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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. DiStefano,
22 Mass.App.Ct. 535 (1986)
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Michael Fabbri, Asst.
Dist. Atty., for Com.
Ronald Ian Segal, Everett, for defendant.
Before [22
Mass.App.Ct. 535]
KASS, KAPLAN and WARNER, JJ.
[22 Mass.App.Ct. 536]
KASS, Justice.
Upon
motions by the defendants, a judge of the Superior Court ordered the
suppression of evidence seized during a search of the defendants' home at
[1] We
review the adequacy of the affidavit made by a State police officer in support
of the search warrant under which the police acted.
1. Probable cause. That affidavit relied heavily on an
informant's tip and, in review, we are to analyze the basis of knowledge and
the reliability of the information supplied to determine whether probable cause
existed to issue a search warrant. Commonwealth v. Upton, 394
[22 Mass.App.Ct.
537] In the case at bar, the
supporting affidavit was made by Thomas J. Quigley, a State trooper assigned at
the time to the Middlesex district attorney's narcotics unit. Quigley received information from a drug
addict (the affidavit refers to the addict‑informant as CIX, and we adopt that mysterious‑sounding
appellation) that CIX had bought pure heroin from
persons known to CIX as Jimmy and Jeanne DiStefano, usually at a price of $300 per half gram and
$600 per gram. CIX
said he had been introduced through a mutual friend; Jimmy DiStefano
would not meet with customers unless he had known them for years. The usual procedure for a customer, CIX said, was to call Jeanne at 389‑6001 and she
would tell the customer where to meet.
Usual meeting places included a Burger King parking lot next to the
Chelsea Mall, and the parking lot of the Chelsea Mall itself. Jeanne drove a blue Mercury Cougar.
CIX said he had been present at a "buy" from
Jeanne in the Burger King parking lot during the week of September 17, 1984,
i.e., reasonably close in time to the date, September 28, 1984, on which
Trooper Quigley executed the affidavit. CIX also told Trooper Quigley he had accompanied a friend
to the DiStefano home to buy heroin within the week
before the date on which the affidavit was sworn to and the search warrant
issued. CIX
did not know the name of the street on which the DiStefano
house was located, but placed the house only a minute away from the Burger King
and next to an Everett public works building.
From the State Police Criminal Information Bureau, Trooper Quigley
learned that 389‑6001 was a nonpublished
telephone number listed to Jeanne J. Cataldo, 25 East
Elm Street, Everett, information which correlated with CIX's
tip. CIX had
reported that Jeanne's last name had been Cataldo,
but CIX thought she had married Jimmy. The address linked to the telephone number,
25 East Elm Street, was the address of the house next to an Everett public
works building.
On
September 26, 1984, Trooper Quigley again spoke with CIX. The latter during the preceding three days
had spoken with Jeanne, who had said she had brown heroin for sale and expected
to have dilaudid and white heroin for sale within the [22 Mass.App.Ct.
538] next few days. CIX also mentioned
that he had noticed two Doberman pinschers at the Cataldo/DiStefano
house.
Meanwhile
Trooper Quigley had mounted a stakeout of the Cataldo/DiStefano
house on September 24, 1984. That
initial surveillance yielded no observation of consequence, although he was
able to verify that Jeanne, indeed, drove a blue Mercury Cougar. Quigley also did some checking with the
Federal Drug Enforcement Agency, from which he learned that Jeanne and Jimmy
each had considerable histories of unlawful dealing in narcotics.
Surveillance
of the Cataldo/DiStefano house resumed on September
26, 1984. Considered in isolation, what
the officers observed would hardly have been a basis for action. Taken with what they had already learned, their
observations had some value. A car
parked at a corner before the Cataldo/DiStefano
house, its lights went off, but the driver did not get out. Rather, DiStefano
emerged from his house and entered the parked car. He stayed in the car for about five minutes,
during which the car moved past 25 East Elm Street and was parked one block
away. There, DiStefano left
the car and returned to his house on foot.
At 8:00
P.M. that day, a Gerald Pini, known to the police as
a drug dealer, (FN2) arrived at 25 East Elm Street. He left the house at 8:30 P.M., went to his
car, and re‑entered carrying a small package.
During
their surveillance, the police officers noted a Doberman pinscher in front of
the Cataldo/DeStefano house, thus verifying another
piece of the picture CIX had described to them.
The
stakeout resumed at 5:20 P.M. on September 27th. Pini arrived at 25
East Elm Street at 5:50 P.M. Jeanne left
at 5:55 P.M., and Pini left five minutes later. A woman unknown to the police emerged from
the house at 6:55 P.M., walked to a [22
Mass.App.Ct. 539]
white Chevrolet without registration plates, entered the car from the passenger
side, and either took something from, or put something in, the glove
compartment. She locked the Chevrolet
and then drove off in a car registered to Jeanne. At 7:00 P.M. a woman in her twenties arrived
in a white Plymouth at 25 East Elm Street and went inside. She left at 7:30 P.M., escorted by Cataldo and DiStefano. Five minutes later, Jeanne left in her blue
Cougar in the direction of the Chelsea Mall.
That squared with CIX's description of the Cataldo/DiStefano modus operandi.
At 7:45
P.M., a man arrived in a white Buick registered to a Gregory J. Slaney, who the officers found had a record which included
possession of controlled substances with intent to distribute them. Jeanne returned at 8:00 P.M., followed by Pini and another man.
The driver of the Buick left at 8:20 P.M. Pini and his
companion left at 8:22 P.M.
In
applying for a search warrant, Trooper Quigley noted that he had confirmed
several details of what CIX had told him: the Cataldo/DiStefano
house was next to a department of public works garage; it was close to a Burger King; the unlisted telephone number belonged to
Jeanne Cataldo;
Cataldo operated a blue Mercury Cougar; Cataldo and DiStefano had Dobermen pinschers
(at least one had been seen). Quigley
might have added that the method and place of delivery described by CIX had been borne out by observation. Concerning his observations, Quigley, who
claimed specialized training in the investigation of narcotics violations and
participation in over 100 drug cases, said they were consistent with the
illegal distribution of narcotics. A
judge of the Superior Court signed a "no knock" warrant, as the
police had requested, on September 28, 1984.
A search in accordance with the warrant was conducted on the night of
October 4, 1984. It yielded considerable
inculpatory material.
[2]
Although CIX's information suffered the weakness of
not coming from a tested informant, it was fortified by corroboration of
details through police investigation. Draper v. United States, 358 U.S. 307,
313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). See
Commonwealth v. Kaufman, 381 Mass. 301, 303, 408 N.E.2d 871 (1980). The relative specificity of [22 Mass.App.Ct.
540] much that CIX
had supplied about the Cataldo/DiStefano operation
tended to buttress its credibility.
As for the
basis of CIX's knowledge, his statement that he had
purchased drugs from the defendants and the observed detail in the tip were
important indicators. United States v. Harris, 403 U.S. at 583,
91 S.Ct. at 2082. Commonwealth v. Nowells,
390 Mass. 621, 626, 458 N.E.2d 1186 (1983). Commonwealth v. Atchue,
393 Mass. 343, 348, 471 N.E.2d 91 (1984). Commonwealth v. Norris, 6 Mass.App.Ct. 761, 764‑765, 383 N.E.2d 534 (1978). Contrast the comparative lack of detail and
direct involvement in Commonwealth v. Reddington, 395 Mass. 315, 324, 480 N.E.2d 6
(1985); and Commonwealth v. Bottari, 395 Mass. 777,
784, 482 N.E.2d 321 (1985).
Indeed, the motion judge, in a thoughtful memorandum,
registered satisfaction with the reliability of the informant's information and
CIX's basis for believing that the defendants were
involved in the distribution of narcotics.
The judge's concern, having in mind
Commonwealth v. Reddington, 395 Mass. at 322‑323,
480 N.E.2d 6, was whether "the informant or the police had a basis of
knowledge adequate to support an inference that drugs were on hand in the house at the time the informant
spoke to the police" (emphasis original).
[3] [4]
[5] On the basis of the informant's information and the police investigation,
we are of opinion that Trooper Quigley's affidavit furnished probable cause to
believe that there were drugs in the house when the search warrant was issued
and when the search was made. CIX told the police he had been to the Cataldo/DiStefano
house as recently as the week of September 17th, and had been given to
understand by Jeanne on about September 23rd that fresh inventory of dilaudid and white heroin was expected. The independent observations made by the
experienced police during surveillance on September 26th supported an inference
that drugs were moving in and out of the premises. See
Commonwealth v. Saleh, 396 Mass. 406, 411‑412,
486 N.E.2d 706 (1985). The time gap
between late information and the affidavit was two days; between late information and the search,
eight days. Neither period was such as
to cause the information supporting the search warrant to be stale when the
warrant was executed. See Commonwealth v. Vynorius, [22 Mass.App.Ct.
541] 369 Mass. 17, 25, 336 N.E.2d
898 (1975); Commonwealth v. Smith, 370 Mass. 335,
343, 348 N.E.2d 101 (1976); Commonwealth v. Blye,
5 Mass.App.Ct. 817, 362 N.E.2d 240 (1977). Moreover, as those cases call to attention,
freshness of the information becomes a less weighty factor when the criminal
activity is a continuing business. See
also United States v. Campbell, 732
F.2d 1017, 1019 (1st Cir.1984). The
warrant was executed within the requisite seven days of its issuance. G.L. c. 276, §
3A. See Commonwealth v. Cromer, 365 Mass. 519, 313 N.E.2d 557 (1974).
We think
that the application of a common sense, non‑technical reading of the
application for a search warrant,
Commonwealth v. Saleh, 396 Mass. at 412, 486
N.E.2d 706, furnished "a substantial basis for concluding that any of the
articles described in the warrant are probably in the place to be
searched." Commonwealth v. Truax,
397 Mass. 174, 178, 490 N.E.2d 425 (1986).
2. Authorization of nighttime search. The defendants imaginatively attack the
warrant on the additional ground that it authorized a nighttime search without
a particular request that the search might be conducted at night. They argue that a nighttime search, unless
authorized by a magistrate's finding that the search can only be safely or
successfully executed at nighttime, offends the prohibition against
unreasonable searches contained in the Fourth Amendment of the United States
Constitution and art. 14 of the Declaration of Rights of the Constitution of
the Commonwealth.
There is
some doubt whether the search in this case took place in the nighttime in the
sense that nighttime searches are most often regarded with revulsion‑‑the
rousing of residents out of their beds.
See, e.g., Monroe v. Pape, 365 U.S. 167, 210, 81 S.Ct.
473, 496, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting);
Gooding v. United States, 416 U.S. 430, 463, 94 S.Ct.
1780, 1797, 40 L.Ed.2d 250 (1974) (Marshall, J., dissenting). Thus, in the Model Code of Pre‑Arraignment
Procedure § 220.2(3) (1975), it is provided that, except upon special
authorization of nighttime searches, a search warrant shall be executed between
8:00 A.M. and 8:00 P.M. The warrant in
the case at bar was executed at 7:30 P.M.
In
applying for the search warrant, Trooper Quigley requested dispensation from
the common law knock and announce [22
Mass.App.Ct. 542]
rule because James DiStefano had previously possessed
a firearm, had one or more Doberman pinschers on the premises, had been a
fugitive, and appeared to be dealing in
contraband susceptible of disposal down a toilet or drain. The request was justifiably granted under the
principles laid down in Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818 (1982). The warrant was based on the form which
appears in G.L. c. 276, § 2A, inserted by St.1964, c.
557, § 3. There were struck from the
opening line of the second paragraph the words "in the daytime" so
that the paragraph began: "We
therefore command you at any time of the day or night to make an entry without
knocking and announcing followed by an immediate search ...."
Under G.L. c. 276, § 2, as appearing in St.1964, c. 557, § 2, the
norm is to command a search in the daytime, and only "if the warrant so
directs," in the nighttime. In Commonwealth v. Hinds, 145 Mass. 182,
184‑186, 13 N.E. 397 (1887), the idea that the Legislature might
authorize the issuance of nighttime search warrants more or less upon the
discretion of the officer who signed the warrant was accepted without a second
thought. Such also was the view of the
majority in Gooding v. United States,
416 U.S. at 431‑458, 94 S.Ct. at 1782‑1794,
which considered only the resolution of conflicting District of Columbia
statutes. One statute allowed nighttime
searches upon direction of the magistrate who issued the warrant; the other required a showing of special need
for a nighttime search. The Court
concluded that no special showing for a nighttime search was required. That the Fourth Amendment might be implicated
was advanced only in the dissents of Justices Douglas and Marshall. Id.
at 459‑469, 94 S.Ct. at 1795‑1800.
The
thoughtful view is that nighttime intrusions "are alarming and danger
provoking, and should not be authorized without good cause shown." Model Code of Pre‑Arraignment Procedure,
commentary to § 220.2, at 513. See 2 LaFave, Search and Seizure § 4.7(b) (1978). Unlawful nighttime searches of the home
present the unlawful search in its most obnoxious form. See
Monroe v. Pape, 365 U.S. at 210, 81 S.Ct. at 496 (Frankfurter, J., dissenting). The Massachusetts statute, i.e., G.L. c. 276, § 2, insofar as it requires the warrant to
direct a nighttime search, approaches the position of the Model Code, although
it does [22 Mass.App.Ct.
543] not embrace it. One presumes a magistrate would direct a
nighttime search only for cause, but the magistrate is not required to state
what the cause is. It would be good
practice if a nighttime warrant were issued only on a request backed up by
reasons.
[6] As
here applied, there is no infirmity in the issuance of a day or night warrant
under G.L. c. 276, § 2. The object of search was a house said to
belong to seasoned traffickers in narcotics.
The police had observed that the suspects conducted themselves with
alert caution. If it was necessary to
dispense with knock and announcement, it might well be desirable to have the
cover of darkness and to arrive when the defendants' guard might be down.
The order
granting the motion to suppress is reversed, and the cases are remanded to the
Superior Court for trial.
So ordered.
FN1. Six of
the companion cases are against James DiStefano and
eight are against Jean DiStefano, also known as Jean Cataldo, and referred to as Jeanne J. Cataldo
in all the documents connected with the search warrant.
FN2. We engage in a certain amount of foreshortening
and reordering of the sequence of Trooper Quigley's affidavit. At the time he was watching Pini, for example, Quigley did not know who he was. That was a fact he sorted out later by
examining photographs from the Massachusetts State Bureau of Identification.