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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. Morton, 26 Mass.App.Ct.
949 (1988)
Appeals Court of Massachusetts,
No. 87‑758.
Argued
Decided
Martin J. Drilling (Frederick J. Watson, III,
Robert P. Snell, Asst. Dist. Atty., for Com.
Before BROWN, KAPLAN and SMITH, JJ.
RESCRIPT.
On
[26 Mass.App.Ct.
950] Prior to trial the defendant
filed a motion to suppress certain evidence, including a gun, which had been
seized from his home as a result of the search.
After a hearing, a Superior Court judge denied the motion. On appeal, the defendant claims, among other
things, (FN1) that the affidavit in support of the warrant was insufficient to
establish probable cause because it did not show on its face that the
information supplied by the informant was timely. In particular, he points out that the affidavit,
pertinent portions of which are reproduced in the margin, (FN2) failed to state
the time
when the informant allegedly
observed, in the defendant's home, the items named in the warrant.
[1][2] It
is well established that, in order for a valid search warrant to issue,
probable cause must be established by "proof ... of facts so closely
related to the time of the issue of the warrant as to justify a finding of
probable cause at that time." Commonwealth v. Atchue,
393 Mass. 343, 349, 471 N.E.2d 91 (1984), quoting from Sgro
v. United States, 287 U.S. 206, 210, 53 S.Ct.
138, 140, 77 L.Ed. 260 (1932). Commonwealth v. Reddington, 395 Mass. 315, 322‑323, 480 N.E.2d 6
(1985).
Commonwealth v. Malone, 24 Mass.App.Ct.
70, 73, 506 N.E.2d 163 (1987). Also see
United States v. Dauphinee, 538 F.2d 1, 5
(1st Cir.1976) ("the temporal proximity or remoteness of the events
observed has a bearing on the validity of a warrant"). Therefore, the omission of the time that the
informant observed the "stolen or illegal" items is a serious defect
in the affidavit. Rosencranz v.
United [26 Mass.App.Ct.
951] States, 356 F.2d 310, 315‑316
(1st Cir.1966). 2 LaFave,
Search and Seizure § 3.7(b) (2d ed. 1987).
(FN3)
[3] The
Commonwealth contends that the omission is not fatal because other statements
in the affidavit demonstrate that the informant supplied sufficient information
to enable the issuing magistrate to determine that the items would be in the
defendant's home on March 9, 1985, when the warrant was issued. It notes that the affidavit states that the
informant gave credible information to Detective Loyd
as recently as "the first part of 1985," some two months before the
issuance of the warrant. According to
the Commonwealth, that fact, coupled with the nature of the property sought
("stolen or illegal" items) and the place to be searched (the
defendant's home), supports an inference that the items would be present at the
time the warrant was issued.
We
disagree with the Commonwealth's analysis.
A reading of the affidavit shows that the informant's tip in "the
first part of 1985" had nothing to do with the defendant. In fact, from the affidavit, we cannot
discern when the informant talked to Detective Loyd
about the defendant. Even if we could
infer that the informant told Detective Loyd of his
observations concerning the defendant in "the first part of 1985," it
is not enough to establish present probable cause because what is required is
the time that the informant made his observations, not the time that he told
Detective Loyd of them. See 2 LaFave,supra § 3.7(b), at 88 n. 56
("[i]t must be emphasized that the time needed
is the time of the facts relied upon to establish probable cause, not the time
that these facts were conveyed to law enforcement authorities"). Here, there is a total absence in the
affidavit of any indication concerning the time when the informant made his
observations. (FN4)
[26 Mass.App.Ct.
952]
We therefore conclude that in
the circumstances in this case the suppression motion should have been allowed
because there was no showing of present probable cause for the warrant to
issue. Because it is apparent from this
record that the Commonwealth cannot make its proof without reference to the suppressed
evidence, we reverse the judgment and order judgment for the defendant.
So ordered.
(FN1.) The defendant also claims that the
magistrate was not "informed of (1) some of the underlying circumstances
from which the informant concluded that the ['stolen or illegal' items were]
where he claimed [they were] (the basis of knowledge 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)."
Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985)
(Upton II), quoting from Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Because of our decision, we do not address
these concerns.
(FN2.)
The affidavit attached to the application for the search warrant read as
follows:
"I, Sgt
John G Colbert of the Duxbury, Massachusetts Police Department, being duly
sworn depose and say that on March 9, 1985, I received the following
information from Det Leonard Loyd
of the Marshfield Police Department. Det Loyd stated that a reliable
confidential informant referred to as CI‑A gave him information that the
items described in section four of the affidavit could be found at 44 Bay Rd,
Duxbury, Massachusetts. CI‑A told Det Loyd that he has seen the
items mentioned in section four and they are stolen or illegal, and are in the
possession of John T Morton of 44 Bay Road, Duxbury, Mass.
"Det Loyd based the reliability of
CI‑A on the following. In the
middle part of 1983 CI‑A gave him information concerning the selling of
illegal drugs. While serving a search
warrant contraband was seized including Cocaine. This contraband was found where CI‑A
described.
"During
the first part of 1984 CI‑A gave Det Loyd information that drugs could be found at a certain
location and while serving a search warrant, Cocaine, Marijuana, various pills,
a hypodermic needle and ammunition for a rifle and handgun were found.
"During
the first part of 1985 CI‑A gave Det Loyd information concerning the illegal sale of drugs. While serving a search warrant a large amount
of Marijuana, Cocaine and a handgun and cash were seized.
"Based
on this information I am requesting a search warrant for the premises of 44 Bay
Rd, Duxbury, Ma and the person of John T Morton of that address."
(FN3.) The fact that there is nothing in the
affidavit in regard to the timing of the informant's observations distinguishes
this case from those decisions where the time of the observation of the alleged
criminal activity is noted in the affidavit, but there is a gap between that
date and the issuance of the warrant.
The claim in those cases is that the information in the affidavit is
stale. See 2 LaFave, supra § 3.7(a). Also see Commonwealth v. Blye,
5 Mass.App.Ct. 817, 362 N.E.2d 240 (1977);
Commonwealth v. Higginbotham, 11 Mass.App.Ct.
912, 415 N.E.2d 229 (1981); Commonwealth v. DiStefano,
22 Mass.App.Ct. 535, 495 N.E.2d 328 (1986), for cases
that discuss the question of "stale" information.
(FN4.) In Commonwealth v. Atchue,
393 Mass. 343, 471 N.E.2d 91 (1984), and Commonwealth v. Jordan (No. 2), 397 Mass.
494, 492 N.E.2d 351 (1986), the court upheld search warrants although the times
of the observations of the criminal activity were not stated in the
affidavits. In both cases the court
stated that there were other facts before the issuing magistrate which
permitted a determination of present probable cause. In Atchue, the firearms were stated to be in a bus
terminal storage locker. The court
stated that items could not be stored in such lockers for a long period of
time. In Jordan, the court held that the omission of time of the
observations of drugs was not fatal because the affiant referred to
observations occurring while the police were executing a search warrant for the
same place issued by the same magistrate two hours earlier.
Here,
there were no other facts that would enable the issuing magistrate to determine
that there was present probable cause.