|
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. Reyes, 423
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Michael J. Hickson,
Assistant District Attorney, for Commonwealth.
Robert J. Danie,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.
LIACOS, Chief Justice.
[1] On
The
affidavit in support of the search warrant stated as follows: "On 11‑24‑91 Captain
Paquette of the Uniform Division received a phone call from a Cooperating Member
of the Community [ (CI) ] who told him that there was a large quanity [sic ] of
Cocaine at 5 Grant in a second floor apartment.
The CI further told Captain Paquette that two Col[o]mbians
operating a white blazer, New York Registration E6J964, had arrived in Holyoke
on 11‑22‑91 and that this motor vehicle was parked in the rear of 5
Grant Street. The CI also told Captain
Paquette that they had brought approximately two to three Kilo‑Grams
which the CI had seen in the Grant Street, second floor apartment. The CI stated that the white blazer would be
leaving on 11‑24‑91 with $300,000 to $400,000 which was made from
the sale of Cocaine.
"On
11‑24‑91 Officer J. Whalen went to 5 Grant Street where he found a
white blazer, New York Reg. E6J964, parked in the rear. A check with the New York Registry of Motor
Vehicle indicates that this vehicle is [registered] to Jose A.
Rodriquez.... A further check with NCIC indicates [423
Mass. 570] that Jose A. Rodriquez
has a Criminal record in the State of New York for Carrying a loaded weapon, impersonating a Police Officer, and
assault to cause physical harm.
"Myself
and Sgt. Dinapoli have personal knowledge of the
above listed motor vehicle having received information in the past concerning
the operator of that motor vehicle being involved at 289 Walnut Street in a
large scale Crack Cocaine and Cocaine operation. We also had information from a member of the
Dominican‑Hispanic community that this motor vehicle made numerous trips
to New York to pick up large quanities [sic ] of Cocaine to be [delivered] in
[the] Holyoke area for sale.
"A
check with Official City of Holyoke records the renter of 5 Grant Street,
second floor is Ovidio Blanco Reyes. I have personal knowledge that Ovidio Blanco Reyes is from the Dominican Republic and is a
resident alien. I also have received
information in the past that Ovidio Blanco Reyes is a
large distributor of Cocaine and Crack Cocaine.
I have conducted an investigation into the distribution of Cocaine in
the 650 South East Area this year and observed drug sales being made and the
money passed to Ovidio Blanco Reyes and Daniel Garcia
in a late model Caprice Classic which was [registered] to Ovidio
Blanco Reyes. At the time of this arrest
Mr. Reyes stated that he lived at 289 Walnut Street. Subsequent to this arrest information was
developed from a participant that Mr. Reyes was a large scale Cocaine
distributor, and that he used several different apartments in the City to move
the Cocaine around to a safe house location.
"On 8‑16‑91
Sgt. Dinapoli arrested a Dominican male, Diego Mejia
of no known address, with 80 vials of Crack Cocaine in his possession. Sgt. Dinapoli
developed information that Mr. Mejia was involved in the distribution of the
Crack Cocaine with Jose Rodriquez who he knew operated the White Blazer, New
York Registration E6J964. Subsequent to
this arrest I was in the Holyoke Police Department when Mr. Reyes came in to
try and secure the release of the motor vehicle Mr. Mejia was operating at the
time of his arrest for the Crack Cocaine.
"Based
on information received from the Cooperating Member of the Community, my
personal knowledge of Ovidio Blanco Reyes,
information received by St. Dinapoli concerning the
White Blazer and the arrest of Mr. Mejia, information [423 Mass. 571] that
Mr. Reyes does live at 5 Grant Street, second floor, arrest of Ovidio Blanco Reyes, I believe that there is a large quanity [sic ] of
Cocaine being kept for distribution at 5 Grant Street, second floor."
[2] The
standards by which probable cause for a search warrant based on information
provided by a confidential informant is measured are well established in this
Commonwealth. In Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985),
we rejected the more lenient "totality of the circumstances" test
announced in Illinois v. Gates, 462
U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and
ruled that art. 14 requires adherence to the principles set out in 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). Under the
Aguilar‑ Spinelli standard, a 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)." Commonwealth v. Upton, supra
at 375, 476 N.E.2d 548, quoting Aguilar
v. Texas, supra at 114, 84 S.Ct. at 1514. Each of the two prongs of the test must be
separately considered and satisfied, but independent police corroboration can
rectify deficiencies in either or both prongs. Id. at 375‑376, 476
N.E.2d 548.
[3] The
Appeals Court concluded that, although the basis of the informant's knowledge
was shown by his personal observation of the cocaine in the apartment, the
affidavit failed to articulate the circumstances underlying the affiant's
belief in the informant's veracity. Commonwealth v. Reyes, 38 Mass.App.Ct. 483, 485, 487, 649 N.E.2d 166 (1995). The only indication that the informant had
personal knowledge of criminal activity at 5 Grant Street is found in his
statements that the men in the white automobile brought cocaine "which the
CI had seen in the 5 Grant Street, second floor apartment,"
and that the white automobile would be leaving that day. The informant provided no names or
descriptions of the individuals involved, no indication that he had witnessed
one or a series of sales transactions, and few details of the reported drug
operation. See Commonwealth v. Desper, 419 Mass. 163,
164, 643 N.E.2d 1008 (1994) (informant present on numerous occasions in past
month, named and described defendants, and described details of cocaine sales);
Commonwealth v. Spano, 414 Mass. 178, 182‑183,
605 N.E.2d 1241 (1993)[423 Mass. 572]
(informant familiar with manner of cocaine sales gave extensive details
of reported operation). The tip was
devoid of details that would normally support a belief that the informant had
actually been inside the apartment and obtained personal knowledge of illegal
activities. We need not decide, however,
whether the informant's assertion of personal knowledge, coupled with minimal
additional detail, meets the "basis of knowledge" test, because the
affidavit fatally failed to show the veracity of the informant's information.
The
informant's reliability was not proven by the prior provision of information leading
to convictions or seizures of evidence, or otherwise proven accurate. See
Commonwealth v. Mejia, 411 Mass. 108, 112‑113, 579 N.E.2d 156 (1991);
Commonwealth v. Perez‑Baez, 410 Mass. 43, 46, 570 N.E.2d 1026
(1991);
Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255
(1988). The tip itself was not so
detailed as to ensure the requisite reliability. See
Commonwealth v. Parapar, 404 Mass. 319, 323, 534
N.E.2d 1167 (1989). Neither was the
police investigation sufficient to corroborate the informant's
information. "Information received
in the past" and attributed to various unspecified members of the
community, to the effect that the defendant was a large‑scale cocaine
distributor and that the automobile parked outside the defendant's address was
often used to transport cocaine from New York, was not shown to be recent
enough to avoid being stale and did not "provide the sort of idiosyncratic
detail that would effectively corroborate and lend credibility to the
informant's assertions." Commonwealth v. Desper,
supra at 167, 643 N.E.2d 1008. See Commonwealth v. Nowells,
390 Mass. 621, 627, 458 N.E.2d 1186 (1983) (separate confidential informants'
tips may corroborate each other if sufficiently detailed and independently
reliable).
Further,
the police conducted no surveillance of activities at the defendant's address
other than to verify the location of the automobile, and engaged in no
controlled buy of narcotics from the defendant or anyone at the location, see Commonwealth v. Desper,
supra at 165, 167, 643 N.E.2d 1008; Commonwealth v. Warren, 418 Mass. 86, 89,
635 N.E.2d 240 (1994); Commonwealth v. Spano,
supra at 185‑186, 605 N.E.2d 1241; Commonwealth v. Carrasco, 405 Mass. 316,
322, 540 N.E.2d 173 (1989); Commonwealth v. Parapar,
supra at 323, 534 N.E.2d 1167.
Although
the affidavit intimated that the defendant had been arrested previously,
presumably for a drug offense, the magistrate was told no details about the
purported arrest, including when it occurred, whether charges were brought, [423 Mass. 573] whether contraband was seized, or the ultimate disposition of the
arrest. See Commonwealth v. Desper, supra at 167,
643 N.E.2d 1008 (convictions of "uncertain vintage" given no weight
in probable cause determination); Commonwealth v. Spano,
supra at 185, 605 N.E.2d 1241 (recent history of similar crimes may be
considered in determining probable cause).
There is absolutely no evidence in the record before us to suggest, as
does the dissent, that the police were merely waiting for an opportunity to
arrest the defendant, which conveniently arose with the unidentified
confidential informant's tip. The judge
did not so much as allude to such a state of events. The defendant's motion was denied without
memorandum of decision. Not only do we
lack the power of clairvoyance, but it is wholly inappropriate to speculate on
a bare record as to what the judge may or may not have concluded about what the
police officers may or may not have speculated when seeking a search warrant.
Finally,
only minimal weight in a probable cause determination can be placed on the
affiant's knowledge that the defendant attempted to retrieve Mejia's automobile
from
the police after Mejia's drug‑related arrest. Neither Mejia's arrest (outcome uncertain)
nor the defendant's attempt to retrieve the vehicle suggest the defendant was
involved in illegal drug‑related activity. In short, the independent investigation
revealed no "predictive details that were not easily obtainable by an
uninformed bystander." Commonwealth v. Desper,
supra at 167‑168, 643 N.E.2d 1008, quoting Commonwealth v. Lyons, 409 Mass. 16, 21, 564 N.E.2d 390
(1990). A commonsense view of the
affidavit as a whole, see Commonwealth v.
Warren, 418 Mass. 86, 90, 635 N.E.2d 240 (1994), fails to establish the
veracity of the informant's knowledge, and probable cause did not exist for the
warrant's issuance.
Finally,
it appears clear on this record that the statement made by the defendant to the
police must be suppressed as the "fruit of the poisonous tree." The rationale behind the conclusion is amply
stated in the well‑reasoned opinion of the Appeals Court and need not be
repeated here. The defendant's motion to
suppress evidence should have been granted.
The conviction is reversed.
So ordered.
GREANEY, Justice (dissenting, with whom LYNCH and FRIED, JJ., join).
There has
been a failure to apply certain fundamental
[423 Mass. 574] principles to
the examination of the affidavit. These
principles are as follows. A warrant
issues on a showing of probable cause, a much less rigorous requirement than
that posed by proof beyond a reasonable doubt.
Accordingly, "a certain leeway or leniency [is always granted] in
the after‑the‑fact review of the sufficiency of applications for
warrants," Commonwealth v. Corradino, 368 Mass. 411, 416, 332 N.E.2d 907 (1975),
and that review necessarily must take into account the substantial role of
reasonable inferences and common knowledge in deciding whether an assertion has
been shown to a probability. Commonwealth v. Alessio,
377 Mass. 76, 82, 384 N.E.2d 638 (1979).
Courts, therefore, "should not invalidate the warrant by
interpreting the affidavit in a hypertechnical,
rather than a commonsense manner....
[T]he resolution of doubtful or marginal cases in this area should be
largely determined by the preference to be accorded to warrants."
United States v. Ventresca, 380 U.S. 102,
109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Critically, "[t]he sufficiency of the
affidavit is to be decided on the basis of a consideration of all its
allegations as a whole, and not by first dissecting it and then subjecting each
resulting fragment to a hypertechnical test of its
sufficiency standing alone." Commonwealth v. Stewart, 358 Mass. 747,
751, 267 N.E.2d 213 (1971).
This affidavit,
considered as a whole, and with fairness, is sufficient. The informant's basis of knowledge is clearly
satisfied by observation of two to three kilograms of cocaine in the
defendant's apartment which would be subject to sale at a price estimated
between $300,000 and $400,000.
The
remaining issue is a simple one‑‑does the affidavit disclose a
reasonable basis to support the reliability of the informant's report? The police verified that the defendant
rented the apartment where the cocaine had been seen, and the police knew from
personal observations that the defendant dealt drugs from his late model
Caprice classic automobile with another identified Hispanic man. The white Blazer, which was to make the substantial
delivery of cocaine to the defendant, was seen exactly where it was said to be,
in the back of the apartment building where the defendant lived; the New York registration plate number
matched that of the Blazer; and the
Blazer was registered to a known Hispanic male (Jose R. Rodriquez), who (based
on a police check of his criminal records) likely carried a loaded handgun, a
protection usually considered prudent by any large scale [423 Mass. 575] cocaine
dealer. The defendant was also linked to
a third cocaine dealer (Diego Mejia) who had engaged in cocaine distribution
with Rodriquez. The independent
information and corroboration gathered by the police thoroughly supported the
informant, and provided sufficient indication of the defendant's involvement
with cocaine distribution so that the magistrate issuing the warrant reasonably
could conclude "that he [was] relying on something more substantial than 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).
Considered
on a commonsense basis, this would appear a situation in which the police had
probable cause to believe that the defendant was dealing in large amounts of
unlawful drugs, on a regular basis, based on the police officers' own
observations and the reasonable inferences that could be drawn from the
defendant's association with others involved in the illicit drug trade. A reasonable person could conclude that the
police may well have been waiting to arrest the defendant (again), until such
time as they had cause to believe that he was in possession of a considerable
quantity of cocaine (brought in from New York) commensurate with the scope of
the defendant's activities. The informant's
tip merely established the time at which such an arrest and the accompanying
search should occur.
The
experienced Superior Court judge appears to have so concluded, and I would
affirm his denial of the motion to suppress.
This result is consistent with what the court stated in Commonwealth v. Upton, 394 Mass. 363,
374, 476 N.E.2d 548 (1985): "We
conclude ... that the principles [of
Aguilar‑ Spinelli ], if not applied hypertechnically, provide a more appropriate structure for
probable cause inquiries under art. 14."
The search of the apartment uncovered a treasure trove of cocaine,
money, and drug distribution equipment which, to list and identify item by
item, would add pages to this separate opinion.
(FN1) The defendant validly
confessed to his ownership of [423
Mass. 576] the cocaine and to his
role as a cocaine distributor. I would
affirm the judgment convicting the defendant of trafficking in large quantities
of cocaine.
(FN1.) Seized from the apartment were cocaine,
cash, drug paraphernalia, and personal papers belonging to the defendant. The motion to suppress evidence additionally
sought suppression of a statement made to police at the police station after
the defendant's arrest. Contrary to the
assertion in the dissent, the police inventory of property seized constituted
just one page. Of course, it matters not
what police actually seize during a search, see, e.g., Commonwealth v. Straw, 422 Mass. 756, 758, 665 N.E.2d 80 (1996)
(evidence of over 200 grams of cocaine, $1,750 in cash, paraphernalia, and
personal effects suppressed where briefcase illegally searched), when
determining the legality of the search itself.
Although the dissent relies on an identified Hispanic male's (Rodriquez)
past New York conviction for carrying a loaded weapon to support an inference
that Rodriquez is a "large scale cocaine dealer," it must be noted
that no weapons were found in the apartment.
Further, carrying a firearm is not a crime in this Commonwealth. See G.L. c. 269, §
10(a ) (1994 ed.) (carrying a firearm without a license to do
so is a crime); Commonwealth v. Alvarado, 423 Mass. 266,
269, 667 N.E.2d 856 (1996) (report of carrying a firearm, absent more, does not
establish reasonable suspicion of criminal activity).
(FN1.)
The illegal substances and other paraphernalia and items taken during the
search are generically described in the one‑page‑return filed after
the search. The Commonwealth's brief
spends eight and one‑half pages particularly describing the magnitude of
the items devoted to the drug enterprise.