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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. Kuszewski,
385
Supreme Judicial Court of Massachusetts,
Argued
Decided
William E. Loughlin, Asst.
Dist. Atty., for the Commonwealth.
Paul F. Markham,
Before HENNESSEY, C. J., and ABRAMS, NOLAN and
O'CONNOR, JJ.
NOLAN, Justice.
We are
asked to decide two issues in this case: (1) whether the Commonwealth has a
right of interlocutory appeal to the full court after a single justice of the
court has allowed the defendant's motion to suppress evidence, and; (2) whether
the single justice committed reversible error in allowing defendant's motion to
suppress. We rule that the Commonwealth
has a right of interlocutory appeal to the full court under the circumstances
of this case and that [385
(1) 1.
Right of the Commonwealth to appeal.
After the defendant had been indicted for the crimes of possession of
cocaine and of marihuana with intent to distribute; and for knowingly or
intentionally manufacturing, distributing, dispensing, or possessing "with
intent to manufacture, distribute or
dispense more than 50 lbs. but less than 100 pounds of marijuana, a controlled
substance, as defined in Chapter 94C," he filed a motion to suppress all
the evidence obtained as a result of the execution of a search warrant issued
by the assistant clerk of the Gardner District Court. The trial judge denied the motion and the
defendant applied for leave to appeal to this court. A single justice of this court ruled that the
administration of justice would be facilitated by the appeal and allowed the
application. The single justice heard
the matter and concluded that the motion to suppress should have been
allowed. His order reads in part:
"(T)he order denying the motion to suppress is vacated and an order shall
be entered in the Superior Court allowing the defendant's motion to
dismiss." It seems clear that the
reference to the defendant's motion to dismiss should be read as a reference to
the defendant's motion to suppress. The
Commonwealth applied for leave to appeal from the order of the single justice,
and the defendant filed a motion to dismiss the Commonwealth's appeal. He argues that our recent decision in
Commonwealth v. Dunigan, ‑‑‑
Furthermore,
this case presents one of those exceptional circumstances in which
interlocutory review is recommended because the order of the single justice, if
erroneous, "might be irremediable, and possibly not curable ... since the
(Commonwealth) could not thereafter be placed in statu
quo." Gilday
v. Commonwealth, 360 Mass. 170, 171, 274 N.E.2d 589 (1971), quoted with approbation
in Dunigan, 384 Mass. at ‑‑‑, at
1543, 422 N.E.2d 1358. Accordingly, we
hold that in the particular setting of this case, the defendant's motion to
dismiss the Commonwealth's appeal should be denied.
(2) 2.
Motion to suppress. The only issue before
the single justice was the adequacy of the search warrant and its supporting
affidavit, the material parts of which are set forth in the margin. ([FN1])
The vice of this affidavit is reliance on
information[385 Mass. 805]
not from the "reliable informant," but from the informant's
friend. Though the informant's
reliability would seem to pass constitutional muster under Aguilar v. Texas,
378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d
723 (1963), the information concerning the purchase was furnished by the
informant's friend who was present, and not by the informant. The affidavit is silent as to the reliability
of the friend. For this reason, the
affidavit is defective. See and contrast
Commonwealth v. Snow, 363 Mass. 778, 783, 298 N.E.2d 804 (1973). The single justice's explanation of the
affidavit is on the mark when he says in his order: "The affidavit states
that the informant's friend purchased cocaine and asked when 'it' could
purchase more. The second and third
references to 'it' can only mean the informant's friend. 'It' must mean the informant's friend in all
references to 'it'. The affidavit fails
to set forth any underlying facts from which the informant with personal
knowledge concluded that the contraband was at the defendant's apartment." We agree with his analysis.
Therefore,
the order of the single justice allowing the defendant's motion to suppress is
affirmed.
So
ordered.
(FN1.) The supporting affidavit is quoted in
pertinent part, as follows: "I received information from a reliable
informant who stated that James Kuszewski is selling
cocaine from his first floor apt. at 27 Upsula St.
Gardner, Mass. This reliable informant
has given me information in the past which led to the arrest and conviction of
Richard Morin. Richard Morin was
arrested on March 21, 1980 for poss. of a cont. sub. (cocaine) w/intent to distribute. Seven grams of cocaine was confiscated during
the arrest. Richard Morin was later
convicted in Worc.
Superior Court for poss. of a cont. sub.
(cocaine) w/intent to distribute.
This arrest and conviction was due to the information this reliable
informant gave to me.
"This
reliable informant stated on or about 05/12/81 'it' was at James Kuszewski's apt. at 27 Upsula St.
first floor. While at this apt. this
reliable informant's friend bought one half ounce of cocaine for $1100.00. This reliable informant's friend asked when
'it' could buy some more cocaine. James Kuszewski stated to his reliable informant's friend that
'it' could buy more cocaine either Thursday afternoon (05/14/81) or Fri.
morning (05/15/81). James Kuszewski stated he keeps a half ounce of cocaine in the
apt. at all times. James Kuszewski then took a half ounce of cocaine out of the
refrigerator.
"With
this information I respectfully request the court to issue me a search warrant
for 27 Upsula St. first floor. Also for the person of James Kuszewski."