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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. Rojas, 403
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
David A. Grossbaum, Asst.
Dist. Atty. (Judith Fabricant, Sp. Asst.
Dist. Atty., with him) for Com.
Michael P. Hickey,
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.
LIACOS, Justice.
The
Commonwealth, pursuant to Mass.R.Crim.P. 15(b), as
amended, 397
We
summarize the affidavit in support of the search warrant. On
The
informant reported that the defendant, Marcos A. Rojas, deals large quantities
of cocaine from his first‑floor apartment at
On March
17, 1986, the informant told the affiant that, while within Rojas' apartment
within the previous twenty‑four hours, he had seen Rojas with several
plastic bags of cocaine, had observed him using his pager, and had watched him leave
the apartment to deliver the cocaine. At
this time, according to the informant, Rojas was in possession of a .357 Magnum
pistol.
On March
13, 1986, the affiant spoke with a "concerned citizen" (citizen), who
wished to remain anonymous out of a [403
Mass. 485] fear for safety. (FN2)
The citizen stated that Rojas was distributing cocaine from his first‑floor
apartment using a page‑call system, and that Rojas was in constant
possession of a handgun. (FN3) The citizen stated that she, or he, personally
observed plastic bags containing cocaine in the apartment.
On the
basis of this affidavit, a clerk of the Lynn District Court issued a warrant on
March 18, 1986, to search 27 North Federal Street, Lynn. Officer Dern
executed the search on the same day and seized, among other things: "[o]ne plastic
bag with white (brick) substance," "[o]ne
tinfoil wrap with white powder," "[o]ne Ohaus Triple Beam Scale with powder residue,"
"[o]ne .357 Magnum pistol," and "[o]ne Omni Page Beeper."
Subsequently,
the defendant was indicted by a grand jury for trafficking in cocaine and for
the unlawful possession of a firearm.
Prior to trial, the motion judge ordered the suppression of the evidence
on the ground that the affidavit failed to establish probable cause.
Under art.
14 of the Massachusetts Declaration of Rights, a magistrate, before issuing a
search warrant, must determine that probable cause exists. Commonwealth v. Upton, supra. "In
Upton, we held that, under art. 14 ... the test for determining probable
cause in cases involving unnamed informants incorporates the principles
developed under Spinelli
v. United States, 393 U.S. 410 [89 S.Ct. 584, 21
L.Ed.2d 637] (1969), and Aguilar v.
Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d
723] (1964)" (footnote omitted). Commonwealth v. Saleh,
396 Mass. 406, 409, 486 N.E.2d 706 (1985).
"Under the Aguilar‑ Spinelli standard, 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 [403 Mass. 486] 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). Aguilar v. Texas, supra [378 U.S.] at 114
[84 S.Ct. at 1514].
If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the
affidavit that corroborate the information could support a finding of probable
cause.
Spinelli v. United States, supra [393
U.S.] at 415 [89 S.Ct. at 588].' "
Commonwealth v. Upton, supra 394 Mass. at 374‑375, 476 N.E.2d
548.
[1][2] We
agree with the motion judge that the information in the affidavit regarding the
past performance of the informant was not sufficient to satisfy the
"veracity prong" of the Aguilar‑
Spinelli test.
(FN4) The only reference to this
informant's veracity was the statement that he previously had provided
information which led to the March, 1986, arrest of Peters. 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.
The magistrate must be furnished with more detail regarding the
circumstances of the prior arrest in order to make a meaningful determination
of the informant's veracity. The
affidavit does not make clear what role the informant played in obtaining the
arrest. Nor does it indicate whether any
information previously provided to the police by him
had been proven correct. See Commonwealth v. Malone, 24 Mass.App.Ct. 70, 72, 506 N.E.2d 163 (1987) (outlining
aspects of reliability required and analyzing cases on point). See also 1 W. LaFave,
Search and Seizure § 3.3(b) (2d ed. 1987);
Moylan, Hearsay and Probable Cause:
An Aguilar and Spinelli
Primer, 25 Mercer L.Rev. 741, 758‑761 (1974).
The
Commonwealth mistakenly argues that
Commonwealth v. Valdez, 402 Mass. 65, 521 N.E.2d 381 (1988), compels this
court to find that the informant was reliable in this case. In
Valdez, the affidavit at issue recited that the informant recently had
provided "information to the police which led to a 'cocaine arrest' on an [403 Mass. 487] outstanding 1985 warrant." Id. at 70, 521 N.E.2d
381. The affidavit in that case
satisfied the veracity prong because the informant had been proven correct in
his revelation of a particular fact, namely, the whereabouts of the arrestee. The court in Valdez did not hold that the fact that an informant gave
information leading to a prior arrest was sufficient to establish the veracity
of the informant. A careful reading of Valdez reveals that the information
provided by the informant was the basis of probable cause for the issuance of
the outstanding arrest warrant. This
explains the court's comment that "[i]t is
fairly inferable ... that the informant provided information as to the
arrestee's whereabouts, rather than information helpful to an investigation of
crime." Id. at 70‑71, 521 N.E.2d 381. Additionally, the court relied, in part, on
"police surveillance [which] lent credence to the informant and his
statements." Id. at 71, 521 N.E.2d 381. (FN5)
[3][4] We
disagree with the Commonwealth's assertion that the information contained in
the affidavit was sufficiently detailed to be self‑verifying. Cf. Commonwealth v. Atchue,
393 Mass. 343, 348, 471 N.E.2d 91 (1984).
For an informant's tip to be considered reliable, despite failing to
satisfy the requirements of the veracity prong, it must contain a high degree
of specificity. In this case, the
informant did not provide particularized distinguishing characteristics of the
defendant's apartment, possessions, or activities. We note that, in recent cases endorsing the
notion of the self‑verifying tip, other indicia of reliability were
present to support a finding of veracity.
See Commonwealth v. Germain, 396 Mass. 413, 418, 486 N.E.2d 693 (1985)
(police investigation corroborated informant's tip); (FN6) Commonwealth v. Atchue, supra (fact informant was identified carried
indicia of reliability).
[403 Mass. 488] [5][6] The information given by the citizen also fails to satisfy
the veracity prong of the Aguilar‑ Spinelli test.
The affidavit contains virtually no information regarding the citizen's
veracity. While "concerned
citizens" who report information to the police out of civic duty
ordinarily are not subject to the same degree of skepticism as informants, Commonwealth v. Burt, 393 Mass. 703,
710, 473 N.E.2d 683 (1985), the magistrate should be given at least the name of
the citizen before granting credence to the information. Id. Commonwealth v. Atchue, supra 393 Mass. at 347‑348, 471 N.E.2d
91.
[7][8] The
Commonwealth argues that the tips given by the informant and the citizen
provided mutual corroboration. We
disagree. While tips which alone may not
satisfy the veracity test nevertheless may establish reliability through cumulative
reinforcement, Commonwealth v. Nowells, 390 Mass. 621, 624, 458 N.E.2d 1186 (1983),
they will be held to a high standard before being considered reliable. In order for independent, unnamed informants'
statements to corroborate each other, they must correspond in
"significant, detailed respects." Id. at 627, 458 N.E.2d 1186. The information provided by the informant
and by the citizen was not sufficiently detailed to satisfy this requirement.
The order
allowing the motion to suppress is affirmed.
So ordered.
(FN1.) A single justice of this court granted
the Commonwealth's application and referred the appeal to the Appeals
Court. This court took the case on its
own motion for direct review.
(FN2.)
Since the identity of this "concerned citizen" was not revealed, he
(or she) takes the status of an anonymous informant and, thus, does not obtain
the enhanced status of credibility given an identified citizen or victim. See
Commonwealth v. Atchue, 393 Mass. 343, 347‑348,
471 N.E.2d 91 (1984). For purposes of
clarity, however, we shall refer to this informant as "citizen."
(FN3.)
We note that possession of a handgun is not per se illegal. See
Commonwealth v. Nowells, 390 Mass. 621, 627, 458
N.E.2d 1186 (1983). There was no
information given the magistrate as to whether the defendant was licensed to
carry a handgun.
(FN4.)
The informants' assertions that they personally observed the objects and
activity in the apartment appear to be sufficient to satisfy the "basis of
knowledge" prong of the Aguilar‑
Spinelli test.
See Commonwealth v. Valdez,
402 Mass. 65, 70, 521 N.E.2d 381 (1988).
(FN5.)
The other cases relating to previous arrests cited by the Commonwealth are also
distinguishable from the case at bar in that independent police investigation
supported the informants' tips. See Commonwealth v. Saleh,
supra 396 Mass. at 411, 486 N.E.2d 706; Commonwealth v. Pellier,
362 Mass. 621, 625, 289 N.E.2d 892 (1972); Commonwealth v. Kiley,
11 Mass.App.Ct. 939, 939‑940, 416 N.E.2d 980
(1981);
Commonwealth v. Flaherty, 6 Mass.App.Ct.
876, 877, 375 N.E.2d 353 (1978).
(FN6.)
It is instructive to compare the assertions in the present affidavit with those
in the affidavit in Commonwealth v. Germain, 396 Mass. 413, 486 N.E.2d 693 (1985). In that case, the affidavit reported that the
defendant's gun, observed by the victim during an armed robbery, was
identically described by the informant as gray with numerous rust spots on the
barrel. Other detailed statements of the
informant were corroborated by police investigation. Id. at 418, 486 N.E.2d 693.