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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Monterosso,
33 Mass.App.Ct. 765 (1992)
Appeals Court of Massachusetts,
No. 90‑P‑1270.
Argued
Decided
Further
Appellate Review Denied
Janis M. Berry,
Anne M. Kendall, Asst. Dist. Atty., for Com.
Before WARNER, C.J., and
ARMSTRONG, PERRETTA, DREBEN,
JACOBS, GILLERMAN and GREENBERG, JJ.
JACOBS,
Justice.
Convicted
by a Superior Court jury of possession of marihuana, cocaine and LSD with
intent to distribute,[33 Mass.App.Ct. 766] the defendant appeals, claiming that his
motion to suppress evidence was wrongly denied and that the evidence adduced at
trial was not sufficient to support the convictions. We affirm.
[1] 1. The affidavit. The question presented by the denial of the
defendant's suppression motion is whether the affidavit of a police officer
provided "a substantial basis for concluding that any of the articles
described in the warrant are probably in the place to be searched."
Commonwealth v. Upton, 394
[2] The
affidavit, dated
The next
paragraph of the affidavit recites that "[w]ithin
the last 3 days I contacted a credible and reliable informant [CR1] who has
made controlled buys of controlled substances for me in the past. As a result of these controlled buys search
warrants were obtained and seizures of controlled substances and arrests of
offenders occurred." After a
failed attempt at making a controlled buy from the defendant, CR1 reported to
the affiant that, while "talking to Richard Monterosso,"
the informant "saw a trail of smoke that [33 Mass.App.Ct. 767] was definitely marijuana smoke exit the door of [a]partment 5...."
He suggested to the affiant that he "would be able to smell the
marijuana smoke if [he] went up in the hallway ... and stood in front of door #
5."
According
to the affidavit, the affiant and a fellow officer, Sergeant Sciola, drove CR1 back to his house, and "Sgt. Sciola and myself then went into [the apartment house] and
followed a distinct odor trail of marijuana to the door of apartment # 5, the
home of Richard Monterosso." From their past experience, the police
officers recognized the smell of burning marihuana.
The
affidavit gave a brief description of the apartment house, noting that there
were three apartments on the second floor of the house, one of which was
apartment # 5, and four apartments on the first floor. Also, the affidavit described the "long
and constant record of arrests [of Monterosso] for
distributing controlled substances."
The affidavit cited arrests on June 7, 1987, September 30, 1987, and
October 12, 1987, as a result of which the defendant pleaded guilty to various
marihuana and cocaine distribution crimes and spent a period of time in the
Berkshire County house of correction.
Finally, the circumstances and unusual amount of short term traffic
reported by the McCalabs, coupled with Monterosso's record of recent convictions, led the affiant
to state in a report incorporated in the affidavit: "This would show that [the defendant]
definitely has a history and a[n] up‑to‑date
continuous record of selling controlled substances " (emphasis
supplied). The search warrant issued on
May 1, 1989, and was executed on May 5, 1989.
The
substantive components of the affidavit consist of the information conveyed by
the McCalabs and CR1, the detection of the odor of
marihuana by the affiant and his colleague, the report of the defendant's
criminal record and the conclusions drawn by the affiant. Where the question of legal sufficiency is a
close one, its resolution is often dependent, as the court's division well
illustrates, upon the degree of deference given to the magisterial
determination of probable cause and whether the analysis focuses primarily on
the affidavit as [33 Mass.App.Ct. 768]
an organic whole or on its component parts.
A fundamental principle of search warrant review is that "[t]he
sufficiency of the affidavit is to be decided on the basis of a consideration
of all of its allegations as a whole, and not by first dissecting it and then
subjecting each resulting fragment to a hypertechnical
test of its sufficiency standing alone." Commonwealth v. Stewart,
358 Mass. 747, 751, 267 N.E.2d 213 (1971).
Moreover, when viewed as parts of a panoramic presentation, and not in
isolation, the components of an affidavit may tend to buttress rather than
undermine a determination of probable cause.
[3] A
logical and commonsense reading of the affidavit leads to the conclusion that
marihuana was present in the defendant's apartment within two days of the date
of the affidavit. During that period,
not only did CR1 report seeing marihuana smoke emerging from the defendant's
apartment but the affiant and another police officer also traced the odor of
marihuana to the door of that apartment.
For CR1's affidavit information to be given credence, his veracity must
be established under the familiar two‑pronged test of 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). Commonwealth v. Upton, 394
Mass. 363, 373‑376, 476 N.E.2d 548 (1985). While it is debatable whether CR1's past
successful participation in controlled buys establishes his credibility, (FN2)
the underlying circumstances of his report of marihuana smoke reasonably
support the conclusion that his information was reliable. (FN3)
The affidavit informs us that the police officers supervised the attempt
and watched the informant enter and leave the building which housed apartment #
5. It is reasonable to conclude that the
informant, knowing that the police were so proximately positioned and, [33 Mass.App.Ct.
769] therefore, perhaps able to check his information, was unlikely to
report falsely. Close supervision of an
informant coupled with police involvement in his investigative activities
substantially reduce the risk of falsehood.
See 1 LaFave, Search & Seizure § 3.3(f),
at 686‑687 (2d ed. 1987).
Moreover, the detection of the odor of marihuana at the door of the
defendant's apartment, in itself evidence of an incriminating nature, gives
corroborating effect to the informant's observations and his prediction,
reported in the affidavit, that the affiant "would be able to smell the
marijuana smoke if [he] went up in the hallway ... and stood in front of door #
5." That the police officers'
detection of evidence of marihuana outside of apartment # 5 does not preclude
possible explanation other than its presence within the apartment is of no
moment. Although its information is
"susceptible of other interpretations, ... the affidavit must only
establish probable cause, not proof beyond a reasonable doubt."
Commonwealth v. Byfield, 413 Mass. 426,
431, 597 N.E.2d 421 (1992).
The
statements of the McCalabs, standing alone, would not
be sufficient to establish probable cause, even with the additional weight
accorded information from identified informants. See
Commonwealth v. Grzembski, 393 Mass. 516, 522,
471 N.E.2d 1308 (1984). However, that
information takes on added significance when combined with the affidavit report
of the defendant's having been arrested on three occasions for selling
marihuana and cocaine and pleading guilty to all three charges less than
nineteen months prior to the date of the affidavit. "The record of prior convictions [may
be] used as a factor because the convictions were recent, and the crimes sufficiently
similar to be relevant on the determination of probable cause."
Commonwealth v. Germain, 396 Mass. 413,
418 n. 7, 486 N.E.2d 693 (1985) (approximately eighteen months between the
defendant's sentencing, for crimes similar to that described in the affidavit,
and date of the affidavit).
The McCalabs' observations of continuing activity, viewed in
the context of the defendant's recent criminal record for drug crimes and
buttressed by the weight which should be given to the special insight of an experienced
police officer, [33 Mass.App.Ct. 770]
see Commonwealth v. Taglieri,
378 Mass. 196, 199, 390 N.E.2d 727, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979), and by affidavit evidence
of the presence of marihuana in apartment # 5 sometime after April 29, 1989,
sufficiently establish the probability that illegal drugs would be found in
that apartment.
Judicial
concern for preserving and strengthening constitutional protections is not
served by "[a] grudging or negative attitude ... toward warrants," United States v. Ventresca,
380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684
(1965), nor by disregard of well‑established principles urging reviewing
courts to "give great deference to the magistrate's determination of
probable cause," Commonwealth v.
Upton, 394 Mass. at 377, 476 N.E.2d 548, to "adopt a commonsense
approach in reviewing searches under the Fourth Amendment as well as under art.
14," Commonwealth v. Byfield, 413 Mass. at 430 n. 6, 597 N.E.2d 421, and to
recognize that "the resolution of doubtful or marginal cases in this area
should be largely determined by the preference to be accorded to
warrants." United States v. Ventresca,
supra, 380 U.S. at 109, 85 S.Ct. at 746.
[4] 2. Sufficiency of the evidence. The defendant argues that the small amounts
of marihuana, cocaine and LSD found in the defendant's control as a result of
the search of his apartment are sufficient only for conviction of possession
and do not support inferences of intent to distribute. He points to police testimony that the
amounts found were consistent with personal use as well as distribution and to
the principle that a guilty verdict may not be upheld where the evidence tends
equally to support guilt and innocence.
See Commonwealth v. Eramo, 377 Mass. 912, 913, 387 N.E.2d 558 (1979);
Commonwealth v. Ferguson, 384 Mass. 13, 19, 422 N.E.2d 1365
(1981). The argument fails to recognize the weight which a jury reasonably could
have given to (1) physical evidence of distribution found in the defendant's
apartment including a hand‑held scale, described in testimony as being of
a type associated with the weighing and selling of marihuana, three one‑pound
bags with marihuana[33 Mass.App.Ct. 771] residue in them and an "OZ" (FN4)
sheet commonly used to record drug transactions; (2) a police officer's testimony of his
observation of several persons making short term visits to the defendant's
apartment shortly before the search visits which he connected to the selling of
drugs; (3) the defendant's admissions to
police officers of selling small amounts of marihuana and cocaine to his
friends and to the price he received for LSD;
and (4) his admission that the drugs found in his apartment were to be
used the next night at a party with his friends. The cumulative force of this trial evidence
and the reasonable inferences which could be drawn from it amply satisfy the
familiar directed verdict standard recited in Commonwealth v. Latimore, 378 Mass. 671,
676‑678, 393 N.E.2d 370 (1979).
Judgments affirmed.
GILLERMAN, Justice (dissenting, with whom GREENBERG,
Justice, joins).
The
affidavit is inadequate for a number of reasons. The McCalabs were
named and identified informants, and the credibility requirement may be relaxed
where the named informant is also an eyewitness to or participant in the crime
being investigated. See Commonwealth v. Atchue,
393 Mass. 343, 347‑348, 471 N.E.2d 91 (1984). However, the McCalabs
were not eyewitnesses to any criminal activity, see Commonwealth v. Snyder, 413 Mass. 521, 529, 597 N.E.2d 1363
(1992);
Commonwealth v. Carey, 407 Mass. 528, 534 n. 4, 554 N.E.2d 1199
(1990), and the information they reported to the police, at the most, provided
suspicion, not probable cause, to believe that evidence of criminal activity
would be found in apartment # 5. Absent
information that the persons entering and leaving apartment # 5 had some known
or suspected connection with illegal drug activity, such as known drug users as
in Commonwealth v. Valdez, 402 Mass.
65, 71, 521 N.E.2d 381 (1988), or even suspected drug users or [33 Mass.App.Ct.
772] dealers as in Commonwealth v. Hall, 366 Mass. 790,
798, 323 N.E.2d 319 (1975), the mere fact of the appearance of a large number
of unidentified visitors‑‑not an incriminating event under a
variety of circumstances, as the Commonwealth's brief concedes‑‑is
not an adequate basis for an inference that evidence of criminal activity is
probably in apartment # 5.
The
affidavit fares only sightly better on the basis of
the allegations regarding the activities of CR1. Most important, CR1 was not an informant in
the usual sense. There are no
allegations that CR1, in the past, provided "tips" to the police that
criminal business had occurred, was occurring, or is proposed for the
future. See 1 LaFave,
Search and Seizure § 3.3, at 611 (2d ed. 1987).
The affidavit merely recites that in the past CR1 had made controlled
buys of controlled substances leading to arrests and the seizures of drugs; absent from the affidavit is any reference to
the fact that the controlled buys were made as a result of information CR1 had
brought to the police. So, too, in this
case, the information about apartment # 5 was disclosed by the McCalabs, not CR1, and the assigned task of CR1 was simply
to make a controlled buy as directed by the police. See
People v. Mason, 132 Cal.App.3d 594, 599‑600, 183 Cal.Rptr.
246 (1982) (previous participation in controlled buys, without more,
insufficient to establish informant's credibility); LaFave, supra § 3.3(b), at 631 ("The mere
fact that the informant was given money and sent to a particular place to meet
a suspect and then returned with narcotics, all under the close surveillance of
police, alone indicates very little about the informer's credibility in the
role of a reporter of facts when he is not under such close supervision").
While the past participation of CR1 in
controlled buys leading to arrests and seizures of contraband may be entitled
to some weight on the issue of his reliability, that past activity, standing
alone, is not sufficient to establish his veracity. The mere fact of participation in controlled
buys in the past, under circumstances left undescribed,
and which are unconnected to the criminal activity under investigation in the
case before the court, is substantially different from participation [33 Mass.App.Ct.
773] in an executed controlled buy from the defendant which, as in Commonwealth v. Benlien,
27 Mass.App.Ct. 834, 838, 544 N.E.2d 865 (1989),
yields up material evidence of the defendant's suspected criminal
activity. In this case, then, the past
performance of CR1, which does not appear to have been anything more than
following police instructions, is not enough, without additional facts, to
establish the credibility of CR1, and, therefore, collateral information
generated by CR1 (observation of a trail of marihuana smoke emerging from
apartment # 5) in the course of the
failed controlled buy from the defendant does not provide probable cause
for a search warrant. More is needed by
the Commonwealth to justify the issuance of the search warrant.
Of course,
independent corroborating allegations in the affidavit "may supplement the
informant's tip to support a finding of probable cause."
Commonwealth v. Reddington, 395 Mass. 315,
322, 480 N.E.2d 6 (1985). At some
unidentified time, the police attempted to corroborate the new information, but
they, too, failed in the task. What they
did was proceed to the apartment house within which, on the second floor, were
three apartments, of which apartment # 5 was one. There, in the hallway outside apartment # 5, they smelled marihuana smoke. The corroboration that is lacking is the
observation that the police saw and smelled marihuana smoke emerging from the doorway of apartment # 5. This omission is no "hypertechnical"
quibble, see Commonwealth v. Mendez,
32 Mass.App.Ct. 928, 929, 587 N.E.2d 248 (1992), and
cases cited, for the affidavit is barren of any reliable information that
evidence of drugs was to be found inside apartment # 5. Contrast
United States v. Sweeney, 688 F.2d 1131, 1135, 1137‑1138 (7th
Cir.1982) (officer smelled odor of chemical being processed into contraband
inside defendant's house while standing at the open front door). The
limited observations of the police do not preclude at least three other equally
plausible explanations for the marihuana smoke in the second floor hallway
outside the door of apartment # 5: the
marihuana smoke had earlier come from either, or both, of the two other
apartments on the same floor, or it came from a person passing [33 Mass.App.Ct.
774] through the hallway to exit the
building. By failing to verify that
there was smoke of burning marihuana inside the apartment, or emerging from it,
the police failed to corroborate the information received from CR1, and thus
left to speculation whether the source of the smoke was inside apartment # 5 or
elsewhere. (FN1)
The
absence of independent police corroboration is not cured by combining the
information from CR1, which, as we have said, carried no warrant of credibility,
with the statements the McCalabs made to the
police. The suspicions of the McCalabs concerning activities seen only by them‑‑unlike
the independent police corroboration of predictions made by an informant, as in Draper v. United States, 358 U.S. 307, 309‑310,
79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959)‑‑do
not provide the factual basis required to establish either the general veracity
of CR1 or the "specific reliability" of his statement. See
Commonwealth v. Borges, 395 Mass. 788, 794, 482 N.E.2d 314 (1985). Thus,
Aguilar‑ Spinelli remains unsatisfied. See
Commonwealth v. Upton, 394 Mass. at 375‑376, 476 N.E.2d 548
("Each prong of the Aguilar‑ Spinelli test‑‑the basis of knowledge and
the veracity of the informant‑‑presents an independently important
consideration. We have said that
independent police corroboration can make up for deficiencies in either or both
prongs of the Aguilar‑ Spinelli test....
We reiterate today, however, that each element of the test must be
separately considered and satisfied or supplemented in some other
way"). Close adherence to the tests
of Aguilar‑ Spinelli
is essential to the preservation of the rights protected by art. 14 of the
Declaration of Rights of the Constitution of the Commonwealth, see Commonwealth v. Upton, supra at 376,
476 N.E.2d 548, and while hypertechnical analysis is
to be avoided, id. at 374, 476 N.E.2d
548, so too is any analysis which fails to recognize that without satisfaction
of those underlying tests, art. 14 itself is put in jeopardy. Compare Note, Constitutional Stare Decisis, 103 Harv.L.Rev. 1344,
1353 n. 63 [33 Mass.App.Ct.
775] 1990) ("No one would
suggest ... that the text of the fourth amendment clearly determines the
existence of probable cause in every stop‑and‑frisk case. Indeed, in such cases the Court does not
reconsider norms announced by the text;
instead, it applies the tests it has formulated to vindicate those
norms").
In these
circumstances, the Commonwealth has not met its burden of producing an
affidavit which provides a substantial basis for concluding that there was
evidence of criminal activity in apartment # 5. Commonwealth v. Stewart,
358 Mass. 747, 749, 267 N.E.2d 213 (1971).
See Commonwealth v. Kaufman,
381 Mass. 301, 305, 408 N.E.2d 871 (1980) ("here we have an equivocal
circumstance distant from any inference that the magistrate could validly make
..."). Contrast Commonwealth v. Pacheco, 21 Mass.App.Ct.
565, 566‑567, 488 N.E.2d 42 (1986).
Finally,
the allegations in the affidavit concerning the three prior arrests of Monterosso for drug activity are no help to the
Commonwealth because there was no reliable information in the affidavit which
tied the defendant's residence (apartment # 5) to past illegal drug
transactions. See Commonwealth v. Kaufman, 381 Mass. at 304, 408 N.E.2d 871
("Notably absent is reliable specific information from any quarter placing
illegal drugs or drug transactions there in the past ...");
Commonwealth v. Olivares, 30 Mass.App.Ct.
596, 599‑601, 571 N.E.2d 416 (1991).
Further, the three prior arrests‑‑almost two years before
the execution of the warrant‑‑are "too remote in time to give
rise to an inference that drugs would be present when the warrant was
issued." Commonwealth v. Malone, 24 Mass.App.Ct. 70, 73, 506 N.E.2d 163 (1987) (fourteen‑month
hiatus).
For the
foregoing reasons, the motion to suppress should have been allowed, and the
three judgments (possession with intent to distribute marihuana, cocaine, and
LSD) should be reversed, and the verdicts set aside.
(FN1.) This case was initially heard by a
panel comprised of Justices Jacobs, Gillerman and
Greenberg and was thereafter submitted on the record and briefs to Chief
Justice Warner and Justices Armstrong, Perretta and Dreben, who took part in the decision of this case in accordance
with the provisions of Mass.R.A.P. 24(a), 365 Mass.
872 (1974).
(FN2.)
See State v. Maddasion,
130 Ariz. 306, 308, 636 P.2d 84, 86 (1981);
1 LaFave, Search & Seizure § 3.3(b), at
631 (2d ed. 1987).
(FN3.)
At issue here is whether the requirements of either the credibility or
reliability "spurs" of the veracity "prong" of the Aguilar‑ Spinelli
test have been met. If an informant's
track record does not establish his credibility, the question posed is whether
a conclusion that his information was reliable is supported by other evidence
in the affidavit or by police corroboration.
See Smith, Criminal Practice & Procedure §§ 211‑215 (2d ed.
1983).
(FN4.)
The OZ sheet was described at trial by a prosecution witness as containing
names of persons, dollar amounts owed and, in one instance, the words
"twenty pills."
(FN1.) The
affidavit recites that the police "followed a distinct odor trail of
marihuana [smoke] to the door of apartment # 5." This is nothing more than an assertion that
there was an odor of marihuana smoke
outside apartment # 5, leaving the
source of that smoke to speculation.