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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. Fontaine, 28 Mass.App.Ct.
575 (1990)
Appeals Court of Massachusetts,
No. 89‑P‑980.
Argued
Decided
Richard J. White for defendant.
Sean J. Gallagher, Asst. Dist. Atty., for
Com.
Before PERRETTA,
CUTTER and SMITH, JJ.
SMITH, Justice.
On
"On September 9, 1986, at
approximately 5:00 p.m., I received information from Robert J. Frommer of 1368 North Main Street, Lancaster, MA, that
Laurence E. [28 Mass.App.Ct.
576] Fontaine of 35 Holiday Lane,
White Street Extension, was growing Marijuana in his residence.
"Frommer
states that on Saturday, September 6, 1986, Thomas Morris, Otis Street,
Lancaster, MA., John Ledoux, Charlotte Street,
Lancaster, MA., and himself had gone to the Fontaine residence at Fontaine's
request, as the three are members of the Lancaster Conservation Commission and
Fontaine was proposing an addition to his home and due to the closeness to the
water (White Pond) needed the Conservation Commission to do an on‑site
survey.
"While on the property, on the north
side of the dwelling in the windows, Frommer observed
three decorative pots which contained Marijuana. He described the plants to be green, about
four feet tall with 3 to 4 inch serrated leaves. He states that two pots were in one window
and one in another.
"I asked Frommer
how he knew it was Marijuana. He states
that he has seen it before and knows what it is.
"Frommer
has been a resident of the Town of Lancaster for at least ten years and has
held numerous positions in the town. He
is highly respected throughout the town and I had known Frommer
personally for at least the last seven years."
As a result of their search, the police
seized, among other things, three flower pots containing marihuana plants. The defendant was charged with several
narcotic offenses. Prior to trial, he
filed a motion to suppress the seized evidence, claiming that the warrant was
not issued on probable cause. The judge
denied the suppression motion, and, after a jury‑waived trial, the
defendant was convicted of all charges.
He appeals from the denial of his suppression motion.
[1] Both the Fourth Amendment to the
United States Constitution and art. 14 of the Massachusetts Declaration of
Rights require a showing of probable cause before the issuance of a search
warrant.
Commonwealth v. Rojas, 403 Mass. 483, 485, 531 N.E.2d 255
(1988). Under the Massachusetts
standard, [28 Mass.App.Ct.
577] the principles developed in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969), are employed in
probable cause inquiries. Commonwealth v. Upton, 394 Mass. 363,
374, 476 N.E.2d 548 (1985). "Under
the Aguilar‑ Spinelli
standard, if an affidavit is based on information from an unknown
informant, the magistrate must 'be informed of (1) some of the underlying
circumstances from which the informant concluded that the 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 his information "reliable" (the veracity
test).
Aguilar v. Texas, supra [378 U.S.] at 114 [84 S.Ct.
at 1514]. If the informant's tip does
not satisfy each aspect of the Aguilar
test, other allegations in the affidavit that corroborate the information could
support a finding of probable cause. Spinelli v. United
States, supra [393 U.S.] at 415 [89 S.Ct. at
588].'
Commonwealth v. Upton, 390 Mass.
[562,] 566 [458 N.E.2d 717 1983]." Commonwealth v. Upton, 394
Mass. at 374‑375, 476 N.E.2d 548.
Here, the affiant named his source of information and also related the
circumstances leading to the informant's chance observations of the marihuana
plants. As the defendant concedes, the
veracity test was met by the instant affidavit.
See Commonwealth v. Burt, 393
Mass. 703, 710, 473 N.E.2d 683 (1985).
[2] The defendant claims, however, that
the affidavit failed to satisfy the basis of knowledge test. He argues that, in a situation where a
warrant is sought for the seizure of narcotics, the affidavit must state how
the informant acquired the ability to identify the narcotics in issue. Examining the affidavit, the defendant
contends that it provided no information from which the magistrate could
conclude that Frommer possessed "sufficient
expertise to identify growing marijuana."
In
Sullivan v. District Court of Hampshire, 384 Mass. 736, 743‑744, 429
N.E.2d 335 (1981), the court refused to adopt "an inflexible rule"
that a police officer must have previously seen marihuana to seize it
lawfully. The opinion noted that
probable cause is not tantamount to a prima facie case, let alone proof beyond
a reasonable doubt. Id. at 744, 429 N.E.2d 335. Therefore, the court ruled, "[i]t is not necessary, in order to seize a substance
suspected[28 Mass.App.Ct.
578]
of being marihuana, that an officer have scientific proof that it is
such." Ibid.
See also Commonwealth v. Skea, 18 Mass.App.Ct. 685, 689
n. 7, 470 N.E.2d 385 (1984). The
analysis in Sullivan controls the
issue presented by the defendant here.
The defendant's argument would require the motion judge to view the
affidavit and the magistrate's decision thereon in hypertechnical
fashion, inconsistent with Massachusetts decisions. Commonwealth v. Cefalo, 381 Mass. 319, 329‑330, 409 N.E.2d 719
(1980).
Commonwealth v. Cinelli, 389 Mass. 197,
213, 449 N.E.2d 1207 cert. denied, 464 U.S. 860, 104 S.Ct.
186, 78 L.Ed.2d 165 (1983). See also United States v. Ventresca,
380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684
(1965). (FN1)
Other jurisdictions have held that an
affidavit supporting a search warrant is not required to show how the informant
knew the item to be seized was an illegal narcotic drug. United States v. Cates, 663
F.2d 947, 948 (9th Cir.1981) ("It
is not critical that [the informant] did not state how he knew that the
contraband was a controlled substance"); State v. Horwedel,
66 Or.App. 400, 404, 674 P.2d 623 (1984) ("It is not necessary that an affiant
describe the informant's familiarity with the specific drug at issue");
Commonwealth v. Gelfont, 264 Pa.Super. 96, 102, 399 A.2d 414 cert. denied, 444 U.S. 930,
100 S.Ct. 273, 62 L.Ed.2d 188 (1979) ("The information that a [n] ...
informant provides law enforcement authorities ... has never been held to ... a
standard of proof beyond a reasonable doubt"); Dishman
v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855, 858
(1970) ("To be positive that the
material delivered to the defendant was marijuana, a chemical examination would
be required. Many common plants look
like it. Before he can obtain a search
warrant, however, the agent is not required to have the information the search warrant would
disclose"); Capistran v. State,
759 S.W.2d 121, 128 (Tex.Crim.App.1988) (a "layman is permitted to assert
that a substance seen by him is marihuana without a showing in the affidavit of
his [28 Mass.App.Ct.
579] qualifications to recognize
it"). Contrast Molina v. State, 533 So.2d 701, 702‑705 (Ala.Crim.App.1988),
cert. denied, 489 U.S. 1086, 109 S.Ct. 1547, 103
L.Ed.2d 851 (1989) (truck driver told officer that he had just seen two men in
a car "purchase a 'big bag of marijuana' on the causeway"; no probable cause because he failed to
provide a "particularized account of how he came upon such knowledge and
... how he identified the substance as marijuana"); State v. Matlock, 27 Wash.App. 152, 155‑156, 616 P.2d 684 (1980) (officer
claimed he saw marihuana plants in defendant's yard and/or house; "[a]bsent some
showing that [he] had the necessary skill, training or experience to identify
marijuana plants on sight, the affidavit was insufficient to establish probable
cause for the issuance of a search warrant").
We conclude that the affidavit, examined
by the traditional principles governing the issuance of a search warrant,
provides a sufficient showing of probable cause.
Denial
of suppression motion affirmed.
Judgments
affirmed.
PERRETTA,
Justice (dissenting).
Article 14 of the Massachusetts
Declaration of Rights, which the defendant has invoked, guarantees that the
government will not be given a warrant authorizing an entry and search of a
person's home and the seizure of property found therein unless it can justify
the intrusion by showing the existence of probable cause. As applied in the circumstances of this case,
the probable cause requirement is satisfied if the affidavit sets out facts
sufficient to show that the plants in the decorative pots in the windows were
probably marihuana plants. See Commonwealth v. Cefalo,
381 Mass. 319, 328, 409 N.E.2d 719 (1980).
As noted by the majority, the affiant received his information from a
named citizen, whose veracity commendably has not been challenged by the
defendant. The majority's statement that
the "affidavit ... provides a sufficient showing of probable cause"
amounts to a [28 Mass.App.Ct.
580] conclusion of law that the
affidavit sets out facts sufficient to show that the plants are probably what
the citizen claims them to be. I
disagree with that conclusion and, therefore, respectfully dissent.
In my view, the majority sidesteps the
issue when it states that an "affidavit supporting a search warrant is not
required to show how the informant knew the item to be seized was an illegal
narcotic drug." 28 Mass.App.Ct. at 578, 553 N.E.2d at 956. The critical issue is a constant: "In the case of a search warrant ... the
affidavit must, in order to establish probable cause, contain enough
information for the issuing magistrate to determine that the items sought are
related to the criminal activity under investigation, and that they may
reasonably be expected to be located in the place to be searched"
(citations omitted). (FN1)
Commonwealth v. Cefalo, 381 Mass. at 328,
409 N.E.2d 719. None of the cases cited
by the majority is dispositive of this issue as
raised on the facts before us. Rather,
in each of these cases, with the exception described in note 2, infra, the substance in question was in
and of itself probative because it was in a form and package indicative of
ready sale or consumption. Further, many
of the affidavits in those cases recited that the informant‑buyers were
familiar with the particular substance because of their prior purchases or
use. In some cases there were facts also
showing activity probative of drug sales, such as many people, some known drug
users, entering and leaving the watched premises. In sum, those affidavits showed [28 Mass.App.Ct.
581] sufficient facts from which it
could be reasonably concluded that the substance was probably an illegal
drug. (FN2)
In the present case we are informed that
the plants in the decorative pots are green and "about four feet tall with
3 to 4 inch serrated leaves." The
Commonwealth advises us in its brief that this "description of the plants
is consistent with an accurate description of a marijuana plant." As support for this assertion, it quotes
from a dictionary definition: "
'[M]arijuana (the hemp plant) 1. a tall Asiatic plant
of the genus Cannabis of which Cannabis sativa is the only known species. It is an annual herbaceous plant, the fiber
of which constitutes the hemp of commerce.' " (FN3)
Assuming it is even appropriate for a magistrate to rely upon such
information (FN4) and assuming that the magistrate in this case did resort to a
dictionary, I think the citizen's description so innocuous as to render any
"consistency" unremarkable.
If the physical characteristics of a
marihuana plant are significant or unique to some degree and, therefore, easily
distinguished from other tall green plants by a person of average knowledge and
not botanical expertise and facts to that effect had been recited in the
affidavit, I would go no further. As it
is, I think that the citizen's description of the plants, standing alone, is
without probative force.
[28
Mass.App.Ct. 582]
Further, as I read the majority opinion, they place no undue reliance on the
description of the plants. Rather, what
the majority find to be sufficient information to support a finding of probable
cause is the citizen's statement that he knew the described plants were
marihuana because he "has seen it before and knows what it is." In my opinion, a self‑verifying or
self‑corroborating, conclusory statement of
knowledge based upon prior identification and which assumes prior correct identification is not a
sufficient basis for concluding that the plants were probably marihuana
plants. To the extent the majority
suggests in note 1 of their opinion that I would require facts as to "time,
place and occasion whereupon ... [the citizen] had previously seen
marihuana," they have misconstrued my concerns. Although such information might be probative,
I do not state that only that type of information will suffice. There is no formula by which the existence of
probable cause is to be determined. All
that is necessary is sufficient information of a probative nature. What we have here, no more, no less, is an
unremarkable description of plants set in decorative pots in two windows of a
house. We are asked to conclude that
they are probably marihuana plants on the sole basis that a citizen tells us
that he knows a marihuana plant when he sees one.
Because the majority concludes that the
citizen's statement of prior observation is a sufficient showing of his ability
to identify a plant as a marihuana plant, it was unnecessary for them to go any
further. As I do not agree with that
conclusion, I consider the fact that the citizen was on the defendant's
property as a member of the Lancaster Conservation
Commission. There is nothing in the
affidavit or G.L. c. 40, § 8C, to show or to allow
for an inference that such members are required to bring to their positions
expertise or training in identifying flora.
Even assuming it reasonable to infer such service provides its members
with the opportunity to acquire that knowledge, an inference of acquired
knowledge in the instant case would be unreasonable. Further, the affidavit is silent as to this
citizen's length of service on the commission.
[28
Mass.App.Ct. 583]
For those reasons, I would reverse the judgment, set aside the findings, and
reverse the order denying the defendant's motion to suppress all the evidence
seized pursuant to the warrant.
(FN1.) In any event, we note that the named source
of the information stated that upon observing the plants "he knew it was
[m]arijuana [because] ... he has seen it before and
knows what it is." Certainly, it
is not necessary for him to state the time, place and occasion whereupon he had
previously seen marijuana.
(FN1.) Although the affiant did not identify
in his affidavit the criminal activity that he believed the defendant was
probably engaged in, I think it reasonable to infer from the affidavit that the
cultivation of marihuana was at issue.
The warrant itself, which the defendant does not challenge, leaves no
room for speculation. It authorized the
search of the defendant's house, garage, and two storage sheds and the seizure
of "[m]arijuana and any other controlled
substances as defined in G.L. c. 94C, § 1, and any
paraphernalia related to the cultivation and sale of the same. Records, books, papers, documents, money
related to the illegal possession and distribution of controlled
substances."
(FN2.) In
State v. Matlock, 27 Wash.App. 152, 154, 616 P.2d
684 (1980), a police officer noticed plants "which appeared to be
Marijuana" growing on the premises of his sister's neighbor. That neighbor had "on other occasions
been reported to have sold Marijuana."
It also had been "reported" that there had been
"gatherings" at the neighbor's premises "where participants
smoked ... 'roaches.' " Further,
the defendant's "two young children have admitted watering plants in the
attic of the ... premises." The
court, at 155‑156, 616 P.2d 684, found the affidavit fatally lacking in
"any information to support ... [the officer's] claim the plants he saw
were marijuana. Absent some showing that
... [the officer] had the necessary skill, training or experience to identify
marijuana plants on sight, the affidavit was insufficient to establish probable
cause for the issuance of a search warrant." (Citation omitted.) In dissenting, I place no special reliance
on Matlock.
(FN3.) Webster's Third New International
Dictionary 1381 (1971) describes marihuana as follows: "1:
a wild tobacco (Nicotiana glauca )
2a: HEMP 1 b: the dried leaves and flowering tops of the pistallate hemp plants that are the source of the drug
cannabin...."
(FN4.) But see Commonwealth v. Taglieri, 378 Mass. 196,
198‑199, 390 N.E.2d 727 (1979).