these circumstances the informant might
have obtained the cocaine from a source other than the defendants. The result, they contend, "is a buy that
relies on the veracity of an informant whose veracity has not otherwise been
proven." Gomes further argues that
this is particularly problematic in a case in which the affiant watches the
informant enter a particular building, but cannot confirm that the informant
has entered the apartment in which it is alleged that the defendants are
engaged in criminal activity.
It was
observed in Commonwealth v. Warren,
supra, 418 Mass. at 90, 635 N.E.2d 240, that the police were not required
to risk disclosure of their surveillance by observing the apartment in a small
multi‑apartment building an informant actually enters in the course of
executing a controlled buy. Based on the
information provided by the informant, and their own observation of the
informant entering the building, the police may infer the truthfulness of the
informant's report that he entered the premises controlled by the suspect.
(FN4) The Warren case involved a three‑story building with three
apartments. This case involves a four‑story
brick townhouse. See also Commonwealth v. Valdez, supra, 402
Mass. at 71 n. 4, 521 N.E.2d 381 (police surveillance "bolster[ed]
informant's [veracity] even though the police observed [419 Mass. 170] only
the building's main entrance and not the defendant's second floor apartment"). In
United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir.1993), a case
factually similar to the Warren case,
the United States Court of Appeals for the First Circuit observed: "[T]he defendant's argument ... was that
... the informant might have stashed cocaine elsewhere in the building out of
sight of the detective. This
possibility, defendant posits, undercuts the reliability of the informant. Although defendant's argument is possible, it is not probable" (emphasis added).
Similarly, the defendants' position amounts to a contention that because
the informant who purchased drugs from Desper was not searched before making
that purchase, it is possible that the informant arrived at his meeting with
Driscoll with cocaine on his person. It
is possible that this occurred, but it is not at all probable.
[6]
Clearly, the affidavit in this case was not a model of its kind. When a police officer relies on a
"controlled buy" to compensate for otherwise deficient information
furnished by a confidential informant, the steps customary in a controlled buy
should be taken, see Commonwealth v.
Tshudy, supra, and that information should be described in detail to the
magistrate who must assess whether the art. 14 probable cause requirements have
been met. See 1 Lafave, Search and
Seizure, supra at 686‑687,
quoting State v. Barrett, 132 Vt.
369, 320 A.2d 621 (1974) ("The purpose of the search of the informer and
his being escorted to the place of purchase was to eliminate both as much as
possible of the hearsay aspects of the search warrant request and to reduce the
reliance on 'veracity' to a minimum").
[7]
Nonetheless, we conclude that the probable cause requirements were met in this
case. "In dealing with probable
cause
we deal with probabilities.
These are not technical; they are
the factual and practical considerations of everyday life on which reasonable
and prudent men ... act." Commonwealth v. Hason, 387 Mass. 169,
174, 439 N.E.2d 251 (1982), quoting
Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed.
1879 (1949). Commonwealth v. Warren, supra 418 Mass.
at 86, 635 N.E.2d 240. An informant who
undertakes [419 Mass. 171] to purchase narcotics under the
supervision of a police officer must realize that he may be searched (in fact,
is likely to be searched) before he enters a suspect's premises. An informant would be unlikely to risk the
consequences, including possible arrest, entailed by arriving at a prearranged
meeting with a police officer with narcotics on his person. See Commonwealth
v. Richardson, 37 Mass.App.Ct. 482, 486‑487, 640 N.E.2d 793
(1994). Based on the information
furnished by Driscoll, who, it will be remembered, stated that he "had
been involved in hundreds of arrest[s] involving violations of [G.L. c.
94C]," we think the magistrate who authorized the warrant could reasonably
conclude that this supervised purchase of narcotics was sufficient to establish
the reliability of the informant, thus satisfying the standards of Commonwealth v. Upton, supra. (FN5)
The order
allowing the defendants' motions to suppress is reversed and the cases are
remanded to the Superior Court for further proceedings.
So ordered.
[419 Mass. 172] LYNCH, Justice (concurring).
Although I
agree with the court that the "controlled buy" was a sufficient basis
to establish the reliability of the informant, I write separately because I
conclude that the police officer's independent investigation and the anonymous
telephone call were also sufficient to corroborate the informant's veracity. We have recognized that unnamed informants'
statements corroborating each other in significant respects, particularly when
referring to criminal conduct, could establish the veracity of the informants.
Commonwealth v. Nowells, 390 Mass. 621, 627, 458 N.E.2d 1186
(1983). See Williams v. Maggio, 679 F.2d 381, 391 (5th Cir.1982). Here, the anonymous telephone call
corroborates the informant's assertion that drugs were being sold by two men,
Ricardo Gomes and a man named "Stanley" (referred to as Stanley Desper
by the informant), from a second‑floor apartment located at 91 East
Brookline Street in Boston. The
information obtained from the telephone call and the informant's tip was
further corroborated by independent police investigation, which confirmed the
names of the two individuals, the correct address of the apartment, the exact
description of Desper, his Allston address, and the automobile he was driving.
Commonwealth v. Upton, 394 Mass. 363, 376, 476 N.E.2d 548
(1985). The officer also stated that he
had personal knowledge of Gomes because he had arrested him on a prior occasion
for possession of cocaine with the intent to distribute. Furthermore, the officer checked the criminal
records of Gomes and Desper which revealed
that they had convictions for violations of the Controlled Substances
Act. The magistrate could have believed,
therefore, that the informant's veracity was established by information from
independent sources which revealed that illegal activity was being conducted on
the premises by two specific individuals known to have been convicted in the
past for the same kind of crime. See Spinelli v. United States, 393 U.S.
410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.
1509, 12 L.Ed.2d 723 (1964). See also Commonwealth v. Upton, supra, 394 Mass.
at 376, 476 N.E.2d 548.
[419 Mass. 173] LIACOS, Chief Justice (dissenting).
I agree
with the court that apart from an adequate description of a "controlled
buy" the affidavit in this case failed to establish probable cause
adequate to support a search warrant.
This is so, because the reliability of the anonymous informant was not
established either by the other recitations within the affidavit or by
independent investigation by the police, sufficient to corroborate the
informant's information. I also agree
with the court that a controlled purchase of narcotics, supervised by the
police, may corroborate the reliability of an informant's information
sufficiently to satisfy the veracity element of the two‑pronged test
adopted by this court in Commonwealth v.
Upton, 394 Mass. 363, 374‑375, 476 N.E.2d 548 (1985). I do not, however, believe that the affidavit
in this case demonstrated that there was a "controlled buy" as other
cases have defined that term, essentially because there was no police
supervision of the alleged "controlled buys." Accordingly, I dissent.
The court
concludes that the affidavit included no information from which it reasonably
could be inferred that the informant was credible, that the anonymous telephone
call to the police station did not corroborate the informant's statements in
the "significant detailed respects" required when an anonymous tip is
relied on for this purpose, and that Detective Driscoll's independent investigation
yielded very little additional information competent to bolster the reliability
of the informant's tip. With all this, I
agree. The issue, therefore, is whether
the mere statement that the informant made two "controlled buys" from
the defendants, without any description of how the police supervised the buy,
can compensate for the affidavit's otherwise deficient showing on the point of
the informant's veracity. The court
believes that it can. I do not.
The court
relies on Commonwealth v. Warren, 418
Mass. 86, 635 N.E.2d 240 (1994), in reaching its conclusion. What the court fails to acknowledge, however,
is that the affidavit in Warren
indicated that the police "made sure the informant had no drugs [419 Mass. 174] or money before entering the building" to make the
controlled buy. Id. at 90, 635 N.E.2d 240. Thus, the affidavit in Warren demonstrated that there was police supervision of that
purchase. In contrast, the affidavit in
this case provides no indication at all that the police supervised the alleged
"controlled buys." We cannot
determine from the affidavit whether the police searched the informant before
or after the buy. We cannot determine
whether the police provided the informant with marked bills to make the
purchase. Indeed, we cannot know from
the affidavit whether the police followed
any of the steps customary in a controlled buy. In my view, if the court wishes to allow
"controlled buys" to save otherwise deficient affidavits, it should
at the very least require that the buys are in fact controlled.
A review
of other Massachusetts cases relied upon by the court reveals that a mere
statement that a "controlled buy" occurred has never been enough to
save an affidavit that otherwise fails to show the informant's veracity. See
Commonwealth v. Luna, 410 Mass. 131, 571 N.E.2d 603 (1991) (where the
affidavit in the record stated that police "checked [informant's person
before controlled buy] for any controlled substances, contraband, and
monies," furnished informant with money to make purchase, and recorded
serial numbers of those bills); Commonwealth v. Tshudy, 34 Mass.App.Ct.
955, 956, 615 N.E.2d 583 (1993) (affidavit stated that police had searched
informant before the controlled buy and found no drugs on his person, and that
police gave informant money to make purchase); Commonwealth v. Benlien, 27 Mass.App.Ct. 834, 838, 544
N.E.2d 865 (1989) (affidavit stated that police had searched informant before
the controlled buy and found no narcotics or money on informant's person,
provided informant with money to make purchase, and observed informant enter
and leave defendant's apartment). See
also United States v. Garcia, 983
F.2d 1160, 1166‑1167 (1st Cir.1993) (affidavit "fully described the
'controlled buy,' " stating that police searched informant before and
after buy and found no contraband on his person, gave informant a sum of U.S.
currency to make purchase, and observed informant enter and exit building).
[419 Mass. 175] I do not believe that a cursory mention in an affidavit of a
"controlled buy," without any information to show that the police
actually supervised the buy, can compensate for an affidavit's otherwise
deficient showing as to an informant's veracity. At the very least, I would require that the
affidavit provide some indication that the controlled buy was indeed
controlled.
Not long
ago, a distinguished Federal jurist, Senior Judge Hugh Bownes of the First
Circuit Court of Appeals, gave a lecture at the Franklin Pierce Law Center in
Concord, New Hampshire. Speaking of the
interplay between the Fourth Amendment and the so‑called "war on
drugs," Judge Bownes traced in detail decisions of the United States
Supreme Court, and other Federal courts, dealing with claims of violations of
Fourth Amendment rights arising from well‑intentioned law enforcement
efforts to eliminate the drug trade.
Concluding that these extensive and expensive efforts had not produced
the desired result, Judge Bownes suggested that perhaps a major casualty of that
"war" were the protections afforded our citizens by the Fourth
Amendment.
This
court, interpreting art. 14 of the Declaration of Rights of the Massachusetts
Constitution (the model for the Fourth Amendment), has stood fast to protect
the rights of Massachusetts citizens. Commonwealth v. Upton, 394 Mass. 363, 476
N.E.2d 548 (1985), is but one of our many decisions illustrating this
point. I am saddened that in this case
the court signals a possible retreat from our high standards. It does so by engaging in speculative
rumination about why the affiant, whom the court describes as an experienced
police officer who "had been involved in hundreds of arrest[s] involving
violations of [G.L. c. 94C, the Commonwealth's controlled substances
act]," ante at 1009, did not
know enough about controlled buys to properly describe one in his
affidavit. The court's ruminations are
without basis in the record, contrary to the motion judge's findings and,
reluctantly I add, contrary to logic and experience.
I dissent.
FN1.
Commonwealth vs. Ricardo Gomes.
FN2. In some "controlled buy"
cases, the informant has been given marked money with which to purchase
contraband, see, e.g., Commonwealth v.
Olivares, 30 Mass.App.Ct. 596, 597, 571 N.E.2d 416 (1991);
State v. Wahl, 450 N.W.2d 710, 712 (N.D.1990), or fitted with a body
recorder. See, e.g., United States v. Jimenez, 894 F.2d 1, 5 (1st Cir.1990);
State v. Wahl, supra.
FN3. Gomes also contends that there is
nothing in the affidavit from which the examining magistrate could conclude
that the informant was accompanied or escorted to 91 East Brookline
Street. We disagree. Driscoll stated in the affidavit that he had
twice "sent" the confidential informant into the building to make
controlled buys and had on both occasions observed the informant enter and exit
the building. It is reasonable to infer
from this language that Driscoll accompanied or followed the informant to the
building. Language used in an affidavit
should not be subjected to "hypercritical analysis."
Commonwealth v. Blake, 413 Mass. 823, 827, 604 N.E.2d 1289
(1992). See also Commonwealth v. Valdez, 402 Mass. 65, 71, 521 N.E.2d 381 (1988)
(affidavit must be read in "commonsense manner").
FN4. The judge's order allowing the
defendants' motions to suppress was issued without benefit of this court's
decision in Commonwealth v. Warren,
418 Mass. 86, 635 N.E.2d 240 (1994). In
allowing the motions, she relied as much on the fact that the police had not
"even verified which apartment the [informant] entered at 91 East
Brookline Street" as on the fact that the informant had not been searched
prior to the supervised purchase of narcotics.
FN5. Relying on United States v. Rodgers, 732 F.2d 625 (8th Cir.1984), and United States v. Schmidt, 662 F.2d 498
(8th Cir.1981), the defendant Desper argues that use of the term
"controlled buy" in an affidavit should not give rise to an inference
that an informant was searched prior to entering a suspect's premises. We agree that such an inference should not be
drawn. It was observed by the Appeals
Court in Commonwealth v. Tshudy, 34
Mass.App.Ct. 955, 956, 615 N.E.2d 583 (1993), that there are "usual
steps" to a controlled buy. It is
clear, however, that a variety of procedures are employed, and we do not think
that any missing step of this investigatory tactic not described in an
affidavit should be supplied by inference.
In this case, because the informant's activities were supervised by the
police, the magistrate could find probable cause without drawing such an
inference.
In the case
of United States v. Schmidt, supra,
the affidavit supporting the warrant application represented that the informant
had made a "controlled buy" within the last seventy‑two
hours. The affidavit was silent on the
procedures employed which qualified the informant's purchase of narcotics as a
"controlled buy." It did not
appear from the affidavit that the police had participated in, or supervised,
the informant's activities. Without
referring specifically to the affidavit's mention of a "controlled
buy," the court in Schmidt concluded
that there was insufficient corroboration of the information supplied by the
informant. Id. at 503. In this case, of course, the informant's
activities were monitored by the police.