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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
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Commonwealth v. Melendez, 407
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Sean J. Gallagher, Asst. Dist. Atty., for Com.
Andrew L. Mandell,
Worcester, for Jorge Melendez.
Charles P. Ball,
Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY,
JJ.
LIACOS, Chief Justice.
A judge in
the District Court allowed the defendant's motion to suppress the fruits of
a search conducted by
On
"I,
Daniel F. O'Connor being duly sworn, depose and say:
"1. I
am currently a Detective in the Worcester Police Vice Squad, a position of which
I have continuously held for the past four years. Presently I am assigned to the District
Attorney's Drug Task Force located at
"2. I
have information based upon a confidential and reliable informant. For the purpose of the affidavit I will
hereinafter refer to this informant as CRI‑1. CRI‑1 is a person who has given your
affiant information in the past which has proved to be accurate and true. CRI‑1 has given information that has
led to the arrest of persons in the city of
"On
July 2, 1986 Jorge Melendez was arrested by Troopers Jeffrey Stone and Ronald
Ford for possession of cocaine with intent to distribute. Melendez later plead guilty to possession of
cocaine in Worcester Superior Court and placed on two years probation.
"On
this date a check with the Great Brook Valley housing authority as to the
residents of 19 Great Brook Valley Ave., Apt. # 3 revealed that this apartment
is leased to Nerida [sic ] Cruz."
A
magistrate issued a warrant to search the apartment, and on May 7, 1987, the
police seized, among other things, plastic bags and paper packets containing
white powder believed to be cocaine. The
judge granted the defendant's motion to suppress the evidence seized, ruling
that the affidavit failed to meet the requirements of Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985).
"Under
art. 14 of the Massachusetts Declaration of Rights, a magistrate, before issuing
a search warrant, must determine that probable cause exists."
Commonwealth v. Rojas, 403 Mass. 483, 485, 531 N.E.2d 255 (1988),
citing Commonwealth v. Upton, supra. "In
Upton, we held that, under art. 14 ... the test for determining probable
cause in cases involving unnamed informants incorporates the principles
developed under Spinelli
v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969), and Aguilar v. Texas,
378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964)" (footnote omitted). Commonwealth v. Saleh, 396 Mass. 406, 409, 486 N.E.2d 706
(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 [407
Mass. 56] 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, supra 394 Mass. at
374‑375, 476 N.E.2d 548.
The
affidavit in this case failed to satisfy the veracity test. (FN2)
The Commonwealth, in arguing that the informant was reliable, relies
principally upon certain statements in the affidavit which indicate that he (or
she) purchased and used cocaine. The
Commonwealth asserts that these remarks constituted statements against penal
interest and thus buttressed the informant's veracity. We disagree.
[1][2] In
order for a statement to be considered by the magistrate to be a statement
against penal interest, there must be information in the affidavit which tends
to show that the informant would have had a reasonable fear of prosecution at
the time that he made the statement. See
1 W.R. LaFave, Search and Seizure § 3.3(c), at 645‑646
(2d ed. 1987); People v. Johnson, 66 N.Y.2d 398, 497
N.Y.S.2d 618, 488 N.E.2d 439 (1985);
Comment, The Supreme Court, 1970 Term, 85 Harv.L.Rev.
53, 60 (1971); Note, Probable Cause and
the First‑Time Informer, 43 U.Colo.L.Rev. 357,
367 (1972). "Courts ... should not
utilize the admission against‑penal‑interest concept in a
blunderbuss fashion, but instead should assess in a more careful fashion,
preferably upon a full disclosure by the police of all relevant circumstances,
what the significance of that admission is in the context of the particular
case." 1 W.R. LaFave, supra.
(FN3) [407 Mass. 57] See People v. Johnson,
supra ("Such admissions are not guarantees of truthfulness and they
should be accepted only after careful consideration of all the relevant
circumstances of the case indicates that there exists a basis for finding
reliability"). Statements may be
more credible if there is a threat of police retaliation for giving false
information. See 1 W.R. LaFave, supra at
649‑650.
For
example, in Commonwealth v. Parapar, 404 Mass. 319, 534 N.E.2d 1167 (1989),
immediately after being arrested for cocaine trafficking and after the police
had made three undercover cocaine purchases, the informant told the police
where he had obtained the cocaine. In
these circumstances, one could infer that the informant had an actual fear of
being prosecuted. Similarly, in Commonwealth v. Vynorius,
369 Mass. 17, 336 N.E.2d 898 (1975), the affiant police officer caught the
informant red‑handed, his pockets stuffed with marihuana. After the informant confessed his drug
purchase, he turned over the contraband to the police officer and gave him the
information that the officer used as the basis for the affidavit.
In
contrast, the statement in this case did not indicate any circumstances which would cause the informant to have a reasonable
fear of prosecution. The statement was
unaccompanied by any physical evidence.
Indeed, it is likely that the uncorroborated confession, in and of
itself, would have been insufficient to prove guilt. Commonwealth v. Leonard,
401 Mass. 470, 472, 517 N.E.2d 157 (1988).
The likelihood of prosecution was rather remote. One might infer in a case like this that the
informant was a "protected stool pigeon" whose inaccuracies or
indiscretions are tolerated on a continuing basis in exchange for information. See 1 W.R. LaFave, supra at 647. See also Comment, The Supreme Court, 1970
Term, 85 Harv.L.Rev., supra at 60. In such a
case, he would have little to fear from giving false information. See 1 W.R. [407 Mass. 58] LaFave, supra at
647. (FN4) See Note, Probable Cause and the First‑Time
Informer, 43 U.Colo.L.Rev., supra at 367. (FN5)
[3] The
Commonwealth additionally argues that the fact that the defendant had once
pleaded guilty to cocaine possession corroborated the informant's
veracity. We disagree. "A defendant's criminal history may be
factored into a probable cause determination as corroboration of an informant's
tip, but only if the history is sufficiently recent and similar to the crime
charged to demonstrate that 'the defendant was not averse' to committing such a
crime." Commonwealth v. Allen, 406 Mass. 575,
579, 549 N.E.2d 430 (1990), quoting
Commonwealth v. Germain, 396 Mass. 413, 418, 486
N.E.2d 693 n. 7 (1985). In Germain, the
defendant had a record of crimes similar to that of armed robbery, for which he
was charged, including theft, possession of a .32 caliber gun, and possession
of burglarious tools. We stated that
this criminal history showed "conduct from which the inference may be
drawn that the defendant was [407
Mass. 59] not averse" to
committing the crime for which he was under investigation. Id. at 418 n. 7, 486 N.E.2d
693. In contrast, in this case, the
sole guilty plea for a possession offense did not show conduct which
demonstrated the defendant's proclivity to engage in drug dealing and it should
not have been given weight in a probable cause determination. (FN6)
[4] The
fact that the informant gave information on one occasion in the past which led
to the arrest of two individuals is insufficient to satisfy the veracity test.
Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255
(1988). The Commonwealth does not argue,
and thus we need not consider, whether the fact that the arrestees' cases were
pending at the time of the affidavit furnished an indicium
of reliability not present in Rojas. Even assuming that there is more here than
in Rojas, we do not think that the
affidavit sufficiently established the informant's
veracity. Standing alone, the
aforementioned information did not furnish an independent basis for deeming the
informant reliable. As we have
determined that the other aspects of the affidavit did not comport with the
requirements of Upton, we conclude
that the motion judge was correct in ruling that the affidavit failed to
establish probable cause.
The orders
allowing the defendants' motions to suppress in this case and in the companion
case are affirmed.
So ordered.
GREANEY, Justice (dissenting).
The
court's consideration of the affidavit in this case is flawed in three
fundamental respects. First, the court
leaves to the end of its opinion, and then brushes aside, the single most
important piece of material pertaining to the informant's veracity‑‑the
fact that the informant had furnished information in the past to Detective [407 Mass. 60] O'Connor which led to the arrests and prosecutions in the
Worcester District Court of two named individuals for serious violations of the
controlled substance laws. Following
this omission, the court isolates two pieces of corroborative information‑‑the
defendant's recent conviction of possession of cocaine and the informant's
admission to the recent purchase and use of cocaine‑‑and deals with
them as though they were the only facts relevant to a determination of the
informant's veracity. Finally, having
dissected the affidavit in this fashion, the court evades study of the document
as an organic whole and shuns application to its contents of the well‑established
principles which admonish us to consider the information in the affidavit in an
ordinary, commonsense manner without hypertechnical analysis, United States v. Ventresca,
380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684
(1965); to give weight to the
magistrate's determination that probable cause exists, Commonwealth v. Upton, 394 Mass. 363, 377, 476 N.E.2d 548 (1985) (Upton II ); Commonwealth v. Atchue, 393 Mass. 343, 346, 471 N.E.2d 91 (1984); and to resolve marginal cases in favor of
finding probable cause, United States v. Ventresca, supra, 380 U.S. at 108‑109, 85 S.Ct. at 745‑746; Commonwealth v. Stewart, 358 Mass. 747,
750, 267 N.E.2d 213 (1971).
Proper
analysis of the affidavit should begin with Detective O'Connor's statement that
the informant "has given information that has led to the arrest of persons
in the city of Worcester for violations of the controlled substance act. Two such arrests were that of Rafaela Ortiz
and Augustine Ortiz on January 16, 1987.
Rafael Oritiz [sic ] and Augustine Ortiz were arrested for possession of heroin
with intent to distribute. These cases
are currently pending in Worcester District Court." This information is relegated to the last
full substantive paragraph of the court's opinion and then promptly disregarded
in a conclusory statement or two unsupported by the
citation of any authority. (FN1)
[407 Mass. 61] The information quoted indicates that the informant has provided
the police with past tips which they have been able to convert into
prosecutions. A key in determining
whether an informant's past record independently establishes his veracity is
the degree of success with which the authorities have pursued individuals named
by him in past tips. While a "naked
assertion" in an affidavit that an informant has given past tips which
have led to arrests is not sufficient by itself to establish veracity, see Commonwealth v. Rojas, 403 Mass. 483,
486, 531 N.E.2d 255 (1989), it is quite clear that proof of information leading
to a past conviction is not necessary to a finding of veracity. (FN2)
The magistrate who issued the warrant in this case [407 Mass. 62] could
reasonably have inferred that the past tips given by the informant had led to
more than mere arrests‑‑the arrests of the individuals named in the
affidavit (Rafaela Ortiz and Augustine Ortiz) had resulted, at the time the
affidavit was prepared, in determinations that factual and legal bases existed
for the issuance of a complaint against each Ortiz for a narcotics
offense. (FN3)
The
inferences that follow from this are strong.
This informant, a drug purchaser and user, associates with persons in
Worcester who deal in drugs. He knows
enough about these dealers and their illegal activities to furnish grounds for
arresting and prosecuting two of them.
The fact that prosecutions resulted from these two arrests, therefore,
provides a strong indication of reliability which was not present in the Rojas case. In particular, the subsequent prosecutions
support a conclusion that the past tip contained reliable information. [407
Mass. 63] " [A] determination of the informant's
credibility could properly be made where it is revealed not simply that arrests
were made, but rather that the prior information led to 'arrests and
prosecutions.' " 1 W.R. LaFave, Search and Seizure supra at § 3.3(b), at 634.
Our facts resemble those in
Commonwealth v. Saleh, 396 Mass. 406, 486 N.E.2d
706 (1985), where this court found that the informant's veracity had been
established solely on the basis of his past tips, which had resulted in three
arrests and Federal indictments.
The
information discussed above may well be enough by itself to establish
veracity. Any doubt on the matter,
however, is dispelled by the two pieces of corroboration contained in the
affidavit.
The first
is the fact that the defendant recently has been convicted of possession of
cocaine. There can be no question that a
prior conviction of the person incriminated by an informant's tip can provide
corroboration of the informant's veracity if the prior conviction is recent and
involves a crime similar to the one alleged in the tip. See
Commonwealth v. Allen, 406 Mass. 575, 579, 549 N.E.2d 430 (1990);
Commonwealth v. Germain, 396 Mass. 413,
418 n. 7, 486 N.E.2d 693 (1985). See
also Commonwealth v. Labelle, 15 Mass.App.Ct. 175, 180, 443 N.E.2d 1351 (1983) (prior record
of defendant for similar offense is relevant corroboration). The prior conviction in the instant case
falls into this category. The affidavit
discloses that the defendant Jorge Melendez was arrested on July 2, 1986‑‑less
than one year before the date the affidavit was prepared (May 6, 1987)‑‑and
that he entered a guilty plea at a later date.
Compare Commonwealth v. Allen,
supra (four year old conviction too remote). Furthermore, the charge in Melendez's prior
case was possession of cocaine with intent to distribute, which is precisely
the charge alleged in the informant's tip.
The statement regarding the prior conviction on a cocaine charge
corroborates the informant's tip, and thus provides relevant material on the
issue of veracity. See Commonwealth v. Upton, 390 Mass. 562,
572 n. 8, 458 N.E.2d 717 (1983) (Upton I
) (noting that an affidavit which failed the veracity prong would have been [407 Mass. 64] "somewhat strengthened" had it included reference to
the defendant's prior conviction on a similar charge).
The court,
however, states that the conviction did not show "conduct which
demonstrated the defendant's proclivity to engage in drug dealing and it should
not have been given weight in a probable cause determination."
Ante at 517. I do not know
quite what this statement means. A
recent drug conviction certainly indicates a defendant's willingness to commit
the same crime again. Only the naive
would think that every drug dealer will "go straight" after he has
been once caught and convicted. If the
statement suggests, as I think it does, that a defendant's prior criminal
record is not relevant to a probable cause inquiry unless the record consists
of more than one conviction, then it is both fundamentally wrong, (FN4) and
devoid of support in our case law. (FN5)
[407 Mass. 65] No set length should be adopted as an inflexible minimum when a
defendant's prior criminal record is being considered in a probable cause
examination. The proper focus should be
on the record's intrinsic probative value.
See 1 W.R. LaFave, Search and Seizure §
3.2(d), at 581 (2d ed. 1987). As
Professor LaFave notes: "where the past criminal conduct bears a
sufficient similarity either because of the nature of the crime or the manner
of its execution to the act in question, so as to give rise to a reasonable
inference that the same person committed both acts, this fact can be considered
along with the other available information in a determination of probable
cause." Id. at 582, quoting Commonwealth v. Gullett, 459 Pa. 431,
441, 329 A.2d 513 (1974).
I urge
close adherence to the probative value standard, as manifested by the
requirements we enunciated in Germain (prior conviction must be recent and for a
similar offense), and which were cited with approval in Professor LaFave's treatise.
See Commonwealth v. Germain, supra, 396 Mass. at 418 n. 7, 486 N.E.2d
693; 1 W.R. LaFave, supra at 582 nn.
112 & 113. Under this standard, a
single prior conviction could carry probative value, and thus be relevant to
the probable cause inquiry, if it is recent and for a substantially similar
offense. I would avoid interjecting into
the analysis any suggestion of a rigid mechanical rule which attempts to
provide a shorthand solution to the intrinsic probative value inquiry. The defendant Melendez's prior conviction
clearly meets the probative value standard and should not be rejected as part
of the probable cause analysis in this case.
The second
piece of corroborative material in the affidavit is the informant's statement
that he had purchased cocaine from Melendez within the past twenty‑four
hours and injected it into his arm. The
court refuses to consider the statement as one against the informant's penal
interest for two reasons: the statement
was not made in circumstances which would indicate that the informant had a
reasonable fear of prosecution, and "the uncorroborated confession, in and
of itself, would have been insufficient to prove guilt." Ante
517. The latter point is simply
wrong. In a probable cause analysis,[407 Mass. 66] we are not concerned with
the standard that governs evidence at a trial, or the adequacy of a fact to
prove guilt beyond a reasonable doubt.
We are concerned only with probable cause, a considerably less demanding
standard of proof. It is unfair to the
Commonwealth, and confuses the law, to import standards applicable in other
areas into this aspect of the case.
In the
context of search warrant applications, we have said that statements against
penal interest may be considered relevant to establishing veracity if they
"provide a ground for concluding [that the informant] committed a
crime." Commonwealth v. Nowells,
390 Mass. 621, 626, 458 N.E.2d 1186 (1983).
See Commonwealth v. Parapar, 404 Mass. 319, 322, 534 N.E.2d 1167 (1989);
Commonwealth v. Alessio, 377 Mass. 76, 81,
384 N.E.2d 638 (1979). See also 1 W.R. LaFave, supra at
§ 3.3(c), at 644 n. 140 (noting that courts regularly hold that a statement
against penal interest is a factor to be considered on showing of reliability,
and citing to several such cases).
Here, the
informant admitted to having purchased cocaine from both defendants on several
occasions, the most recent purchase having occurred within the twenty‑four
hours preceding Detective O'Connor's preparation of the affidavit. This statement implicates the informant in
the crime of possession of a class B controlled substance. See G.L. c. 94C, §
32A (1988 ed.).
The
informant's statement in this case compares quite favorably with statements
which have been deemed relevant evidence of veracity in other search warrant
affidavits. (FN6) The statement is much stronger than other
statements, which required a conclusion about the informant's criminal
culpability[407 Mass. 67]
to be reached by implication, but which were still found to support an
informant's veracity. (FN7)
I am
cognizant of the danger inherent in applying a statement against penal interest
made by an informant in a "blunderbuss fashion." 1 W.R. LaFave,supra at § 3.3(c), at 645. Detective O'Connor may have promised the
informant a "break of some sort" in exchange for the information, and
it may not be entirely satisfactory to explain the situation by saying, as some
courts do, that a promise of special treatment "does not eliminate the
residual risk and opprobrium of having admitted criminal conduct." United
States v. Harris, 403 U.S. 573, 583‑584, 91 S.Ct.
2075, 2081‑2082, 29 L.Ed.2d 723 (1971).
1 W.R. LaFave, supra at § 3.3(c), at 649‑650, 657. However, although the informant might not be
in immediate danger of prosecution, his admission still carries an indication
of reliability because of his fear that providing the police with misleading
information will not bode well for him in the future. See
Commonwealth v. Norris, 6 Mass.App.Ct. 761, 765,
383 N.E.2d 534 (1978); 1 W.R. LaFave, supra. The fact remains that, if the given
information turns out to be false, the police have leverage over the [407 Mass. 68] informant and could punish him in many ways including a
disclosure of his identity.
The fact
that Detective O'Connor knew the informant's identity is also critical. (FN8)
Due to his lack of anonymity, the informant likely would have perceived
his remarks as risky and inculpatory. See 1 W.R. LaFave, supra at § 3.3(c), at 647 (noting that
a "critical fact" regarding the weight to be attached to statements
against penal interest is whether the informant's identity is known to
police). Cf. Commonwealth v. Alessio, 377 Mass. 76,
81‑82, 384 N.E.2d 638 (1979) (reasoning that police ignorance of
informant's identity undermines value of statement against penal
interest). I would conclude that the
informant's admission to purchasing and using cocaine from the defendants,
because he is an informant known to the officer making the affidavit, is
further relevant corroboration of his veracity.
Considered
in the aggregate, the material in the affidavit describes an informant, known
to Detective O'Connor, who had a good record of past performance, and whose
information is corroborated by Melendez's recent conviction of a similar drug
charge and the informant's statement against his penal interest. The affidavit provides an adequate basis to
find the informant reliable, a conclusion fortified by comparison of the
information in this case with that in cases in which [407 Mass. 69] this
court has found that the veracity prong has not been satisfied. (FN9)
I would so hold.
(FN1.) Against Nereida
Cruz.
(FN2.)
The defendant concedes that the information in the affidavit satisfied the
basis of knowledge test.
(FN3.)
We do not mean to suggest that the standard for determining probable cause
should be as strict as that needed for the admission of evidence in a
trial. The question is not whether the
evidence is admissible at trial, but whether it "meets preliminary requirements
sufficient to merit its consideration by any tribunal. One of these prerequisites ... is that the
admission of a crime must be, in fact, against the declarant's
interest. Admissions, when found to be
against interest, are considered credible because it is assumed that persons do
not make statements damaging to themselves unless satisfied they are true. Admissions need not always be against the declarant's interest, however; and, if they are not, the basis for believing
them is destroyed." (Footnotes
omitted). Note, Probable Cause and the
First‑Time Informer, 43 U.Colo.L.Rev. 357, 367
(1972).
(FN4.)
For these reasons, according to LaFave, the
disclosure of an informant's identity calls for "particular caution"
and should carry "little weight," even though the identity of the
informant is known to the police. 1 W.R.
LaFave, supra
at 647.
At any rate,
a magistrate could not reasonably infer that the affiant knew the actual
identity of the informant. The fact that
the affiant met with the informant does not imply that he knew his name or
address or that he could readily reach the informant had the information proved
to be false. Without any indication
whether the affiant actually knew the informant's identity, it is impossible to
conclude that the informant had any reasonable fear of prosecution. See
Commonwealth v. Allen, 406 Mass. 575, 549 N.E.2d 430 (1990).
(FN5.) The Commonwealth's reliance on Commonwealth v. Nowells,
390 Mass. 621, 626, 458 N.E.2d 1186 (1983), is misplaced. Nowells
held that it is necessary at the very
least, that the statement provide a reliable basis for concluding that the
informant committed a crime. It did not hold that any statement which
remotely opens the declarant to criminal prosecution
is automatically to be considered a statement against penal interest.
In
addition, Commonwealth v. Norris, 6 Mass.App.Ct. 761, 383 N.E.2d 534 (1978), like Vynorius and Parapar,
involved an informant who gave information following his arrest.
Commonwealth v. Kiley, 11 Mass.App.Ct. 939, 416 N.E.2d 980 (1981), is a rescript which does not even recite the facts of the
affidavit. Commonwealth v. Atchue,
393 Mass. 343, 347 n. 3, 471 N.E.2d 91 (1984), dealt with a named and
identified informant. But see Commonwealth v. Benlien,
27 Mass.App.Ct. 834, 837‑838 n. 4, 544 N.E.2d 865
(1989).
(FN6.) The Commonwealth admits that the
information in the affidavit regarding the lessee of the apartment cannot be
considered to corroborate the informant's veracity. See
Commonwealth v. Bottari, 395 Mass. 777, 784, 482
N.E.2d 321 (1985).
(FN1.) I do not agree with the court's
assertion that the Commonwealth has not argued the importance of these
facts. The Commonwealth's brief relies
upon "the informant's prior tips," together with the other
information in the affidavit, as "converg[ing] to satisfy the veracity test." Although the Commonwealth does not clearly
distinguish this information from that which we found deficient in Commonwealth v. Rojas, 403 Mass. 483,
531 N.E.2d 255 (1988), it does rely upon the arrests and prosecutions as important
to establishing probable cause.
Further,
we have a clear obligation to examine an issue which concerns the validity of a
criminal prosecution. As the United
States Supreme Court has pointed out in the analogous area of confessions of
error by the prosecution: "[O]ur judicial obligations compel us to examine independently
[issues on appeal].... The public
interest that a result be reached which promotes a well‑ordered society
is foremost in every criminal proceeding.
That interest is entrusted to our consideration and protection as well
as to that of the enforcing officers.
Furthermore, our judgments are precedents, and the proper administration
of the criminal law cannot be left merely to the stipulation of
parties." (Citations omitted.) Young
v. United States, 315 U.S. 257, 258‑259, 62 S.Ct.
510, 511‑512, 86 L.Ed. 832 (1941). See Sibron v. New York, 392 U.S. 40, 58‑59, 88 S.Ct. 1889, 1900‑1901, 20 L.Ed.2d 917 (1968). This directive is especially true when the
highest appellate court in a State has before it an affidavit supporting an
application for a search warrant, the consideration of which involves only a
question of law. Ignoring the issue
produces an opinion that leaves the law on a vital topic of criminal law in an
unsatisfactory state, calling into doubt the validity of many other affidavits.
(FN2.)
See, e.g., United States v. Fleming,
566 F.2d 623, 625 (8th Cir.1977) (rejecting defendant's argument that veracity
requires showing of information leading to successful prosecutions or
convictions); 1 W.R. LaFave,
Search and Seizure § 3.3(b), at 629 (2d ed. 1987) (stating that it
"clearly is not the case" that veracity prong requires showing of
past tip leading to at least one conviction).
Our decisions also have adhered to this view, holding that veracity
exists, based on the informant's past record and other indicia of reliability,
despite the absence of a past conviction.
See, e.g., Commonwealth v. Valdez,
402 Mass. 65, 521 N.E.2d 381 (1988) (past tip led to one arrest on outstanding
warrant);
Commonwealth v. Saleh, 396 Mass. 406, 486
N.E.2d 706 (1985) (past tips led to three arrests and Federal indictments);
Commonwealth v. Hason, 387 Mass. 169, 439
N.E.2d 251 (1982) (past tips provided "accurate information to the police
on three previous occasions"); Commonwealth v. Stewart, 358 Mass. 747,
267 N.E.2d 213 (1971) (past tip led to discovery of evidence).
(FN3.) The fact that the Ortizes'
cases had been pending for four months (at the time the affidavit was prepared)
reveals that criminal complaints must have issued against them. See G.L. c. 263, §
4 (1988 ed.) (no person may be held to
answer for alleged crime in the District Court unless a complaint has
issued); Mass.R.Crim.P.
3(a), 378 Mass. 847 (1979) (same). The
existence of these complaints would indicate to the clerk magistrate examining
this affidavit at least the following:
If each Ortiz was arrested on an arrest warrant, a judicial officer
would have found probable cause before any arrest warrant issued, thereby authenticating
the informant's tips. See G.L. c. 218, § 33 (1988 ed.) If arrest warrants were not used, a clerk
magistrate would have concluded that a factual and legal basis existed to issue
complaints for possession of heroin with intent to distribute. Each Ortiz then would have been arraigned
promptly, see G.L. c. 276, § 38 (1988 ed.). (if arrested without a warrant, arrestee must
be brought before a judge as soon as possible after arrest); District Court Standards of Judicial Practice,
The Complaint Procedure, Standard 2:00 & Commentary (1975) (arraignment in
District Court routinely occurs no later than next business day after arrest),
and separately examined by a judge who would make at least a preliminary
determination of probable cause. See G.L. c. 276, § 22; K.B. Smith, Criminal Practice and Procedure §§ 625, 626 (2d
ed. 1983); District Court Standards of
Judicial Practice, The Complaint Procedure, Standard 2:00, supra. A clerk‑magistrate
in the District Court issued this warrant.
This magistrate would have had special experience with respect to the
District Court's procedure in the issuance of arrest warrants and complaints.
(FN4.) Professor LaFave,
upon whom the court heavily relies, argues that a single prior conviction which
meets the tests of recency and similarity is relevant
evidence of an informant's veracity. See
1 W.R. LaFave, Search and Seizure § 3.2(d), at 582,
585‑586 (2d ed. 1987).
(FN5.) The court's conclusion, ante
at 517, that a "sole guilty plea" does not show a "conduct from
which the inference may be drawn that the defendant was not averse" to
committing the crime currently charged is based solely on a footnote in the Germain
case. See Commonwealth v. Germain, 396 Mass. 413,
418 n. 7, 486 N.E.2d 693 (1985).
However, the Germain
court in no way suggested that any minimum number of convictions must be
present before a magistrate may rely on a past criminal record as a sign of
reliability. Furthermore, the court's
analysis completely ignores the two requirements we did set forth in Germain‑‑that the past criminal record must
be recent and similar to the crime currently alleged. Germain,
supra. Commonwealth v. Allen, 406
Mass. 575, 579, 549 N.E.2d 430 (1990). A
proper application of the Germain factors reveals that the defendant's past
record in this case is at least as relevant to the probable cause inquiry as
was that of the defendant in Germain. The Germain
defendant did have multiple past convictions, but all except one of the
convictions upon which the court relied in finding probable cause (possession
of a .32 caliber handgun) stemmed from a single event. Furthermore, those convictions were
approximately one and one‑half years old, and for substantially
dissimilar crimes (none of the past convictions included personal assault
element at issue in the current charges of armed robbery while masked and
stealing by confining or putting in fear).
By contrast, the defendant's past record in this case is less than one
year old, and for a substantially identical crime.
(FN6.)
See, e.g., Commonwealth v. Vynorius, 369 Mass. 17, 21, 336 N.E.2d 898 (1975)
(admission to two purchases of drugs); Commonwealth v. Kiley,
11 Mass.App.Ct. 939, 939, 416 N.E.2d 980 (1981)
(admission to one purchase of drugs); United States v. Reivich,
793 F.2d 957, 959 (8th Cir.1986) (admission of past and current drug dealings);
United States v. Deggendorf, 626 F.2d 47,
51 (8th Cir.), cert. denied, 449 U.S. 986, 101 S.Ct.
405, 66 L.Ed.2d 249 (1980) (admission of cocaine use within past eight months).
(FN7.) The statement made in this case is a
direct admission, and thus more incriminating than a statement which merely
gives rise to an inference of
criminal conduct, but nonetheless has been deemed against the declarant's penal interest.
See, e.g., Commonwealth v. Atchue, 393 Mass. 343, 347 n. 3, 471 N.E.2d 91 (1984)
(reasoning that informant's admission of "first hand knowledge" of
location of stolen property "gives rise to the inference that the
informant's statements could be viewed as against his penal interest");
Commonwealth v. Norris, 6 Mass.App.Ct.
761, 766, 383 N.E.2d 534 (1978) (given informant's earlier past arrest for sale
of stolen airline tickets, subsequent statement that person who informant knows
has other stolen tickets gives rise to the inference that informant admitted
joint participation in the latter crime); United States v. Gavic,
520 F.2d 1346, 1351 & n. 8 (8th Cir.1975) (statement by occupant of
premises that a controlled substance was present creates inference of reliability
because it "at least implicated" informant in crime of constructive
possession).
The
informant's statement also differs substantively from the one made in Commonwealth v. Nowells,
390 Mass. 621, 458 N.E.2d 1186 (1983).
In Nowells,
the informant admitted going to a particular apartment "to get (turned on)
with cocaine." Id. at 623, 458 N.E.2d 1186. We held that the statement did not indicate
that the informant committed a crime because it revealed only the informant's
purpose in visiting the apartment and not incriminating activities committed by
the informant in the apartment. Id. at 626, 458 N.E.2d 1186.
(FN8.) The court states, ante at 520 n. 4, that
"a magistrate could not reasonably infer that the affiant knew the actual
identity of the informant." I
disagree. Detective O'Connor states that
he "has met with [the informant] numerous times in the last week and most
recently this date." This
statement clearly supports an inference that O'Connor knew the identity of the
informant.
(FN9.) In the majority of those cases, the
informant's identity was unknown to the police, and the informant had neither
provided any tips in the past nor made a statement against his penal
interest. See, e.g., Commonwealth v. Spence, 403 Mass. 179, 526 N.E.2d 1054 (1988);
Commonwealth v. Borges, 395 Mass. 788, 482 N.E.2d 314 (1985);
Upton I, supra; Upton II, supra.
In these cases, the Commonwealth attempted to establish veracity solely
on the basis of police corroboration of the informant's tip. We deemed that corroboration inadequate in
each case. In Borges, the police corroborated only the informant's description
of the defendant's physical appearance and clothing. In the
Upton cases, police corroborated the presence of a motor home at the
location predicted by the informant, who had stated that stolen goods were
located inside the home. However, the
police were unable to confirm the presence of those goods in the home. Finally, in Spence, the police observed two men, one of whom fit a physical
and clothing description provided by the informant, disembarking from a
particular flight that the informant had predicted. The informant had stated that the man he
described would be carrying a large amount of heroin in his crotch, which would
be evidenced by a visible bulge.
However, it was the described man's companion, the defendant, who was
carrying the heroin. Thus, we concluded
that "[t]he fact that the defendant was travelling
with an individual whom the informant was able to describe does not indicate
anything about the reliability of the informant's tip concerning the
defendant." Spence, supra, 403 Mass. at 181, 526
N.E.2d 1054. This case differs from
these three cases in at least two critical aspects. First, unlike in the three cases discussed
above, the affidavit in the instant case provided evidence of the informant's
veracity independent of any police corroboration. Second, a significant piece of police
corroboration, concerning the past criminal record of the defendant, was
presented in the instant affidavit.
My
conclusion on this point is also buttressed by the fact that the Borges and Upton cases, despite holding that veracity had not been
demonstrated, were perceived by at least some members of those courts as close
decisions. See Commonwealth v. Borges, supra, 395 Mass. at 797, 482 N.E.2d 314
(Hennessey, C.J., concurring) ("This case is
close enough to the line so that I bow to the court's wisdom, but not without
doubt on my part"); Upton II, supra, 394 Mass. at 377, 476
N.E.2d 548 (Wilkins, J.) ("We grant
that the [Aguilar‑ Spinelli ] question [in this case] is a close
one").