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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. Nowells, 390
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Brownlow M. Speer,
Kevin J. Ross, Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and
O'CONNOR, JJ.
WILKINS, Justice.
This
appeal presents the question whether unnamed informants' independent tips, none
of which alone would support a finding of probable cause to issue a search
warrant, may collectively provide a sufficient basis for concluding that the
informants were credible or that their information was reliable and thus
justify the issuance of a search warrant under the standards of the Fourth
Amendment to the Constitution of the United States. A judge of the Superior Court denied the
defendant's motion to suppress evidence obtained pursuant to a warrant issued
in such circumstances. Thereafter
another judge in a jury‑waived trial found the defendant guilty of (1)
the unauthorized possession of a shotgun with a barrel less than eighteen
inches in length (G.L. c. 269, § 10 [c] ), and (2) possession of marihuana
with intent to distribute (second offense) (G.L. c.
94C, § 32C). The defendant was sentenced
to serve a prison term on the indictment charging him with the unauthorized
possession of the sawed‑off shotgun.
The indictment for possession of marihuana with intent to distribute was
placed on file. We selected the case for
direct appellate review. We conclude
that the motion to suppress should have been allowed.
The only
evidence presented on the motion to suppress was the warrant, the affidavit in
support of the issuance of a warrant to search the defendant's apartment, and
the return. The significant portion of
the affidavit consisted of tips from three undisclosed informants. It was sworn to on
"[A]
On or about May 10th, 1980, I was introduced to a party who stated that a [n]
individual in Melrose by the name of Samuel H. Nowells
of 307 Main Street has been for approximately two years and is now selling Cocaine
and handguns out of that apartment. The
informant knows this to be fact after having been in the apartment on some
fifty (50) occasions and witnessing the guns and drug transactions. [390
Mass. 623] The informant knows also that Samuel H. Nowells has on occasion bought as much as fifty (50,000)
thousand dollars of Cocaine at a time for distribution and sale. Which Cocaine he keeps in his apartment.
"[B]
On May 20, 1980, I stopped a motor vehicle that was operated by a party who had
a name similar to Nowells. When I questioned him in error, the subject
stated that he was not the party that was dealing the guns and drugs, that the
party that I was interested in was 'Nowells,' and
that he knew him, and that he knew that he had guns for sale and he kept them
secreted in a panel in the walls of the apartment.
"[C]
On Tuesday, June 3, 1980, I met with another informant who states that: On or about Thursday, May 27, 1980, the
occupant of the apartment at 307 Main St., Melrose, Samuel H. Nowells, invited the informant inside the apartment. While in the apartment to get (turned on)
with cocaine, the informant observed
a dresser drawer with numerous handguns.
The informant also saw sawed‑off shot gun under the bed and was
shown by Samuel H. Nowells an automatic rifle
described as a military M‑16. It
was at this time that Samuel H. Nowells attempted to
sell the informant a handgun. The
informant also stated that Nowells is extremely
dangerous and may attempt to get to his weapons when approached by police."
A separate
analysis of the statements of each informant and what the balance of the
affidavit says about each informant shows that there is no basis for concluding
that the "veracity" prong of
Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct.
1509, 1514, 12 L.Ed.2d 723 (1964), was met.
There was no showing of "some of the underlying circumstances from
which the officer concluded that [any] informant ... was 'credible' or his
information 'reliable.' " Id.
Except as the cumulative, reinforcing nature of the informants' tips may
provide the necessary support, there is no allegation in the affidavit that
would corroborate the information supplied so as to support a finding of
probable cause. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317, 2334, 76 L.Ed.2d 527 (1983); Spinelli v. United
States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21
L.Ed.2d 637 (1969).
[390 Mass. 624] The question of mutually supportive tips is presented in this
case in a pure form because, as we shall demonstrate, there is no other support
in the affidavit for a determination that the informants' information was
reliable or that any informant was credible.
In a case in which independent police corroboration also supported the
finding of probable cause, the Appeals Court said that tips which might not
stand on their own "gained force from other tips which corroborated their
assertions." Commonwealth v. Kiley,
11 Mass.App. 939, ‑‑‑, 416 N.E.2d
980 (1981). Cf. Commonwealth v. Gisleson, 6 Mass.App. 911, 378 N.E.2d 1012 (1978) (three unnamed
informants, none of whose tips was based on personal knowledge, could not
reinforce each other so as to show the basis of their knowledge). The cumulative reinforcement of information
provided by unidentified informants has been given weight in other cases. See
United States v. McEachin, 670 F.2d 1139, 1143‑1144
(D.C.Cir.1981) (four disinterested, unnamed eyewitnesses to a crime identified
the defendant by name and address); United States v. Dauphinee,
538 F.2d 1, 4 (1st Cir.1976) (although police corroboration of details of
informer A's information was an adequate basis for finding probable cause, the
court relied in part on the fact that informant B gave limited corroboration of
A's statements).
The
subject of mutually reinforcing informants' tips has been considered by the
Court of Appeals for the Fifth Circuit more than by any other court. That court has acknowledged that "where
informers give tips that substantially corroborate each other that factor helps
establish the reliability of the tips." United States v. Martin, 615 F.2d 318,
326 (5th Cir.1980) (corroboration "in close detail"). In most cases considered in that court, the
informants' tips were corroborated at least in part by independent
investigation. Id. at 326. See
Williams v. Maggio, 679 F.2d 381, 391 (5th
Cir.1982); United States v. Hyde, 574 F.2d 856, 863
(5th Cir.1978) (detailed information of criminal conduct from ten informants
agreed in many particulars; some
information was verified by independent police investigation). Of the
[390 Mass. 625] cases in that
court, only one involved the issue whether mutually supporting tips standing
alone could provide an adequate ground for a finding of probable cause. In
Williams v. Maggio, supra, the issue was raised
in the context of the convicted defendant's claim of ineffective assistance of
counsel. He argued that his counsel
should have moved to suppress certain inculpatory
statements he made following his allegedly illegal arrest for the crime of
murder. The argument was that the
affidavit in support of the arrest warrant relied solely on information from
two confidential informants and that neither the informants' credibility nor
the reliability of their information was shown.
Each confidential informant stated that he had heard the defendant
talking with other identified persons about having robbed a
food store and having killed a guard.
Each informant gave specific detail, the second informant largely
corroborating the information of the first.
The court concluded that the failure of counsel to challenge the
admissibility of the defendant's statements was not ineffective assistance of
counsel.
We turn to
an analysis of the affidavit submitted in support of the search warrant in this
case. We shall refer to the informants
as informants A, B, and C, as set forth in the lettered paragraphs of the
affidavit quoted above. Informant A and
informant C gave the name and address of the defendant. Informant B did not. Informant A referred to seeing handguns and
drug transactions while in the apartment on many occasions. This statement adequately supplied the basis
of his knowledge of the presence of handguns and drugs in the defendant's
apartment. Informant B provided no basis
for his assertions concerning illegal sales of guns and drugs. Informant C said that he had been in the
apartment and had seen numerous handguns, an automatic rifle, and a sawed‑off
shotgun. He made no reference to seeing
drugs. Informant C, therefore, provided
the basis of his knowledge of the presence of weapons at the defendant's
apartment.
None of
the information provided by each informant itself provides a basis for
concluding either that he was credible[390
Mass. 626] or that his information was reliable, the
second or "veracity" prong of the test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as amplified in Spinelli v.
United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969). Although the
standards of the Aguilar and Spinelli
cases were relaxed by Illinois v. Gates,
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),
the Gates case, advancing a totality
of the circumstances analysis, did not eliminate the requirement that there be
some showing of the veracity of the information provided by an unnamed
informant. See Commonwealth v. Upton, ante 390 Mass. 562 at ‑‑‑,
458 N.E.2d 717 (1983); Illinois v. Gates, supra 103 S.Ct. at 2327.
[1][2][3]
The Commonwealth seeks to find support for the reliability of the information
provided by informant C because informant C stated that he entered the
defendant's apartment "to get (turned on) with cocaine." The Commonwealth argues that this was a
statement against informant C's penal interest and inherently provides his
credibility. There is no doubt that an
informant's declaration against his penal interest is a factor that the
magistrate may properly consider in determining probable cause. See
Commonwealth v. Vynorius, 369 Mass. 17, 21
(1975);
United States v. Harris, 403 U.S. 573, 583, 91 S.Ct.
2075, 2081, 29 L.Ed.2d 723 (1971) (plurality opinion); 1 W. LaFave, Search
and Seizure § 3.3, at 523 (1978). Of
course, if the police do not know who the informant is, any statement against
his penal interest cannot buttress his credibility. Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979). See 1 W. LaFave, supra at 525‑531. We shall assume, but it is not clear, that
the affiant knew who informant C was. If
an informant's statement does not provide a ground for concluding he committed
a crime, it is not a statement against his penal interest, does not "carry
[its] own indicia of credibility" (United
States v. Harris, supra 403 U.S. at 583, 91 S.Ct.
at 2082), and does not provide a basis for determining that his information is
reliable. Informant C's statement that
he was in the defendant's apartment "to get (turned on) with
cocaine," does not indicate that he committed a crime. An informant who was interested in getting
turned on with cocaine is not for that reason more credible than an informant
who expressed no view on the subject.
[390 Mass. 627] [4] The question then is whether there was adequate mutual
corroboration shown by the informants' statements themselves so as to justify
the magistrate's determination that there was probable cause to believe that
there was contraband in the defendant's apartment. We see no significant support in the
information supplied by informant B; he
had not been in the apartment. Informants A and C provided the basis of
their knowledge; but there is no showing
of the veracity of their information except as they may corroborate each
other. Informant A had seen undefined
drugs and handguns in the defendant's apartment at numerous times. Informant C made no reference to seeing drugs
but only to seeing guns (handguns, an automatic rifle, and a sawed‑off
shotgun). There is thus no corroboration
between the two concerning the presence of drugs. Informant A referred only to handguns. He did not corroborate informant C's
statement that there were a rifle and a sawed‑off shotgun on the
premises. The ownership or possession of
a handgun (or a rifle) is not a crime and standing alone creates no probable
cause. See Commonwealth v. Toole, 389 Mass. 159, 163, 448 N.E.2d 1264 (1983);
Commonwealth v. Stevens, 361 Mass. 868, 281 N.E.2d 224 (1972). In sum, the information that was corroborated
was the defendant's full name and address and the presence of handguns at his
apartment. Without other corroboration,
this information is not sufficient to show the informants to be credible or
their information to be reliable.
[5][6] We
recognize that unnamed informants' detailed statements corroborating each other
in significant, detailed respects, particularly as to criminal conduct or as to
the admission of serious wrongdoing by a person (see Williams v. Maggio, 679 F.2d 381, 391
(5th Cir.1982)), could alone support a finding of probable cause by
establishing the veracity of the informants.
However, applying the principles we believe are appropriate under the
decisions of the Supreme Court of the United States (see Commonwealth v. Upton, supra 390 Mass. at ‑‑‑,
458 N.E.2d 717), we conclude that the affidavit in this case does not provide
that necessary corroboration. The search
warrant was not issued on probable cause.
[390 Mass. 628] The Commonwealth argues alternatively that, if the warrant was
not issued on probable cause, the evidence seized pursuant to the search
warrant "should not be excluded because the police acted in a reasonable
good faith belief that their conduct was proper." At the time this argument was presented in
the Commonwealth's brief, the Gates
case was under advisement in the Supreme Court.
The question of the adoption of such an exception to the exclusionary
rule was thought to be presented in the
Gates case. Indeed, the Supreme
Court ordered reargument of the case on this very
question. Illinois v. Gates, 462 U.S. ‑‑‑‑,
‑‑‑‑, 103 S.Ct. 2317, 2321,
76 L.Ed.2d 527 (1983). However, when the Gates case was decided, the Supreme
Court concluded that the issue was not properly before it because the State of
Illinois had not made such an argument in the State courts. Illinois v. Gates, supra
103 S.Ct. at 2321‑2323. Each side in this case filed a supplemental
brief following the release of the decision in the Gates case.
[7] We
have declined to anticipate the Supreme Court's possible adoption of an
exception to the exclusionary rule based on the reasonable, good faith conduct
of the police in seeking and in executing a search warrant. See Commonwealth
v. Sheppard, 387 Mass. 488, 507‑508, 441 N.E.2d 725 (1982), cert.
granted, 463 U.S. 1205, 103 S.Ct. 3534, 77 L.Ed.2d
1386 (1983). The question continues to
be an open one, and until the Supreme Court concludes, if it ever does, that
the exclusionary rule should not apply where particular conduct in violation of
the Fourth Amendment was undertaken reasonably and in good faith, we shall not
attempt to fashion such an exception for Federal constitutional purposes. That is not our proper function.
Even if we
were to anticipate such an exception to the exclusionary rule, the
circumstances of this case might not fall within the scope of such an
exception. All that this record presents
is the fact that the warrant was sought and obtained on what we have concluded
was an inadequate showing of probable cause.
It may be that the issuance of a warrant alone would be sufficient to
fall within whatever exception to the exclusionary rule the Supreme Court might
fashion, but perhaps more would be required to fit within [390 Mass. 629] any such exception. On
this record, we know nothing of the state of mind of the officer who swore to
the facts on which the warrant was issued.
We also know nothing about whether the officer reasonably believed the
information on which he relied. We know
nothing about what investigations might reasonably have been conducted before
seeking the warrant. As to all of these
points, the burden of going forward with supporting evidence could
appropriately be placed on the Commonwealth, once a defendant has established
the absence of probable cause to issue the warrant. In this respect, in a sense, the search might
be treated as similar to a warrantless search, so as
to place at least the burden of going forward with evidence on the
Commonwealth. See Commonwealth v. Antobenedetto, 366 Mass.
51, 56, 315 N.E.2d 530 (1974).
In any
event, the issue of good faith, reasonable conduct was not presented to the
trial court. We may not be subject to
self‑imposed restraints against considering such matters for the first
time on appeal to the same degree that the Supreme Court concludes it is. See
Illinois v. Gates, supra 103 S.Ct. at 2321‑2323. We, however, would not be inclined to pass
on such an issue where factual determinations at the trial court level seem to
be required, or at least where the defendant should have had sufficient notice
of the claim so that the defendant could have offered evidence tending to show
that the police officer who sought the warrant lacked a reasonable, good faith
belief in the propriety of what he was doing.
See Commonwealth v. Upton, supra
390 Mass. at ‑‑‑, 458 N.E.2d 717 (question of the existence
of exigent circumstances justifying a warrantless
search may not be raised for the first time on appeal).
The
judgment on the charge of unauthorized possession of a shotgun with a barrel
less than eighteen inches in length is reversed and the finding of guilt is set
aside. The order denying the defendant's
motion to suppress is also vacated, and an order shall be entered allowing the
motion to suppress.
[8][9]
Ordinarily, we do not consider appeals in cases placed on file. See
Commonwealth v. Boone, 356 Mass. 85, 88, 248 N.E.2d 279 (1969). The defendant's conviction of possession of
marihuana with [390 Mass. 630] intent to distribute (second offense)
was placed on file in open court, the defendant not objecting. However, there is no showing on the record of
the defendant's affirmative assent. See Commonwealth v. Delgado, 367 Mass. 432,
438, 326 N.E.2d 716 (1975). We need not
pause over the question whether the defendant's silence can be treated as an
assent to the filing of the indictment.
Assuming that he did assent, the suppression issue is the same as to
each indictment. The conviction on the
filed indictment is thus subject to the same weakness as is the conviction on
the indictment on which he was sentenced.
No adverse consequences to the defendant should come from the finding of
guilt on the indictment placed on file.
The indictment placed on file should be removed from its present status
and appropriate relief granted consistent with the relief ordered in the case
in which the defendant was sentenced.
So ordered.
LYNCH,
Justice (concurring).
The majority opinion of
the court relies in part upon
Commonwealth v. Upton, ante 390 Mass. 562, 458 N.E.2d 717 (1983), in which
I dissented. Here, I agree that the
affidavit, taken as a whole, fails to provide probable cause for the issuance
of the search warrant even under the more relaxed standard that I would apply