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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. Saleh, 396
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
William T. Walsh, Asst. Dist. Atty., for
Commonwealth.
George M. Nassar,
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
ABRAMS, Justice.
Pursuant
to Mass.R.Crim.P. 15(b)(2), (FN1) the Commonwealth
appeals from an order granting the defendant's [396
The search
warrant was issued on the basis of two affidavits. The first affidavit was submitted by an
officer of the
"At
about
"On
the basis of the foregoing information, ... I have probable cause to believe
that [there] is a quantity of narcotics in the apartment, other [than] what I
have already found and seized, therefore on the basis of the foregoing
information, I believe that I have probable cause to search Apt. 2404 located
at 10 Chestnut St., for illegal drugs and paraphernalia which I believe to be
located there. (Hashish, cocaine and
monies and bankbooks)".
The record
reveals that the officer originally submitted only his own affidavit. Commendably, the magistrate refused to issue
the warrant because the affidavit was insufficient to support a finding of
probable cause. The officer then called
an agent from the Federal Drug Enforcement Agency (DEA),
who prepared a second affidavit.
(FN2) The DEA
agent's affidavit stated in part:
"I have a reliable informant known as CI‑1, who has
negotiated with Ali Saleh for purchases of drugs in
excess of $4000 [within] the last week.
CI‑1 states that he believes that Ali Saleh
... stores the drugs he was going to buy at Saleh's
apartment, 2404, in the
[396 Mass. 409] The defendant filed a motion to suppress the evidence seized
pursuant to the search warrant, alleging no probable cause. (FN4)
In ruling on the motion, the judge applied the traditional "two‑pronged
test" of 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). The judge assumed that the
second affidavit established the reliability of the two informants, thus
satisfying the first or "reliability" prong of the Aguilar‑Spinelli
test. He also found, however, that the
affidavit failed the second, or "basis of knowledge" part of the test
because it did not show how the informants obtained the information that the
defendant stored drugs in the apartment. The judge further found that the discovery of
a package of hashish was insufficient to establish probable cause for the
issuance of the search warrant. The
judge therefore granted the motion to suppress.
The Commonwealth appealed, and the single justice reported the case to
the full bench.
[1] We
have recently reviewed the general rules governing search warrants. See
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). In
Upton, we held that, under art. 14 of the Massachusetts Declaration of Rights,
(FN5) 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). Thus, to establish probable
cause, an affidavit based on information from an unnamed informant must provide
the [396 Mass. 410] 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, independent corroboration 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 theAguilar‑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.
We turn
now to the two affidavits and consider them together. See
Commonwealth v. Daly, 358 Mass. 818, 266 N.E.2d 870 (1971);
United States v. Dudek, 560 F.2d 1288,
1293 (6th Cir.1977), cert. denied, 434 U.S. 1037, 98 S.Ct.
774, 54 L.Ed.2d 786 (1978). Each
affidavit contributes to the total picture from which the magistrate determines
probable cause. Commonwealth v. Kaufman, 381 Mass. 301,
303, 408 N.E.2d 871 (1980). The DEA agent's affidavit reports a tip from an informant
designated "CI‑1" who "has been working for me for over
six months as a cooperating individual and is responsible for three arrests and
federal indictments at the present time [and his] information has been true and
accurate in the past." This record
of prior police cooperation is sufficient to establish the reliability of
informant "CI‑1." (FN6)
Commonwealth v. Hall, 366 Mass. 790, 797, 323 N.E.2d 319 (1975).
[396 Mass. 411] The informant reportedly stated that he had negotiated with the
defendant within the past week for purchases of drugs in excess of $4,000 and
that he believed that the defendant was storing at his apartment the drugs the
informant was going to buy. This
information is sufficient to support an inference that, at the time of the
issuance of the warrant, the defendant was distributing drugs. There is nothing in the affidavit from which
the magistrate could determine that the items sought may reasonably be expected
to be located in the place to be searched. Commonwealth v. Cefalo,
381 Mass. 319, 328, 409 N.E.2d 719 (1980), and cases cited. Thus, the informant's tip does not indicate
the basis of knowledge for his belief that the defendant stored drugs in his
apartment and, standing alone, is insufficient to establish probable cause to
search the defendant's apartment under the
Aguilar‑Spinelli standards. However, that information is not standing
alone in this case. Prior to the receipt
by the Springfield police of the tip, the police found hashish at the
defendant's apartment. In these
circumstances, the issue is not really whether the informant's tip is sufficiently
corroborated, but rather whether the independent police observation of criminal
activity bridges the gap between the
Aguilar‑defective informant's tip and a finding of probable
cause. See State v. Gomez, 101 Idaho 802, 807, 623 P.2d 110 (1980), cert.
denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378
(1981), citing 1 W. LaFave, Search and Seizure §
3.3(e), at 566‑567 (1978). See
also United States v. McNally, 473
F.2d 934, 939‑940 (3d Cir.1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974). We believe that it does. "[T]he tip, even though not qualifying
under Aguilar, may be used to give
such additional color as is needed to elevate the information acquired by
police observation above the floor required for probable cause." United States v. Canieso,
470 F.2d 1224, 1231 (2d Cir.1972).
[2] The
affidavits read as a whole provide sufficient facts to justify the search
warrant. The informant's tip and the
police discovery each provided an element the other lacked to establish probable
cause: the tip established probable
cause to believe that the defendant was currently engaged with CI‑1 in
the criminal activity of drug distribution and the police discovery provided
probable cause to believe that evidence of that crime [396 Mass. 412] would
be found in the defendant's apartment.
See Commonwealth v. Cefalo, supra; United States v. Melvin, 596 F.2d 492,
496 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct.
73, 62 L.Ed.2d 48 (1979). Thus, the
magistrate had before him information from two reliable sources: an informant of proven reliability and police
officers. See United States v. Ventresca, 380 U.S.
102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684
(1965). That information indicated that
the defendant was currently selling drugs and that there were some drugs in the
defendant's apartment. From those two
circumstances, the magistrate reasonably could infer that the defendant had
drugs in his apartment other than the drugs already found. See
Commonwealth v. Vynorius, 369 Mass. 17, 23, 25,
336 N.E.2d 898 (1975); Commonwealth v. Stewart, 358 Mass. 747,
752, 296 N.E.2d 213 (1971).
Examining
the entire application as a whole,
Commonwealth v. Stewart, supra at 751, 296 N.E.2d 213, and applying a
commonsense, nontechnical approach, United States v. Ventresca,
380 U.S. 102, 108‑109, 85 S.Ct. 741, 745‑46,
13 L.Ed.2d 684 (1965), we conclude that the two affidavits furnish probable
cause to search the apartment. The order
granting the motion to suppress is reversed and the matter is remanded to the
Superior Court for trial.
So ordered.
(FN1.) Massachusetts Rule of Criminal
Procedure 15(b)(2), 378 Mass. 884 (1979), reads in pertinent part as
follows: "A defendant or the
Commonwealth shall have the right and opportunity to apply to a single justice
of the Supreme Judicial Court for leave to appeal a decision, order, or
judgment determining a motion to suppress evidence prior to trial. If the single justice determines that the
administration of justice would be facilitated, he may grant that leave and ...
may report it to the full Supreme Judicial Court or to the Appeals
Court." A single justice of this
court reserved and reported this matter.
(FN2.)
This signed statement was attached to and incorporated by express reference
into the police affidavit. We refer to
it as the second affidavit.
(FN3.)
Only these five drug indictments are before us on this appeal.
(FN4.)
The defendant also filed a motion to suppress the evidence found during the
course of his arrest, prior to the issuance of the search warrant. The record does not disclose any attempt by
the defendant to seek interlocutory relief from the denial of his motion to
suppress the drugs found during this original entry into his home. See Mass.R.Crim.P.
15(b)(2). That issue therefore is not
before us.
(FN5.)
Article 14 provides: "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."
(FN6.)
The DEA agent's affidavit also reported a tip from a
second informant designated "CI‑2." The affidavit stated that the informant
"has provided reliable information in the past that Ali Saleh deals hashish and cocaine out of Apt. 2404 in the
Chestnut Towers, Springfield."
This tip meets neither prong of the
Aguilar‑Spinelli test. The affidavit discloses no circumstances from
which a magistrate could infer that the informant has provided reliable
information in the past. Commonwealth v. Kaufman, supra 381 Mass.
at 302, 408 N.E.2d 871. Nor does the affidavit
indicate the basis for the informant's belief that the defendant was dealing in
drugs out of his apartment. This
informant's tip provides no indication that his information is "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, supra 393 U.S. at 416, 89 S.Ct. at 589. Commonwealth v. Stevens, 362 Mass. 24,
28, 283 N.E.2d 673 (1972). We therefore
disregard this portion of the second affidavit in determining whether there was
probable cause to issue the warrant.