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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. DiAntonio,
8 Mass.App.Ct. 434 (1979)
Appeals Court of Massachusetts, Worcester.
Argued
Decided
H. Hoover Garabedian,
Worcester, for defendants.
Lynne Morrill Turcotte,
Asst. Dist. Atty., for the Commonwealth.
Before BROWN, GREANEY and PERRETTA, JJ.
GREANEY, Justice.
The
defendants, Gerald J. DiAntonio and Carol A. Slamin, were convicted after a jury waived trial on gaming
violations. DiAntonio
was convicted on indictments charging him with using a telephone to register
bets (G.L. c. 271, s 17A), and with a second offense within a five‑year
period of being found in a place (11 Colonial Road, Milford) with betting
apparatus and devices. G.L. c. 271, ss 17 and 20. Slamin was convicted on an indictment charging her with
knowingly permitting her apartment at
The
affidavits in question were prepared by Trooper Robert K. Haley of the State
Police Special Service Unit designated to investigate gaming and organized
crime. The first affidavit pertained to
an investigation of DiAntonio's activities in an
apartment at 17 Mark Drive, Milford.
This affidavit was used to obtain a search warrant for that apartment,
which issued on December 8, 1978, and was returned unexecuted three days later
because of the receipt of information that the suspected gaming operation had
moved to a new address. The second
affidavit pertained to an investigation of DiAntonio's
activities at Slamin's apartment at 11 Colonial Road,
Milford. This affidavit was used to
obtain a second search warrant, which was executed on December 14, 1978, and
which was used to gather much of the physical evidence produced at the
trial. (FN2)
The
affidavit as to 17 Mark Drive rested both on information received from a
confidential informant and on the results of police investigation and
observations. It indicates that the informant
had supplied information to the State police in the summer of 1978 that led to
the arrest and conviction of six named Milford residents on a variety of gaming
charges. Included among these six named [8 Mass.App.Ct.
436] persons were Louis Lotfy, (FN3) Thomas A. Mullen, and the defendant, DiAntonio. The
informant, known to the trooper, advised that DiAntonio
was accepting wagers and giving out lines on athletic contests using telephone
numbers 478‑3479 and 473‑4765.
The informant also claimed to have registered bets and received lines on
sporting events from DiAntonio at the two telephone
numbers within four days of contacting the police. The informant indicated that the two
telephones were listed in the names of other persons to avoid detection
and that unknown males answered the phone when DiAntonio
was not present.
The
affidavit also details the following data of significance resulting from police
investigation of the 17 Mark Drive address: the telephone numbers described
above were listed to Daniel White of 17 Mark Drive and Master Tax Service, in
care of Gene White at the same address; the name White was listed on a mailbox
lettered "D" outside of the building at 17 Mark Drive and a
"D" apartment was located on the first floor; DiAntonio
was observed on various dates entering the building, and inside apartment
"D"; telephone calls to 478‑3479 by the trooper on six
occasions resulted in the telephone going unanswered three times, two busy
signals, and an answer on the first ring by a voice recognized as belonging to DiAntonio; three telephone calls by the trooper to 473‑4765
resulted in two no answers and one response on the first ring by an unknown
male. Louis Lotfy,
one of the six convicted on the informant's information, was observed exiting
the building on November 19, 1978, and DiAntonio was
observed leaving the building on November 24, 1978, with Thomas A. Mullen,
another convicted gambling entrepreneur.
Stitching this material together was information by the informant that
on December 4, 1978, he dialed 478‑3479, talked to "Gerry,"
asked for and received[8 Mass.App.Ct. 437] a point spread on a football game being
played that night and placed a bet on the game.
All of this material in the affidavit led to the issuance of the search
warrant for the apartment at 17 Mark Drive on December 8, 1978, which was
returned unexecuted on December 11, 1978, based on information that the
apartment under surveillance had been abandoned, (FN4) and the gaming
operations moved over the weekend to a new location listed to telephone number
473‑2003.
The
affidavit pertaining to the 11 Colonial Road investigation repeated practically
all the foregoing data. The following
new information was contained in that affidavit: telephone number 473‑2003
was listed to Carol F. Slamin of 11 Colonial Road;
the name "Slamin" was written on the
mailbox for apartment 11 at the building at that address; a telephone call to
478‑3479 at 17 Mark Drive by the trooper led to a conversation with an
unknown male who indicated that "Gerry" was no longer there, and that
"those people" had moved to a new location whose number could be
obtained if you "go through the 'Elks' "; DiAntonio's
car was observed parked outside the building at 11 Colonial Road, and he was
observed entering the back door; and several telephone calls to 473‑2003
encountered busy signals and on one occasion an answer by DiAntonio
on the first ring. Finally, both
affidavits contained a conclusion on the part of the officer that the actions
described therein were consistent with the activities of persons engaged in
illegal gaming.
[1] The
essence of the defendants' arguments with regard to the warrant is that the
hearsay information given by the informant cannot survive the "two‑pronged"
reliability test developed in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 [8 Mass.App.Ct. 438] (1964), and that the material supplied to the magistrate was
insufficient overall to support a finding of probable cause that gaming
violations were occurring at 11 Colonial Drive, Milford. Under Aguilar, the police may rely on hearsay
information supplied by an informant in their affidavits for warrants if the
affidavits inform the magistrate issuing the warrant of "some of the
underlying circumstances" from which the informant derived the information
he supplied the affiant and "some of the underlying circumstances from
which the officer concluded that the informant, whose identity need not be
disclosed . . . was 'credible' or his
information 'reliable.' " Ibid. See Spinelli v. United
States, 393 U.S. 410, 415‑416, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969); Commonwealth v. Stewart, 358 Mass. 747, 750, 267 N.E.2d 213
(1971); Commonwealth v. Stevens, 362 Mass. 24, 26‑27, 283 N.E.2d 673
(1972); Commonwealth v. Hall, 366 Mass. 790, 797, 323 N.E.2d 319 (1975);
Commonwealth v. Norris, 6 Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNA), 383 N.E.2d 534
(1978). If the informant's material,
standing alone, is found to be insufficiently reliable under Aguilar, other
independent allegations contained in the affidavit which corroborate the
material should then be considered. Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. 584; Commonwealth v. Anderson, 362 Mass. 74, 75‑76,
284 N.E.2d 219 (1972); Commonwealth v. Avery, 365 Mass. 59, 62‑63, 309
N.E.2d 497 (1974); Commonwealth v. Vynorius, 369
Mass. 17, 20, 336 N.E.2d 898 (1975).
(FN5)
[2] The
principal information supplied by the informant in this case satisfies the
"underlying circumstances" "prong" of the Aguilar
test. The affidavits recite that the
informant had received lines from and placed bets with DiAntonio
with a specification of the two telephone numbers[8 Mass.App.Ct. 439] used for those
purposes. An incriminating detail was
supplied in the indication, established to be accurate, that the telephones
were masked by the names of other persons to avoid detection. In the course of the investigation the
informant received a line and placed a bet on a Monday night football game with
"Gerry" at one of the identified telephone numbers. Also of significance was the accurate
information that the operation had been moved from 17 Mark Drive to 11 Colonial
Road over the weekend of December 8, 1978.
It could be inferred that the informant had direct knowledge concerning DiAntonio's background and his methods in conducting his
trade, based on personal observation and contacts which went materially beyond
"a casual rumor circulating in the underworld or an accusation based
merely on an individual's general reputation." Spinelli v. United
States, supra, 393 U.S. at 416, 89 S.Ct. at 589.
[3] The
affidavits also contain sufficient information to establish the reliability of
the informant, the second "prong" of the Aguilar test. They describe six specific occasions on which
the informant had furnished the police with accurate information regarding
gambling activities in the Milford area which had led to the arrest and
conviction of six named persons on a wide range of gambling charges. Included within the group was a conviction of
DiAntonio on charges of being found with apparatus
for registering bets and using a telephone for gaming purposes. A record of past performance running to this
length carries its own persuasive indicia of authentication. See Commonwealth v. Anderson, 362 Mass. 74,
76, 284 N.E.2d 219 (1972); Commonwealth v. Snow, 363 Mass. 778, 783, 298 N.E.2d
804 (1973); Commonwealth v. Hall, 366 Mass. 790, 797, 323 N.E.2d 319 (1975);
Commonwealth v. Vynorius, 369 Mass. 17, 21, 336
N.E.2d 898 (1975). See also 1 LaFave, Search and Seizure s 3.3(b) (1978). Moreover, the other information set forth in
the affidavits fully corroborates the high points of the informant's story and
provides additional basis for deeming him reliable. Details of the informant's story match the
pattern of facts [8 Mass.App.Ct. 440]
developed by the independent police investigation. See Commonwealth v. Stewart, 358 Mass. 747,
752, 267 N.E.2d 213 (1971); Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
[4] We
also conclude that the information in the affidavits, together with reasonable inferences that could be drawn therefrom, were sufficient to permit the District Court
clerk who examined both affidavits to find it probable that the apartment at 11
Colonial Road was being used for registering bets or for conducting other
gaming activities as a successor location to the premises at 17 Mark
Drive. Without repeating all of the
details described above, DiAntonio's comings and
goings, telephone numbers hidden under other identities, calls encountering
busy signals or answers on the first ring, movement of the operation from one
location to another (inferably to avoid police detection), the registering of a
bet by the informant, DiAntonio's prior gaming
convictions, and observation of him with another convicted gambler, Thomas A.
Mullen, were enough to "warrant a man of reasonable caution in the belief
that" the object of the search is probably on the premises to be searched
at the time the warrant is issued.
Commonwealth v. Stewart, 358 Mass. at 749, 267 N.E.2d 213, quoting from Brinegar v. United States, 338 U.S. 160, 175‑176, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949). The existence of probable cause
is also supported by the inferences drawn by the experienced officer who signed
the affidavits that the activities described therein were consistent with the
use of the premises at 11 Colonial Road for illegal gaming activities. In this context, "(w)eight must be given
to the special experience of a law enforcement officer who has executed an
affidavit. For example, where such an
officer states that he has drawn inferences from facts which an inexperienced
person might not draw from those facts, the magistrate may rely on those
inferences." Commonwealth v. Taglieri, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNB), 390 N.E.2d 727.
See also 1 LaFave, Search and Seizure s 3.2 at
463 (1978). While the recitation of a
conclusion by an experienced police officer as to what the facts in the
affidavit mean to him cannot [8 Mass.App.Ct. 441]
be used as a talismanic formula in every case to provide probable cause where
evidence to support such a finding is otherwise lacking, it could be relied
upon by the clerk in this case to support the existence of probable cause in
conjunction with the facts and circumstances observed by the police in the
course of the investigation.
[5]
Finally, we reject the defendant's reliance on the Taglieri
decision, for the proposition that the affidavits failed to establish probable
cause. Our reasons in this regard are
fully explained in the decision in Commonwealth v. Lotfy,
‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNC), 391 N.E.2d 1249
(1979). We also reject the defendants'
contention that the affidavit pertaining to the 11 Colonial Road warrant should
be considered separately and without reference to the information contained in
the affidavit summarizing the investigation of the activities at 17 Mark
Drive. The same clerk studied both
affidavits, and they are intrinsically linked together. To study the affidavits separately in the
manner the defendants suggest would be to engage in the type of hypertechnical dissection of affidavits that has been
rejected as an unsound method of analysis in this type of case. Commonwealth v. Stewart, 358 Mass. at 751,
267 N.E.2d 213; Commonwealth v. Victor, 1 Mass.App.
600, 601, 304 N.E.2d 444 (1973). See
also Commonwealth v. Alessio, ‑‑‑
Mass. ‑‑‑ (FND), 384 N.E.2d 638 (1979).
Judgments
affirmed.
FN1.
Commonwealth v. Carol A. Slamin.
FN2. A member of the State police team
executing the warrant was Trooper Patrick M. Greaney,
who is neither related nor known to the author of this opinion.
FN3. Lotfy's
conviction under G.L. c. 271, s 17, of being found in a place with devices and
apparatus for registering bets was affirmed by this court in Commonwealth v. Lotfy, ‑‑‑ Mass.App.
‑‑‑ (Mass.App.Ct.Adv.Sh. (1979) 1517), 391 N.E.2d 1249.
FN4. The informant's tip that the use of the
premises at 17 Mark Drive had been abandoned was corroborated by police
observation on the evening of December 11, 1978, that the lights in apartment
"D" were off, by police telephone calls to both numbers used at that
apartment which went unanswered, and one call which was answered and conveyed
information that the location had been changed.
FNa. Mass.App.Ct.Adv.Sh. (1978) 1234, 1237‑1238.
FN5. We determine it appropriate to examine
the affidavits in light of the Aguilar standards because the affidavits are
quite dependent on the informant's information which adds considerable gloss to
the police observations. In this respect
the affidavits differ from those considered in two recent cases where
independent police observations were held sufficient to document the existence
of probable cause apart from the informant's tips. See Commonwealth v. Lotfy,
‑‑‑ Mass.App. ‑‑‑
(Mass.App.Ct.Adv.Sh.
(1979) 1517, 391 N.E.2d 1249, and Commonwealth v. Wingle,
‑‑‑ Mass.App. ‑‑‑
(Mass.App.Ct.Adv.Sh.
(1979) 1866), 394 N.E.2d 983.
FNb. Mass.Adv.Sh. (1979) 1405, 1408.
FNc. Mass.App.Ct.Adv.Sh. (1979) 1517, 1523‑1524.
FNd. Mass.Adv.Sh. (1979) 95.