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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. Reddington, 395
Supreme Judicial Court of Massachusetts,
Argued
Decided
John C. McBride,
Richard D. Savignano, Asst. Dist. Atty., for
Commonwealth.
Before [395
LYNCH, Justice.
As the
result of a ruse carried out by the
First, the
defendant contends that a police‑initiated telephone call to his house by
a police informant constituted a warrantless constructive entry into his house,
and that any evidence seized as the result of that call must be
suppressed. Second, he contends that the
warrantless search of his automobile trunk was not supported by probable cause
and, therefore, that the evidence discovered there, as well as the evidence
seized in his house (as a result of the trunk search), must be suppressed. Third, he claims that the affidavit of the
police officer who obtained the search warrant contained misstatements of fact
made with knowledge of their falsity or with reckless disregard of the truth,
and that the affidavit, when stripped of these misstatements, does not show
probable cause. On that ground, he urges
that the search warrant for his house be invalidated and the evidence seized
there suppressed. The defendant also [395 Mass. 317] claims that all the indictments against him should be dismissed
because of alleged knowingly false or reckless statements made by the same
police officer before the grand jury.
We decide
that the defendant has failed to show that the police officer's testimony
before the grand jury included any false statements made knowingly or with
reckless disregard of the truth.
Therefore, the judge was warranted in denying the defendant's motion to
dismiss. However, we conclude that under
the principles adopted in Commonwealth v.
Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), the police lacked probable
cause to search the trunk of the defendant's automobile. Therefore, the evidence discovered in the
trunk, as well as the evidence found in the house (the fruits of that warrantless
trunk search), must be suppressed. (FN2)
The facts
are as follows. The defendant was
suspected of being involved in illegal drug distribution by the Plymouth police
after his name and address were found in a ledger seized in 1979 from someone
subsequently convicted of drug trafficking violations. In January, 1982, a reliable informant told
Officer William Curtis of the Plymouth police department that the defendant was
dealing in marihuana and cocaine, and that the informant had recently been in
the defendant's house and had witnessed drug transactions taking place. No action was immediately taken as a result
of this tip. However, on August 30,
1982, another reliable informant told Officer Curtis that he had heard that the
defendant had a large amount of unspecified drugs in his house at the
time. Officer Curtis had also heard from
various informants of unestablished reliability on six occasions between
January and August that the defendant was involved in drug dealing.
Despite
these tips, Officer Curtis did not believe that he had sufficient evidence to
establish probable cause and to obtain a warrant to search the defendant's
house. Therefore, after consultation
with a superior officer, he designed a ruse in the hope of uncovering sufficient
additional information to establish [395
Mass. 318] probable cause. Officer Curtis arranged with an informant to
telephone the defendant at exactly 10:30 P.M., on August 30, and to tell the
defendant that the police had obtained a warrant to search his house and would
arrive soon. Shortly before 10:30,
Officer Curtis positioned himself behind some bushes in view of the defendant's
house. The telephone call was made, with
the informant stating, "Get out of your house. The State Police are going to get a
warrant."
The motion judge found that, shortly after
the telephone call, Officer Curtis observed one Jay Labell come out of the
defendant's house and move his automobile out of the driveway (where it blocked
the defendant's automobile), after which he returned to the house. The defendant then backed up his automobile
over the grass to the kitchen door, got out, and opened the trunk. Officer Curtis recognized the defendant, who
was illuminated by the trunk light. Jay
Labell then came running through the kitchen door and Officer Curtis saw him
load "something" into the trunk.
The defendant then closed the trunk and drove away. (FN3)
Officer
Curtis followed in his cruiser, as did another officer in a second
cruiser. When the police flashed their
lights, the defendant did not immediately stop.
After a "low speed chase" of about one‑half mile,
Officer Curtis cut off the defendant's automobile and forced him to stop. The officers approached the automobile, and
the defendant, who looked nervous, produced a valid license and registration. Both officers claimed that they detected a
strong odor of marihuana emanating from the trunk, but the motion judge found
that the marihuana was encased in an unopened cardboard box wrapped in plastic,
and that it could not have been detected by smell. The police then asked the defendant to open
the trunk, and when he did so, they observed a fifty‑pound bale of
marihuana and nine one‑pound plastic bags of marihuana. The defendant was arrested, and, based on the
marihuana found in the trunk, Officer Curtis [395 Mass. 319] sought
and obtained a warrant to search the defendant's house for controlled
substances and related contraband.
During the
house search, the police found three or four more pounds of marihuana in the
ceiling of the basement, weighing scales, numerous plastic bags, and other drug
paraphernalia. Various items of stolen
property were also recovered. In
addition, the police found five small glass bottles containing over 100 grams
of a white powder, and a small humidor containing a lump of yellow powder. After performing field tests on these
substances, one police officer informed Officer Curtis that the yellow powder
was opium, and that the white powder was cocaine. However, subsequent laboratory tests showed
that the yellow powder was a nonnarcotic substance, and that only 7.62 grams of
the white powder was cocaine.
1. Motion to dismiss. The defendant argues that Officer Curtis's
testimony before the grand jury, that opium and over 100 grams of cocaine had
been found in the defendant's house, was false.
He also asserts that this false testimony was made knowingly or with
reckless disregard of the truth, and that, as a prophylactic measure to
discourage such police tactics, all the indictments against him should be
dismissed. We do not agree.
[1]
"Our review of the propriety of any indictment is limited to determining
whether the grand jury received sufficient evidence to find probable cause for
arrest ... and whether the integrity of the grand jury proceedings was
impaired" (citation omitted). Commonwealth v. McGahee, 393 Mass. 743,
746‑747, 473 N.E.2d 1077 (1985).
The defendant argues only that Officer Curtis's inaccurate testimony
before the grand jury impaired the integrity of that proceeding. In so arguing, the defendant correctly states
the rule that the knowing use of false testimony by the Commonwealth or one of
its agents may impair the integrity of grand jury proceedings and is a ground
for dismissing the indictments. Commonwealth v. Bongarzone, 390 Mass.
326, 338, 455 N.E.2d 1183 (1983). Commonwealth v. Salman, 387 Mass. 160,
166‑167, 439 N.E.2d 245 (1982).
However, that is not the situation in this case.
[2] The
defendant has failed to establish that the Commonwealth or Officer Curtis knew
or should have known that the testimony
[395 Mass. 320] in question was
false or inaccurate. The judge found
that Officer Curtis "was merely repeating what some other experienced
officer had told him the result of his field test was, and in good faith." (FN4)
Furthermore, it is undisputed that the laboratory analysis of the
substances seized in the defendant's house was not completed at the time that
Officer Curtis testified before the grand jury.
(FN5) The defendant has not
advanced any valid reason to question the judge's findings or to suggest that
Officer Curtis's grand jury testimony included anything more than inaccurate
statements made by a witness in good faith.
Noticeably absent is any hint of perjury. Contrast
Commonwealth v. Salman, supra at 166 n. 4, 439 N.E.2d 245, and cases
cited. Since dismissal of all the
indictments as a prophylactic measure is a "remedy for deliberate and
intentional violations of constitutional rights," Commonwealth v. Manning, 373 Mass. 438, 444, 367 N.E.2d 635
(1977), it would not be appropriate in this case. Compare
Commonwealth v. O'Dell, 392 Mass. 445, 448‑449, 466 N.E.2d 828 (1984)
(distortion of defendant's statement), and
Commonwealth v. Salman, supra, 387 Mass. at 167, 439 N.E.2d 245 (large
number of indictments obtained through knowing use of false testimony), with Commonwealth v. McGahee, supra, 393
Mass at 747, 473 N.E.2d 1077 (withheld exculpatory evidence did not distort
case presented to grand jury), and
Commonwealth v. Bongarzone, supra, 390 Mass. at 338‑339, 455 N.E.2d
1183 (false testimony not calculated to procure indictments). Therefore, we hold that the defendant's
motion to dismiss all the indictments against him was properly denied.
2. Probable cause. The defendant also argues that the police
did not have probable cause to search the trunk of his automobile. Furthermore, he contends that, because
probable cause to search his house was predicated on the marihuana [395 Mass. 321] discovered in the trunk search, the evidence found in his house
must also be suppressed as the fruit of the illegal trunk search. On the basis of this court's decision in Commonwealth v. Upton, 394 Mass. 363,
476 N.E.2d 548 (1985), we agree that probable cause was lacking.
As a
preliminary matter, since the defendant does not argue that the police lacked a
reasonable basis to suspect him of criminal activity, we will assume that they
had the right to stop the defendant in his automobile for a threshold
inquiry. See, e.g., Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984); Commonwealth
v. Thibeau, 384 Mass. 762, 736, 429 N.E.2d 1009 (1981). See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). Similarly, the Commonwealth does
not contest the motion judge's finding that the police could not smell marihuana
in the defendant's trunk when they approached the automobile, and we therefore
consider that finding to be correct.
Thus, nothing was discovered during the course of the Terry stop that gave the police
probable cause to believe that contraband was hidden in the trunk.
There are
five factors in the affidavit which alone or in combination could arguably
establish probable cause: (1) the
appearance of the defendant's name in a ledger used by a convicted drug
offender to record illegal drug sales; (2)
the January tip; (3) the six
"dealing drugs" tips of unestablished reliability; (4) the August 30 tip; and (5) the observations of Officer Curtis on
August 30. The fact that the defendant's
name appeared in the ledger would not in and of itself establish probable cause
to search the trunk or the house. By the
same token, it is clear that Officer Curtis's observations on August 30 are
also
insufficient. He merely observed that, shortly after the
prearranged telephone call, the defendant backed up his automobile to the
house, another person loaded "something" into the trunk, and the
defendant drove away slowly. None of
these observations is particularly suggestive of criminal behavior. (FN6)
Cf. Commonwealth v. Kaufman,
381 Mass. 301, 304‑[395 Mass.
322] 305, 408 N.E.2d 871
(1980). Thus, the issue is whether the
information provided to Officer Curtis by various unnamed informants was
sufficient to establish probable cause.
[3] In Commonwealth v. Upton, 394 Mass. 363,
476 N.E.2d 548 (1985), this court held that, under art. 14 of the Massachusetts
Declaration of Rights, the test for determining probable cause in cases
involving unnamed informants incorporates the principles developed under 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). Thus, to establish probable
cause, an affidavit based on information from an unnamed informant must provide
the magistrate with facts showing some of the underlying circumstances leading
to the informant's knowledge, as well as his reliability. Commonwealth v. Upton, supra
394 Mass. at 375, 476 N.E.2d 548. See Aguilar v. Texas, supra 378 U.S. at
114, 84 S.Ct. at 1514. If the
informant's tip fails to satisfy one of these portions of the Aguilar test, other independent,
corroborating allegations in the affidavit may supplement the informant's tip
to support a finding of probable cause. Commonwealth v. Upton, supra. See
Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588. Nevertheless, "[e]ach prong of the Aguilar‑Spinelli test‑‑the
basis of knowledge and the veracity of the informant‑‑presents an
independently important consideration." Commonwealth v. Upton, supra 394 Mass. at
375‑376, 476 N.E.2d 548.
[4] The
August 30 tip does not meet these standards.
While the defendant has conceded the reliability of the informant, the
affidavit fails to disclose an adequate basis of knowledge to infer probable
cause to believe that the defendant had "a large amount of drugs on hand,
in his house, at this time." The
affidavit states only that the informant "had been told" this
information. See Commonwealth v. Kaufman, supra 381 Mass. at 304, 408 N.E.2d 871
("general averment unrevealing of any source in actual observation"
insufficient).
[5][6]
Neither is the January tip sufficient to establish that probable cause existed
in August. That informant, who the
defendant also concedes was reliable, related first‑hand observations of
illegal drug transactions in the defendant's house. However, probable cause must be established
by facts "closely related to the time of the issue of the warrant."
Commonwealth v. [395 Mass.
323] Atchue, 393 Mass. 343, 349,
471 N.E.2d 91 (1984), quoting Sgro v.
United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260
(1932). The question is whether
"the facts alleged in the [affidavit] furnish probable cause to believe, at the time the search was actually
conducted, that evidence of criminal activity was located at the premises
searched" (emphasis added). United States v. McCall, 740 F.2d 1331,
1336 (4th Cir.1984). The January tip
relates only to a single instance of illegal conduct. It is therefore "[o]ut‑of‑date
information as to a single transaction [that] could be seen to describe no more
than an isolated event in the past ... [and that] would not create probable
cause to believe that similar or other improper conduct is continuing to
occur." United States v. Weinrich, 586 F.2d 481,
491 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402
(1979).
United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972). Contrast
United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir.1983), cert.
denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984) (documents likely
to be maintained on premises); United States v. Tucker, 638 F.2d 1292,
1299 (5th Cir.), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981) ("affidavit described
in detail an ongoing criminal operation observed on seven different occasions
over an eight‑month period"); United States v. Martino, 664 F.2d 860,
867 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373
(1982) (continuing illegal transactions with reliable informant). While "[p]rotracted and continuous
activity is inherent in a large‑scale narcotics operation," United States v. Harris, 482 F.2d 1115,
1119 (3d Cir.1973), no such operation is evident from the affidavit in this
case. In a word, the January tip had
become "stale."
[7][8] In
an effort to overcome this problem, the Commonwealth points out that, "if
an affidavit recites activity indicating protracted or continuous conduct, time
is of less significance." Commonwealth v. Vynorius, 369 Mass. 17,
25, 336 N.E.2d 898 (1975), quoting
Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.1973). If the Commonwealth could establish a
continuing pattern of illegal conduct by the defendant, the January tip would
no longer be stale, and could provide the necessary basis of knowledge lacking
elsewhere in the affidavit.
Theoretically, the August tip, the intervening "dealing drugs"
tips of undetermined [395 Mass. 324] reliability, and Officer Curtis's own
observations on August 30, could demonstrate such a continuing course of
illegal conduct. In fact, however, the
Commonwealth has not made such a showing.
Simply
stated, none of the three possible linking factors adequately shows continuous
illegal conduct. The "dealing
drugs" tips were made by informants of unestablished reliability, with no
apparent basis for knowledge, aside from perhaps a "casual rumor
circulating in the underworld or an accusation based merely on an individual's
general reputation." Spinelli v. United States, 393 U.S. 410,
416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969).
While repeated reports from independent sources of unknown reliability
may cumulatively establish their
reliability, see United States v.
Hyde, 574 F.2d 856, 863 (5th Cir.1978), mere repetition of rumor does
nothing to meet the basis of knowledge test.
(FN7) The same element is lacking
in the August tip. "The most
important [factor] ... of continuity is the number and quality of observations
which seek to establish a continuing criminal activity." Comment, A Fresh Look at Stale Probable
Cause: Examining the Timeliness
Requirement of the Fourth Amendment, 59 Iowa L.Rev. 1308, 1313 (1974). No basis of knowledge sufficient to show any
illegal activity after January is shown by these tips.
[9] It is
also true that "independent police corroboration can make up for
deficiencies in either or both prongs" of the Aguilar‑Spinelli test. Commonwealth v. Upton, supra 394 Mass. at
376, 476 N.E.2d 548. But the police
investigation in this case adds nothing to alleviate the lack of a sufficient
explanation of the underlying circumstances showing criminal activity. As we noted earlier, Officer Curtis did not
discover any information during his surveillance of the defendant's house on
August 30 that would corroborate either element of the prior tips.
Therefore,
considering the affidavit as a whole, see
Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213 (1971), we
cannot say that the police had probable cause to search the trunk or the [395 Mass. 325] house. Our view does not
result from any hypertechnical application of the law, but is simply a
reaffirmation that the "[r]ecital of some of the underlying circumstances
in the affidavit is essential if the magistrate is to perform his detached
function and not serve merely as a rubber stamp for the police."
Commonwealth v. Atchue, supra 393 Mass. at 346, 471 N.E.2d 91,
quoting United States v. Ventresca,
380 U.S. 102, 108‑109, 85 S.Ct. 741, 745‑746, 13 L.Ed.2d 684
(1965). Since the basis of knowledge
element of the Aguilar‑Spinelli
test is "an independently important consideration ... [it] must be
separately considered and satisfied or supplemented in some way" (citation omitted). Commonwealth v. Upton, supra 394 Mass. at
375‑376, 476 N.E.2d 548. That
element was not satisfied in this case, and therefore, the evidence must be
suppressed, the judgments reversed, and the findings set aside. (FN8)
So ordered.
(FN1.) Several indictments relating to
possession of stolen property were placed on file with the defendant's
consent. Another indictment had been
dismissed prior to trial, see note 5,
infra.
(FN2.)
Since all the evidence must be suppressed on this ground, we do not address the
other theories argued by the defendant in support of his motion.
(FN3.)
In his affidavit, Officer Curtis stated that the defendant backed up his
automobile to the garage, rather than the kitchen door, and that the defendant,
not Jay Labell, loaded something into the trunk. The affidavit did not mention the
"frenetic activity" found by the judge.
(FN4.)
The judge made this finding after the defendant's counsel had the opportunity
to question Officer Curtis in a voir dire.
(FN5.)
At the later hearing on the defendant's motion to dismiss, when the results of
the laboratory tests were available, the Commonwealth asked the judge to
dismiss the indictment charging possession of opium and so much of another
indictment charging trafficking in cocaine.
The judge dismissed the opium indictment, and the second indictment was
appropriately tailored at trial.
(FN6.)
The circumstances would be different had Officer Curtis been able to see that
the "something" loaded into the trunk was in fact marihuana.
(FN7.)
We note that in Hyde, the court
specifically set out the detailed personal observations of the various informants
that were contained in the affidavit.
(FN8.) The
motion to suppress was denied before this court's decision in Commonwealth v. Upton, 394 Mass. 363,
476 N.E.2d 548 (1985), in which the court adopted the Aguilar‑Spinelli test for probable cause as the standard
required by our State Constitution.
Under the "totality of the circumstances" test applied by the
judge in deciding the motion (see
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 [1983] ),
his decision may well have been correct.