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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. Luna, 410
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert L. Sheketoff,
Gary A. Nickerson,
Julia K. Vermynck, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and
O'CONNOR, JJ.
WILKINS, Justice.
Each
defendant was convicted of trafficking in cocaine by possession with intent to
sell fourteen or more, but less than twenty‑eight, grams of cocaine or a
mixture containing cocaine. Pursuant to
a search warrant, the
1. The
defendants argue that there were two apartments in the house, although the
application for the search warrant and the search warrant itself listed the
premises as "
On July
27, 1988, Mark A. Delaney, the Barnstable police officer who was later to submit the affidavit in support of the search
warrant in this case, made a report of investigation in which he set forth
information received from a confidential informant, not further
identified. The informant had said that
one Jeffrey Kearney had given the informant information concerning the sale of
cocaine from the Luna residence at 137 Cammett Road, Marstons Mills. Kearney had said that he had bought an ounce
of cocaine from Jorge in Jorge's downstairs apartment on July 7, 1988, and that
Jorge had had a "sizable amount of cocaine" in his downstairs
apartment. The informant said that from
other sources, not disclosed, he knew that Jorge and his father, whom the
informant called Carlos, were both involved in cocaine trafficking in the
middle Cape Cod area. From a source not
disclosed, the report of investigation stated that "both the LUNAs operate
and distribute cocaine from both their separate apartments at 137 Cammett Rd., Marstons
Mills, MA. Jorge LUNA occupies the
basement area and Carlos LUNA occupies the upper area of the residence."
The
defendants, each of whom had standing to challenge the seizure of all evidence
found in the search (Commonwealth v.
Amendola, 406 Mass. 592, 601, 550 N.E.2d 121 [1990] ), rely heavily on this
report to support their argument that Officer Delaney knew, but did not
disclose, that there were two apartments in the house when he later submitted
his affidavit to the magistrate who issued the search warrant. Jose, the father, points out that the report
states that Jorge's father is named Carlos, an error that Delaney eliminated in
the affidavit by attributing the source of the name Jose to the informant. That error, the failure to disclose it, and
its correction are not significant to this case. The error casts doubt on the reliability of
the informant, and suggests that Delaney was willing to adjust the informant's
information to the truth. [410 Mass. 134] However, probable cause to search was established by other
information in the warrant, and the important point that father and son were
engaged in the cocaine business was consistent throughout the report and the
later affidavit in support of the search warrant.
[1] Before
we discuss the issue of the two separate apartments further, we shall summarize
that information in the August 12, 1988, affidavit on which the search warrant
was based which provided probable cause to search the premises. On August 4, 1988, confidential informant # 2
had purchased one‑eighth of an ounce of cocaine from Jose at the premises
in a controlled purchase, supervised by the police, using bills whose serial
numbers were set forth in the affidavit.
On August 11, 1988, the same informant made a similar controlled
purchase of cocaine from Jose at the premises, using bills whose serial numbers
were also set forth. Standing alone,
this information provided probable cause to search the house.
Delaney
then summarized in the affidavit the information that he had received from the
first confidential informant, whose reliability was not supported by any
information in the affidavit and all of whose information was second‑hand. The affidavit refers to the fact that Jorge
occupied the basement area and that Jose occupied the upper area of the
residence. Delaney, who largely followed
the language in his earlier report, omitted from the affidavit, however, all
references to a "downstairs apartment" and to "separate apartments." Delaney added that in 1987 Jorge had been
convicted of two counts of distributing cocaine.
[2] The
defendants argue that Delaney's failure to disclose in the affidavit that there
were two separate apartments requires the suppression of the evidence seized in
the search. The Commonwealth, citing Maryland v. Garrison, 480 U.S. 79, 85‑86,
107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987), properly grants that, if the police
knew or should have known that, at the time the warrant was issued, there was a
completely separate downstairs apartment, they would have had to demonstrate to
the magistrate probable [410 Mass.
135] cause to search each
apartment. See Commonwealth v. Erickson, 14 Mass.App.Ct. 501, 506‑507, 440 N.E.2d 1190 (1982). (FN2)
[3] The
Commonwealth argues, with some justification, that the defendants did not
preserve or seriously press this ground for suppression of the evidence seized
in the search. Jorge's motion to
suppress refers to the use of "false information" to obtain the
search warrant, but he did not argue the warrant's lack of specificity in the
description of the premises in his memorandum in support of that motion. Jose more clearly referred to the issue in
his motion to suppress by alleging that the application and warrant failed to
distinguish between the two apartments and to limit the search to Jorge's
apartment. In general, the defendants
argued issues to the motion judge that lacked merit, as the judge ruled. Those arguments are not even advanced on
appeal. The issue of two separate
apartments was presented to the judge as somewhat of an afterthought, but the
judge passed on it from the bench. (FN3)
The
defendants present their argument principally on the basis that the police knew
that there were two apartments and obtained a search warrant as if for a single‑family
residence without disclosing the existence of separate units. (FN4)
The only basis for this assertion is the information furnished by the
first informant, whose reliability is not demonstrated in the report or in the
application for the warrant. Moreover,
that informant is said to have said that both father and son distribute cocaine
"from both their separate apartments." If [410
Mass. 136] that were so, there would
have been probable cause to search both apartments on a showing of probable
cause to search because of the activities of either defendant. Moreover, the police may have been in genuine
doubt that there were two distinct apartments.
Informant # 2, who was a witness at trial, testified that Jose went to
the lower level, which informant ## 1 said was Jorge's separate apartment, to
obtain the cocaine that Jose sold in one of the controlled purchases. That conduct tends to show that the lower
level was not a separate apartment, as the first informant suggested. We are unable to conclude that the police
knew that there were two distinct apartments in the house.
It is a
question of fact whether the police reasonably should have known that there
were two distinct apartments in the house entitled to separate treatment for
the purpose of search and seizure analysis.
They may have at least been on notice and, if so, they would be bound by
what a reasonable inquiry would have disclosed.
There was, as we have said, some evidence that the police had been told
that there were two apartments. If Jorge
did have a separate apartment, the affidavit in support of the search warrant
did not demonstrate probable cause to search it because only Jose was said to
have been involved in the controlled purchases.
If, however, the police did not know and reasonably could not have known
that there were two distinct apartments in the house, but had probable cause to
believe that cocaine was being sold from the house, a warrant to search the
entire house would not have violated the particularity requirement of the
Fourth Amendment, art. 14 of the Massachusetts Declaration of Rights, or G.L.
c. 276, § 2. It would have been lawfully
issued in the circumstances, and the defendants do not argue otherwise (and do
not challenge the manner of execution of the warrant). See
Commonwealth v. Carrasco, 405 Mass. 316, 322‑325, 540 N.E.2d 173
(1989). Cf. Maryland v. Garrison, supra 480 U.S. at 88 n. 13, 107 S.Ct. at
1018 n. 13. ("We expressly
distinguish the facts of this case from a situation in which the police know there
are two apartments on a certain floor of a building, and have probable cause to
believe that drugs are being sold out of that floor, but do not [410 Mass. 137] know in which of the two apartments the illegal transactions are
taking place. A search pursuant to a
warrant authorizing a search of the entire floor under those circumstances
would present quite different issues from the ones before us in this
case").
[4] If
they had asked for an evidentiary hearing, the defendants would have been
entitled to one on the question whether the police reasonably should have known
that there were two separate apartments in what appeared to be a single‑family
house. When the motions to suppress were
argued before the motion judge, neither defendant requested an evidentiary
hearing on the particularity of the description of the premises to be searched
pursuant to the warrant. Neither
defendant offered any evidence on this issue, beyond Delaney's report of
investigation and the affidavit in support of the search warrant. A request for such a hearing, advanced for
the first time on appeal, comes too late.
The burden was on the defendants, in challenging the seizure of evidence
pursuant to a search warrant, to show that the police reasonably should have
known that there were two separate apartments in what appeared to be a single‑family
house. See Commonwealth v. Reynolds, 374 Mass. 142, 150, 370 N.E.2d 1375
(1977).
2. We come
to Jose's other challenges. Apart from
the police's possible knowledge or their being on notice concerning the
existence of two apartments in the house, Jose did not present any basis for
having an evidentiary hearing concerning the contents of the affidavit in
support of the search warrant. He made
no substantial preliminary showing of a knowing or intentional false statement
or one made with reckless disregard for the truth warranting a Franks hearing. See
Franks v. Delaware, 438 U.S. 154, 155‑156, 98 S.Ct. 2674, 2676‑2677,
57 L.Ed.2d 667 (1978); Commonwealth v. Ramos, 402 Mass. 209,
215, 521 N.E.2d 1002 (1988).
Any
evidentiary hearing on the matter of the specificity or particularity of a
place to be searched would not have been a
Franks‑type hearing. That
hearing would have dealt with what the police knew or should have known, a
negligence standard, and would not have had to deal with the substantially[410 Mass. 138] higher test of intentional
or reckless police conduct that the
Franks standard created. (FN5)
[5][6] 3.
Confidential informant # 2, Brendon Carron, testified that he had discussions
with State police as to whether he would be entitled to a finder's fee if the
Luna house were forfeited in a pending Federal court proceeding. He said that it was possible but not definite
that, if Jose, the owner of the house, were found guilty, he, Carron, might
receive an unstated portion of the proceeds of the sale of the forfeited
house. Counsel for Jose objected at a
bench conference that he had not been told of this circumstance before trial in
response to his request for promises, rewards, and inducements. The prosecutor replied that any inducement
concerning the forfeiture came from the Federal government, not from his
office. (FN6)
[7][8]
Jose contends that a contingent fee witness such as Carron should be barred
from testifying at all, a point that defense counsel raised by a motion to
strike Carron's testimony. Carron's
testimony was crucial to the
Commonwealth's case because, although it was corroborated in several other
important respects, his testimony was the only direct evidence that Jose had
sold cocaine at the house. (FN7) Defense counsel fully [410 Mass. 139]
developed the possibility that Carron named Jose as the seller of the drugs in
order to receive a reward from the sale of Jose's forfeited house.
We have
recently recognized that, with proper safeguards, testimony of a witness
pursuant to a plea agreement, founded on his promise of truthful cooperation,
and the plea agreement itself are admissible in a criminal trial. See
Commonwealth v. Ciampa, 406 Mass. 257, 261, 264‑266, 547 N.E.2d 314
(1989). There is some similarity between
the prospective reward of favorable treatment of a witness in a future
sentencing proceeding and the prospective reward of compensation to a witness
from the proceeds of assets forfeited following a conviction obtained through
that witness's testimony. The existence
of the prospective reward must be fully disclosed to the jury so that,
following full cross‑examination, the jury can measure the witness's
testimony in light of the apparent inducement.
See Commonwealth v. Koulouris,
406 Mass. 281, 286, 547 N.E.2d 916 (1989).
We think that was adequately done here, (FN8) particularly where, as
Carron testified, there was no agreement, but only a possibility of a reward. Compare
Commonwealth v. Rosado, 408 Mass. 561, 563‑564, 562 N.E.2d 790
(1990). If there had been an explicit
promise of compensation to Carron from forfeited assets, assets whose
forfeiture would follow without relitigation of the defendant property owner's
guilt (Commonwealth v. Koulouris, supra
), the witness's reward would, in effect, have been contingent on a guilty
verdict, a circumstance that would raise special problems. See
Commonwealth v. Ciampa, supra 406 Mass. at 261‑262 n. 5, 547 N.E.2d
314. This is not like the Ciampa case where testimony was
presented pursuant to a plea agreement, founded on a promise of truthful
cooperation. There, the presentation of
the witness and the truthfulness provision arguably constituted an implied vouching
by the government for the witness's veracity.
No similar risk of the appearance of vouching by the government exists
in this case.
[9][10] [410 Mass. 140] In the future, a specific instruction that the jury weigh such a
witness's testimony with care should be given on request. Id. at 266, 547 N.E.2d
314. See United States v. Cresta, 825 F.2d 538, 546 (1st Cir.1987), cert.
denied sub nom. Impemba v. United States, 486 U.S. 1042,
108 S.Ct. 2033, 100 L.Ed.2d 618 (1988).
No request for such an instruction was made here, and the absence of
such an explicit instruction did not create a substantial risk of a miscarriage
of justice. (FN9) Cf.
Commonwealth v. Colon, 408 Mass. 419, 444, 558 N.E.2d 974 (1990) (review
under G.L. c. 278, § 33E).
[11] 4.
Jose objects to the admission of evidence of Carron's two controlled purchases
of cocaine from him, arguing that that evidence prejudicially showed prior bad
acts. That evidence was relevant to the
issues of Jose's involvement in the sale of cocaine from the house where other
cocaine was found and to his participation in a joint venture with Jorge. It was admissible in the judge's discretion,
accompanied, as here, by instructions limiting the jury's use of that evidence. See
Commonwealth v. Helfant, 398 Mass. 214, 224‑225, 228, 496 N.E.2d 433
(1986);
Commonwealth v. Delrio, 22 Mass.App.Ct. 712, 719 n. 11, 497 N.E.2d
1097 (1986).
Judgments affirmed.
(FN1.) Commonwealth vs. Jose Luna. Jose is the
father of Jorge.
(FN2.)
The defendants also rely on Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in
challenging the failure of the affidavit to disclose the existence of two
apartments, a contention we shall discuss later.
(FN3.)
The judge acknowledged that there were two separate areas in the 137 Cammett Road
house but, "since it was a father and son living there, and it is
described as a single family house, they may or may not have made a distinction
of two separate and lockable units within the house, but I don't know that that
is fatal to it at all."
(FN4.)
They do not present the argument that, even if the search warrant was valid
when issued, the police unexpectedly came upon and identified a separate
residential unit that they had no right to search. See
Maryland v. Garrison, supra.
(FN5.)
As we have said, the defendants did not undertake to prove by evidence, beyond
the application for the warrant and investigation report, that the police knew
or reasonably should have known that there were two distinct apartments, and
those documents did not satisfy the defendants' burden.
(FN6.) Although we reject the prosecutor's
claim that he need not disclose known inducements from any other source, it is
apparent from the transcript that Jose's counsel knew of the Federal forfeiture
proceeding and seemed well prepared to deal with the question of benefits that
Carron might obtain if Jose were found guilty.
Counsel was eager to develop that possibility before the jury in order
to show Carron's bias and reason to lie.
The defendant has not shown that he was prejudiced by the prosecution's
failure to disclose the possible reward.
The judge did not abuse his discretion in denying Jose's motion for a
voir dire of Carron concerning the inducement that a Federal forfeiture offered
to him.
(FN7.) Carron testified that he had seen Jose
many times before. There was no question
of identifying Jose, but only the important question whether Jose was in fact
the seller in the controlled purchases.
(FN8.) Jose's counsel argued to the jury in
his closing that Carron lied about Jose in order to get "a split of the
money" if Jose's house is taken away from him.
(FN9.) The judge did tell the jury that, in
deciding whether to believe a witness, they could consider the witness's motive
for testifying and whether he had an interest in the outcome of the case.