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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. Perez-Baez, 410
Supreme Judicial Court of Massachusetts,
Argued
Decided
Nijole Makaitis,
Asst. Dist. Atty., for the Com.
John D. Hodges, Jr., for defendant.
Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY,
JJ..
NOLAN, Justice.
We are
called upon to determine whether a clerk‑magistrate, relying in part on
information provided by an unnamed informant, was justified in finding probable
cause to issue a search warrant. The
Commonwealth appeals from the suppression of evidence seized during the
execution of the warrant. We determine
that the affidavit in support of [410
Sometime
after
The
informant told Detective Gosselin that a man named
Luis Garcia (this name is an alias for the defendant) picked up the informant
and a friend and drove the
On
In order
for a search to be valid under art. 14 of the Declaration of Rights of the
Commonwealth, it must be supported by probable cause. (FN1) Commonwealth v. Upton, 394 [410 Mass. 45] Mass. 363, 476 N.E.2d 548 (1985).
The information contained in the unknown informant's tip was sufficient,
if the magistrate could properly rely upon it, to support a finding of probable
cause. In Upton, we stated that "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 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)' " (citations omitted). Id. at 374‑375, 476
N.E.2d 548.
[1] In
this case, the basis of the informant's knowledge is established. He was present at the sale and therefore had
personal knowledge based upon what he saw.
The only inquiry remaining, therefore, is into the veracity of the
informant.
[2] This
test may be satisfied by demonstrating that the informant has provided
information in the past which has proved to be accurate. Commonwealth v. Valdez, 402
Mass. 65, 71, 521 N.E.2d 381 (1988). In
this case, the affidavit stated that the informant had provided information
which had led to two separate arrests for possession of cocaine and seizure of
the cocaine incident to those arrests.
(FN2) At the time, the cases were
still pending in the District Court. The
defendant argues that because the affidavit here states that the prior tips
have led to mere arrests, rather than convictions, the case of Commonwealth[410 Mass. 46] v. Rojas, 403 Mass. 483, 531 N.E.2d 255
(1988), precludes reliance upon the information.
In Rojas this court held that "[a]
naked assertion that in the past the informant had provided information which
led to a prior arrest is insufficient by itself to establish an informant's
veracity." Id. at 486, 531 N.E.2d 255. We said, in effect, that a clerk‑magistrate
was not entitled to infer from such a statement that a prior tip had proved to
be accurate. In this case, however, the
affidavit recited that the prior tip had led not only to arrests, but also to seizure of cocaine. This distinction is critical. Applying the well established principle that
information in an affidavit supporting an application for a search warrant
should be considered "in an ordinary, commonsense manner without hypertechnical analysis," Commonwealth v. Melendez, 407 Mass. 53, 60, 551 N.E.2d 514 (1990)
(Greaney, J., dissenting), we construe the recitation
in this case as meaning that the prior tip stated that a search of a particular
specified location would disclose cocaine or some similar substance, and that
statement proved to be correct. The
accuracy of such information, then, warranted an inference that the informant
was reliable. See Commonwealth v. Lapine, 410 Mass. 38,
571 N.E.2d 2 (1991). We conclude,
therefore, that the affidavit in this case satisfied both the basis of
knowledge test and the veracity test set forth in Commonwealth v. Upton, supra.
The
warrant was, therefore, supported by probable cause. The order of the Superior Court judge improperly
suppressing the evidence is vacated. The
case is remanded for further proceedings consistent with this opinion.
So ordered.
(FN1.) Article 14 states: "Every subject has a right to be secure
from all unreasonable searches, and seizures, of his person, his houses, his
papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation; and if the order in the warrant to a civil
officer, to make search in suspected places, or to arrest one or more suspected
persons, or to seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in
cases, and with the formalities prescribed by the laws."
(FN2.)
The affidavit states in relevant part:
"Your affiant has a reliable and confidential informant henceforth
referred to as 'IT'. On several
occasions in the past, 'IT' has provided information leading to the arrest of
persons for drug offenses and seizures of controlled substances. On one of these occasions, 'IT' provided
information leading to the arrest of Rafael TEJEDA
for Possession Class 'B' cocaine, seized was one plastic bag containing a white
powder. On another occasion, 'IT'
provided information leading to the arrest of William SANCHEZ for Possession
Class 'B' cocaine, seized was a bag containing white powder. Because both of these arrests are very
recent, they are both pending in the West Roxbury District Court."