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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. Luce, 34 Mass.App.Ct.
105 (1993)
Appeals Court of Massachusetts, Middlesex.
No. 91‑P‑1406.
Argued
Decided
Michael J. Traft, for
defendant.
Jennifer R. DeFeo (Daniel
A. Less, Asst. Dist. Atty., with her), for Com.
Before BROWN, KASS and
GREENBERG, JJ.
KASS, Justice.
There were
three informers upon whom the police relied in applying for a search
warrant. Whether their information, in
the aggregate, justified the issuance of a search warrant is the principal
question that the defendant raises on his appeal from convictions of
trafficking in more than 200 grams of cocaine (G.L.
c. 94C, § 32E[b][4] ) and illegal possession of hypodermic needles (G.L. c. 94C, § 27[a] ). [34 Mass.App.Ct.
106] In addition, the defendant
claims exculpatory information was intentionally withheld from the affidavit
made in support of the application for a search warrant; that certain inculpatory
statements should not have been received in evidence because induced by false promises
of leniency; and that the government
improperly backed away from a plea agreement.
We resolve these issues against the defendant and affirm the judgments
of conviction.
[1] 1. Adequacy of the affidavit made in
application for a search warrant.
The government's case rested primarily on
evidence seized by police in a search made on September 29, 1988, of the
defendant Luce's Stoneham apartment:
995.4 grams of cocaine; $29,000
in cash; thirty‑two hypodermic
needles and thirty‑two syringes; an
OHAUS triple beam scale; and steroids.
Luce's position in a timely motion to suppress (further pressed by a
motion to reconsider) and now on appeal is that none of the informers had
sufficient basis of knowledge and indicia of reliability to justify a
magistrate (in this case a District Court judge) in issuing a search
warrant. See Aguilar v. Texas, 378 U.S. 108, 113‑115, 84 S.Ct. 1509, 1513‑1514, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 415‑416,
89 S.Ct. 584, 588‑589, 21 L.Ed.2d 637 (1969);
Commonwealth v. Upton, 394 Mass. 363, 374‑376, 476 N.E.2d 548
(1985). Each informer met at least one
of the requisite criteria established in those decisions, and the question to
some degree is whether an informer who is infirm as to one criterion may be
buttressed by a second or third informer who supplies the missing attribute but
himself is deficient in the other criterion.
Black
(FN1) was an informer whom Trooper Kiley, a member of
the Middlesex County narcotics task force, had been cultivating for some
time. Kiley
had learned a good deal about Black; he
was not an unknown tipster. Black had
admitted to Kiley extensive involvement in narcotics
distribution, particularly cocaine.
Although Black claimed to have removed himself from active engagement in
cocaine distribution, he had maintained, according to Kiley's
affidavit, "social contact [34 Mass.App.Ct. 107]
with his narcotic[s] contemporaries of the recent past." Black provided Kiley
with a list of persons with whom he had been involved in connection with
cocaine distribution, including descriptions of how they worked. Several of those persons were known to Kiley, and he found Black's information to be accurate,
current, and consistent with what he knew about the methods and operations of
those drug dealers. Kiley
further checked the information provided by Black with his circle of narcotics
investigators, and they corroborated as accurate most of the information Black
had supplied.
As for the
defendant Luce, Black described him as a major cocaine trafficker who operated
a distribution network out of his residence in Stoneham. Black had himself, during the preceding six
months, completed large quantity purchases of cocaine from Luce at the rate of
at least one a week. The last of those
transactions had occurred within ten days.
Within the past five days, in a series of conversations, Luce had told
Black that he would be picking up a large quantity of cocaine in the middle of
the week of September 25, 1988. Once the
shipment was in, the two could arrange to complete another sale and purchase.
Those
conversations were consistent with the manner in which Black and Luce did
business. When the product was
available, Luce would call, and he and Black would negotiate quantity, price,
and meeting locations. Most commonly,
the drug and money changed hands in Luce's apartment at 12C Mosley Park,
Stoneham, during the evening or later.
Within the past seven days (referring to the date of Kiley's
affidavit), Black had been in Luce's apartment, which he described as a two‑story
townhouse, with a ground floor main entrance.
On the occasion of that recent visit, Black had observed cocaine in the
apartment, displayed by Luce as available for sale. Within the past five days, Black said, he had
met Luce and Luce claimed to have procured a large supply of cocaine, a portion
of which he would hold at his Stoneham place for Black to buy. Black said that, as he had not yet made a
purchase, the cocaine reserved for him would still be [34 Mass.App.Ct. 108] at Luce's Stoneham apartment.
He gave Trooper Kiley the telephone numbers he
used to get in touch with Luce.
There is
sufficient specific information in Black's observations and his communications
with the defendant to satisfy the "basis of knowledge" category of
the Aguilar‑ Spinelli
tests. See Commonwealth v. Shea, 28 Mass.App.Ct. 28, 30‑31, 545 N.E.2d 1185 (1989). Measured by the most common indicator of
"veracity," a history of dispensing information to the government
which led to convictions or seizure of narcotics, (FN2) Black was deficient as
an informer; he had no such
history. Moreover, the motion judge
observed, Black's veracity qualification was further put in doubt by the
seeming conflict between his announced retirement from drug traffic and his
very recent buy from Luce. Seen in the
light of less standard indicators, however, Black began to look better on the
veracity meter. Trooper Kiley had, after all, verified much of the information
furnished by Black about drug dealers other than Luce. Corroborative efforts by the police may boost
to passing level an otherwise weak grade on the Aguilar‑ Spinelli tests.
Commonwealth v. Robinson, 403 Mass. 163, 166, 526 N.E.2d 778 (1988).
Commonwealth v. Parapar, 404 Mass. 319,
323, 534 N.E.2d 1167 (1989). Black's
veracity quotient is further enhanced by statements against his penal interest,
his admissions of his own recent involvement with sizeable cocaine
transactions. See id. at 322, and cases there cited.
In this regard it is significant that Trooper Kiley
not only knew the identity of his informer but had come to know Black
reasonably well. Compare Commonwealth v. Allen, 406 Mass. 575,
579‑580, 549 N.E.2d 430 (1990), in which the identity of an informer
identified as informant C was not known to the police.
There were
two other informers, whom we shall call Red and White. Red was a long‑time informer, whose
information during the eighteen months before the application for a search
warrant had led to several convictions and seizures of drugs. He, thus, did well on the veracity test. See
Commonwealth v. Byfield, 413 Mass. 426, 431, 597
N.E.2d 421 (1992). Red corroborated[34 Mass.App.Ct.
109]
that Luce dealt in cocaine and added that he, Red, had, indeed, engaged
in five cocaine transactions with Luce, the most recent, however, having
occurred six months earlier. Luce, Red
told the police, had an established reputation within the "cocaine
distributors grapevine" as a substantial dealer. Although strong on the veracity test, Red was
tender on the "basis of knowledge" requirement. Information that Red had on the basis of his
own observation about cocaine in the possession of Luce for purposes of sale
was relatively stale because it was six months old. The information given by Red was somewhat
freshened by his report of a "recent" conversation with Luce, in
which Luce invited Red to do cocaine business with him. Although that conversation was not attached
to any date, when the information indicates engagement in protracted and
continuous drug distribution, precise time is of less significance.
Commonwealth v. Fernandes, 30 Mass.App.Ct. 335, 342, 568 N.E.2d 604 (1991).
White, the
third informer, had also compiled a record of having supplied information to
the police that led to the seizure of cocaine within the preceding year. See
Commonwealth v. Perez‑Baez, 410 Mass. 43, 46, 570 N.E.2d 1026
(1991). He gave information to a United
States Drug Enforcement Administration agent, with whom Trooper Kiley spoke, about Luce's cocaine distribution
activity. White had not, however, bought
from Luce for eight months. White knew
Luce primarily as a dealer in Somerville, although White said Luce had told him
his "stash pad" was in Stoneham.
This information was in certain respects more seriously stale than that
furnished by Red.
The
defense has consistently attacked Trooper Kiley's
affidavit on the ground that it rested on informers, each of whom was deficient
in some respect under the Aguilar‑ Spinelli standards.
Analysis discloses that those deficiencies are not so stark as the
defense paints them. Black's lack of
track record as a successful informer was considerably compensated for by the
success of Kiley in verifying with the other
informers and the narcotics agents what Black had told him about Luce. Although their transactions with Luce had [34 Mass.App.Ct.
110] occurred some time previously,
Red and White reported more recent conversations to the police which described
Luce as active in narcotics trade and his Stoneham apartment
as the home base of his operations.
Even
assuming that each informer alone was vulnerable as not satisfying one of the
two broad requirements prescribed by
Aguilar‑ Spinelli, the strengths of Black's
information reinforced what was weak in the information of Red and White, its
lack of up‑to‑the‑minute quality, and the overlapping
information of Red and White supplied the factor otherwise absent as to Black,
that he could be relied upon. What Aguilar‑ Spinelli
requires is not the filling of pigeonholes but an affidavit which states
information upon which a neutral and detached magistrate may make a
determination of probable cause. That
information can consist of mutually corroborative material, as was furnished in
this case. The corroborating material
must correspond in significant detail, but that requirement is satisfied here
by the correspondence as to methods of operation and location of the operating
base. See Commonwealth v. Truax, 397 Mass. 174,
178, 490 N.E.2d 425 (1986); Commonwealth v. Rojas, 403 Mass. 483,
488, 531 N.E.2d 255 (1988); Commonwealth v. Parapar,
404 Mass. at 320‑321, 534 N.E.2d 1167.
2. Defense assertions of omissions in the
affidavit and entitlement to Franks
hearing. The first motion to
suppress the incriminating evidence seized in the search of Luce's apartment
was denied January 30, 1990. A first
motion for reconsideration of that ruling and its disposition require no
comment. In January, 1991, the defendant
again moved to reconsider the suppression ruling, this time on the ground that
Thomas L. Doud, an agent of the United States Drug
Enforcement Administration, who was alluded to in the search warrant affidavit,
had omitted significant exculpatory information. The defense said it had developed through
discovery that: a pen register telephone
surveillance of Luce's numbers had yielded nothing of consequence; that drug purchase attempts by police agents
had been unsuccessful; and that police
surveillance of the defendant himself had failed to turn up anything incriminating.
[34 Mass.App.Ct.
111] The judge interrogated Agent Doud in camera because Doud had
been the conduit for the information attributed to the informer we have called
White. In so doing, the judge adhered to
the procedures set out in Commonwealth v.
Amaral, 407 Mass. 511, 520‑522, 554 N.E.2d
1189 (1990), for balancing a defendant's right of confrontation with
maintaining the anonymity of confidential informants. On the basis of his inquiry, the judge made
findings that Agent Doud had no knowledge of an
unsuccessful effort to buy drugs from Luce.
He found that Doud was aware of the pen
register and that this surveillance device registered calls by the defendant to
individuals recognized by law enforcement officers as involved with
narcotics. Doud,
the judge found, was a percipient witness to Luce's appearance at the Stoneham
apartment.
[2]
Nothing about the judge's findings, to which we owe the usual deference,
suggests distortion in the information furnished to Trooper Kiley
or in the affidavit in support of a search warrant which Kiley
made. An affiant who sets out
information adding up to probable cause to make a search is not bound to recite
investigative efforts that did not pan out.
[3] On
appeal, the defense claims it was entitled to an evidentiary hearing and that
the in camera hearing was unsatisfactory.
It is sufficient to answer that when the judge undertook to conduct an
in camera hearing, the defense made no objection or argument that it should be
allowed to examine Agent Doud. Nor has the defendant on appeal identified
any place in the record where he pressed on the trial judge the right to such a
direct examination; the issue appears to
have been invented on appeal. In any
event, the record discloses no preliminary showing on behalf of the defendant,
let alone a substantial one, that the affidavit included false statements made
knowingly and intentionally, or with reckless disregard for the truth. See
Franks v. Delaware, 438 U.S. 154, 155‑156, 98 S.Ct.
2674, 2676‑2677, 57 L.Ed.2d 667 (1978); Commonwealth v. Blake, 413
Mass. 823, 825‑826, 604 N.E.2d 1289 (1992).
[4] 3. Admission of inculpatory
statements by defendant.
Immediately after the police
entered his premises with a search [34
Mass.App.Ct. 112]
warrant on September 29, 1988, Luce, who had been discovered with half a kilo
of cocaine on his person, discussed cooperation with the police and benefits he
might gain from cooperation. The trial
judge found that Luce was informed of his Miranda rights and understood
them. In later conversations with the
government, Luce said he "moved" about one kilo per week to a
preferred customer base of from five to ten people. The judge found that the defendant
communicated voluntarily with the government.
What Luce said did not become subject to exclusion merely because no
plea bargain matured. The judge
expressly found that the meetings between the defendant and his counsel and
government officers did not constitute plea bargaining that would be
inadmissible under Mass.R.Crim.P. 12(f), 378 Mass.
870 (1979). It was also dispositive of the defendant's motion to exclude his inculpatory statements that the motion was not accompanied
by an affidavit as required by Mass.R.Crim.P.
13(a)(2), 378 Mass. 871 (1979). See Commonwealth v. Samuel, 398 Mass. 93,
94‑95, 495 N.E.2d 279 (1986).
4. Other points. To be sure, had the government promised the
defendant favorable treatment in return for information, resulting inculpatory statements might not be considered to have been
made voluntarily. Commonwealth v. McCauley, 391 Mass. 697,
702, 464 N.E.2d 50 (1984). Here,
however, the trial judge, after listening to the testimony of witnesses, found
that no promise of that kind had been made.
That is a resolution within the province of the trial judge and we do
not disturb it. Ibid.
We do not consider the argument of the defendant that it was error on
the part of the trial judge to hold in abeyance a defense motion to dismiss
based on asserted prosecutorial misconduct.
The defendant did not object to that procedure at trial and may not now
raise the point on appeal.
Judgments affirmed.
(FN1.) The names of the informers are
pseudonyms.
(FN2.)
See, e.g., Commonwealth v. Shea, 28 Mass.App.Ct. 28, 31,
545 N.E.2d 1185 (1989); Commonwealth v. Mendez, 32 Mass.App.Ct. 928, 928‑929, 587 N.E.2d 248 (1992).