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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. Olsen, 405
Appeals Court of Massachusetts, Middlesex.
No. 90‑P‑964.
Argued
Decided
Eileen D. Agnes,
Miranda S. Jones, Asst. Dist. Atty., for the Com.
Before KASS, PORADA & LAURENCE, JJ.
PORADA, Justice.
From his
two convictions by a jury in the Superior Court of trafficking in cocaine, the
defendant appeals. He assigns as errors
the denial of his motion to suppress evidence[30 Mass.App.Ct.
597] seized in two searches, one at his
business premises at the time of his arrest without a search warrant, and the
other at his home with a search warrant after his arrest; the denial of his motion for a mistrial based
on impermissible comment by the prosecutor during his opening to the jury; and deprivation of effective assistance of
counsel at the time of sentencing. We
affirm one conviction and set aside the other.
1. Motion to suppress.
a. Warrantless
search. The defendant contends that
the police lacked probable cause to arrest him without a warrant and to search
without a warrant the area within his immediate control at the time of his
arrest at his workplace. We disagree.
We
summarize the pertinent facts on which the judge based his denial of the motion. On
After
searching
[1][2][3]
The defendant's argument that the police lacked probable cause to arrest is
based on the premise that Jose Braga must be treated
as a confidential informant and that the underlying circumstances known to the
police failed to satisfy the credibility or reliability and basis of knowledge
tests for confidential informants. Commonwealth v. Upton, 394 Mass. 363, 374‑376,
476 N.E.2d 548 (1985). Commonwealth v. Bottari,
395 Mass. 777, 783, 482 N.E.2d 321 (1985).
These tests, however, are relaxed when the informant is a named and
identified person, "whether as a participant in, victim of, or eyewitness
to a crime." Commonwealth v. Atchue,
393 Mass. 343, 348 n. 4, 471 N.E.2d 91 (1984). Commonwealth v. Harding, 27
Mass.App.Ct. 430, 434‑435, 539 N.E.2d 83
(1989). Here, Braga's
admission to participating in drug buys from the defendant after his arrest at
a time when he would be fearful of prosecution and retaliation from the police
for furnishing false information (Commonwealth
v. Melendez, 407 Mass. 53, 56‑58, 551 N.E.2d 514 [1990];
Commonwealth v. Parapar, 404 Mass. 319,
320, 322, 534 N.E.2d 1167 [1989] ) and his actual participation in a controlled
buy from the defendant (Commonwealth v. Benlien, 27 Mass.App.Ct. 834,
838‑839, 544 N.E.2d 865 [1989] ), independent police observations of Braga's calls to the defendant's home, and the meeting
between Braga and the defendant at the arranged buy
time were sufficient to satisfy the requirements of reliability and basis of
knowledge and to establish probable cause for the arrest. Compare
Commonwealth v. Minh Ngo, 14 Mass.App.Ct.
339, 339‑341, 439 N.E.2d 839 (1982) (defendant conceded probable cause on
facts similar to those presented here).
Probable cause does not require a showing that the police [30 Mass.App.Ct. 599] had resolved all their doubts. All that was required was that " 'the
facts and circumstances within ... [the officers'] knowledge and of which they
had reasonably trustworthy information [were] sufficient in themselves to
warrant a man of reasonable caution in the belief that' an offense [had] been
or [was] being committed." Commonwealth v. Hason,
387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from Brinegar v. United States, 338 U.S. 160,
175‑176, 69 S.Ct. 1302, 1310‑1311, 93 L.Ed. 1879 (1949).
[4][5] The
defendant also challenged the entry of the police into the building and their
search of the area within his immediate control without an arrest warrant or
search warrant on the ground the police lacked exigent circumstances. The judge found the 1:00 P.M. buy was
arranged at 10:00 A.M. on the same day but made no factual findings regarding
exigent circumstances. This omission is
not fatal where the ultimate conclusion is clearly evident from the record and
implicit in the denial of the motion.
See Commonwealth v. Lanoue, 392 Mass. 583, 586 n. 2, 467 N.E.2d 159
(1984). "To qualify as exigent
circumstances, the situation facing the officers at the time they commenced
their warrantless search must be such that it was
impracticable for them to get a warrant." Commonwealth v. Cast, 407
Mass. 891, 904, 556 N.E.2d 69 (1990).
Probable cause to arrest did not occur here until the informant emerged
from the building and gave the prearranged signal that the buy had been
completed. See Commonwealth v. Cast, supra at 904‑905, 556 N.E.2d 69;
Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 233‑235, 450 N.E.2d 656 (1983). At that time, there existed a real
"likelihood that the delay attendant upon securing a warrant would
facilitate the destruction of evidence." Commonwealth v. DiSanto, 8 Mass.App.Ct. 694,
700, 397 N.E.2d 672 (1979). See also
Commonwealth v. Skea, 18 Mass.App.Ct. 685, 691‑692, 470 N.E.2d 385
(1984). Compare Commonwealth v. Hamilton,
24 Mass.App.Ct. 290, 293‑294, 508 N.E.2d 870
(1987). We conclude that the
circumstances were exigent.
[6] b. Search with a warrant. The defendant, however, is on solid ground
with his challenge to the search of his home, [30 Mass.App.Ct.
600] made with a search warrant (FN1) immediately after his arrest. The affidavit in support of the application
for a warrant did not show probable cause for the search.
[7][8] The
affidavit contained the information, summarized above, which led to the
defendant's arrest, plus statements of the affiant that the search of Braga following the arrest had produced four plastic bags
containing white powder. Those bags, the
affidavit recited, field tested positive for cocaine, and the buy money, with
the exception of the two fifty‑dollar bills seized at the time of the
defendant's arrest, had not been recovered.
The standard for probable cause is "whether [the magistrate] has a
substantial basis for concluding that any of the articles described in the
warrant are probably in the place to be searched.... Strong reason to suspect is not
adequate." Commonwealth v. Upton, 394 Mass. 363,
370, 476 N.E.2d 548 (1985). Commonwealth v. Jean‑Charles, 398
Mass. 752, 757, 500 N.E.2d 1332 (1986).
The establishment of probable cause to believe that "a person is
guilty of a crime does not necessarily constitute probable cause to search the
person's residence." Commonwealth v. Cinelli,
389 Mass. 197, 213, 449 N.E.2d 1207 (1983).
The connection between the items to be seized and the place to be
searched does not have to be based on direct observations; it may be found by looking at the type of
crime, nature of the items, the suspect's opportunity to conceal items, and
inferences as to where the items are likely to be hidden. Ibid. Commonwealth v. Wright, 15 Mass.App.Ct. 245, 250‑251, 444 N.E.2d 1294
(1983). Here there was no specific
information in the affidavit which tied the defendant's residence
to illegal drug transactions, other than that he lived at those premises. See Commonwealth v. Kaufman, 381 Mass. 301,
304, 408 N.E.2d 871 (1980) ("Notably absent is reliable specific
information from any quarter placing illegal drugs or drug transactions there
in the past ..."). The drug
transaction occurred within the confines of the defendant's business premises
and the defendant was not observed to have carried anything into the premises
prior to the transaction. There was no
probable cause to search the [30 Mass.App.Ct. 601]
defendant's residence. See
Commonwealth v. Kaufman, supra at 304, 408 N.E.2d 871;
Commonwealth v. Saleh, 396 Mass. 406, 411,
486 N.E.2d 706 (1985). The motion to
suppress the drugs found in the defendant's home should have been allowed.
[9] 2. Motion for a mistrial. During the prosecutor's opening statement,
the prosecutor told the jury that in the course of a narcotics investigation in
Hudson, the police had arrested one Jose Braga for
eleven counts of distribution and trafficking in cocaine. He then stated to the jury:
"Jose [Braga] ... agreed to turn over his supplier to the Hudson
Police Department. He agreed to make a
purchase of drugs from someone named Orlando Olivares."
The
defendant made no objection to the prosecution's opening remarks. At the conclusion of the defendant's opening
statement, the court, sua sponte,
called a side bar conference to discuss those comments. The defendant then moved for a mistrial. The judge ruled he would not declare a mistrial
but would give a limiting instruction, which he did. In his instructions to the jury, he told them
to disregard the prosecutor's statements, which he said were hearsay and could
not be considered during the course of their deliberations. The judge also reminded the jurors of his
previous instruction that opening statements were not evidence. During the course of the trial, the remark
was not repeated.
[10][11]
The decision whether to declare a mistrial is a matter within the judge's
discretion. Commonwealth v. Simmonds,
386 Mass. 234, 241, 434 N.E.2d 1270 (1982). Commonwealth v. Amirault,
404 Mass. 221, 232, 535 N.E.2d 193 (1989).
Evidence of a defendant's prior criminal activity is not generally
admissible at trial. Commonwealth v. Cunneen,
389 Mass. 216, 223, 449 N.E.2d 658 (1983).
Here, the judge relied on curative instructions to correct any error and
to remedy any prejudice. See Commonwealth v. Helfant,
398 Mass. 214, 228‑229, 496 N.E.2d 433 (1986). The remark was not repeated during the
trial; it was apparently inadvertent;
(FN2) the [30 Mass.App.Ct.
602] substance of the remark was substantiated by proof that the defendant did
supply Braga with drugs; and the evidence of the defendant's guilt was
otherwise strong. In these circumstances,
the judge's instructions were sufficient to avert any prejudice to the
defendant. Commonwealth v. Cunneen,
389 Mass. at 223‑224, 449 N.E.2d 658. Commonwealth v. Crichlow,
30 Mass.App.Ct. 901, 902‑903, 565 N.E.2d 816
(1991). There was no abuse of the
judge's broad discretion in refusing to declare a mistrial.
3. Ineffective assistance of counsel. The defendant claims that he was deprived of
effective assistance of counsel because his counsel failed to address the court
on his behalf at the time of sentencing and to present any information in
mitigation of his punishment. See Commonwealth v. Lykus,
406 Mass. 135, 144‑146, 546 N.E.2d 159 (1989). He claims prejudice because the court imposed
two consecutive sentences rather than concurrent ones of three to five years in
State prison on the two charges of trafficking in cocaine. (FN3)
We need not address this argument because our holding today vacates the
defendant's conviction on one of these charges.
The
conviction of trafficking in cocaine based on the seizure of cocaine at the
time of the defendant's warrantless arrest is
affirmed. The conviction of trafficking
in cocaine based on the seizure of cocaine at the defendant's residence is
reversed and the verdict is set aside.
So ordered.
(FN1.) In a closet in the master bedroom of
the home, the police found 30.79 grams of cocaine.
(FN2.) The trial judge so concluded.
(FN3.) The defendant received a lighter
sentence than mandated by G.L. c. 94C, § 32E(b )(2), which on the date of the defendant's
offenses, November 19, 1988, provided for a minimum term of imprisonment of
five years and a maximum of twenty years.