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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. Shea, 28 Mass.App.Ct.
28 (1989)
Appeals Court of Massachusetts,
No. 89‑P‑256.
Argued
Decided
Further
Appellate Review Denied
Daniel Patrick Leonard, for defendant.
[28 Mass.App.Ct.
29] Linda M. Fleming, Asst. Dist.
Atty., for Com.
Before [28
Mass.App.Ct. 28]
DREBEN, KAPLAN and FINE, JJ.
KAPLAN, Justice.
In this
drug case, two warrants issued for search of premises occupied by the defendant
Shea, one for his business offices at 45 Court
Street,
Upon the
present appeal, the defendant attacks the negative ruling on the pretrial
motion to suppress and also claims that there were errors at trial.
1. Motion to suppress. (a)
Sufficiency of affidavit supporting the warrants. Officer
William E. Curtis of the Plymouth police, the affiant, describes his
considerable experience in various investigations and prosecutions. In mid‑December, 1985, he talked with
an unnamed "reliable informant" who had furnished information that
had "led to convictions in the past in Plymouth District Court." The informant said he (FN2) had been told
that the defendant was selling cocaine from his residence on Rocky Hill Road
and from his "tanning salon" on Court Street; also he (the informant) had seen cocaine [28 Mass.App.Ct.
30] several times in the last few
months in the possession of "different subjects" who claimed to have
purchased it from Shea either at his house or place
of business. About January 24, 1986,
Curtis had a further conversation with this informant. He said he had been present at Shea's business on at least two occasions in the last
month: he saw Shea
sell cocaine in his office in the tanning salon and again from a locked desk
drawer in the downstairs office of "Corinthian Pools," also owned by Shea and located at the same address. Curtis added that since mid‑January,
1986, he had conducted a "loose surveillance" of the tanning salon
and had observed three subjects entering and leaving the building whom he
believed to be involved in the use of narcotics, and who were being actively
investigated by the police department.
About
February 2, 1986, Sergeant Pomeroy of the Plymouth police told Curtis he had
just spoken with a "reliable informant whose information has led to
convictions in court in the past" (a second informant) and that person
told him that he had been present at Shea's residence
within the past three days and observed cocaine being sold there.
Concluding
the affidavit, Curtis states that about February 4, 1986, he talked with the
first informant who said he (FN3) had just spoken with Shea,
and Shea said he would be picking up a quantity of
cocaine later in the week and would have a supply on hand for the coming
weekend.
The
warrants issued on February 5, 1986, a Wednesday, and were executed on
Saturday, February 8.
[1] We
examine the affidavit under the regime of
Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985) (Upton II ), which carries forward the
familiar principles of 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). Each informant
reports his direct observations of sales of cocaine by the defendant, observations
by the first informant at the place of business, and by the second at the
residence. In addition, the first
informant hears direct from the defendant his plans for procuring cocaine. This is adequate[28 Mass.App.Ct. 31] to satisfy for each informant
the "basis of knowledge" requirement of the cited authorities. And see
Commonwealth v. Valdez, 402 Mass. 65, 70, 521 N.E.2d 381 (1988);
Commonwealth v. Carrasco, 405 Mass. 316, 321, 540 N.E.2d 173 (1989).
[2] As to
the "veracity" requirement, there are averments regarding the
informants that they have supplied information which has led to past
convictions. (FN4) In
Commonwealth v. Malone, 24 Mass.App.Ct. 70, 72,
506 N.E.2d 163 (1987), the question was raised, but not answered, whether
veracity would be established by a statement in the affidavit offered to a
magistrate that an unnamed informant had furnished information leading to an
arrest. It has lately been held that
that does not suffice. See Commonwealth v. Rojas, 403 Mass. 483,
486, 531 N.E.2d 255 (1988). An arrest
may turn out to be a dud, not resulting in a conviction, which would suggest
that the underlying representation was awry and not a proof of the
trustworthiness of the informant who made it.
(FN5) An inference of
trustworthiness of an informant is strengthened where the information he
furnished has led, as here, to actual convictions; (FN6) specificity about the
convictions, which would trench more or less on the informant's anonymity, is
not demanded. It appears from decisions
around the date of Rojas and
afterward that there is no disposition to equate convictions with arrests and
that "information leading to convictions" can satisfy the veracity
element. See Commonwealth v. Robinson, 403 Mass. 163, 165, 526 N.E.2d 778 (1988);
Commonwealth v. Santana, 403 Mass. 167, 170, 526 N.E.2d 1051 (1988);
Commonwealth v. Brzezinski, 405 Mass. 401,
403 n. 2, 406, 540 N.E.2d 1325 (1989).
Cf. Commonwealth v. Bottari, 395 Mass.
[28 Mass.App.Ct. 32] 777, 783, 482 N.E.2d 321 (1985).
Many decisions elsewhere support this position. See 1 LaFave,
Search and Seizure § 3.3(b), esp. at 628‑629 (2d ed. 1987). (FN7)
The
defendant has gone on to attack both warrants as overbroad or indefinite, and
executed unlawfully in the nighttime, but these contentions fail, as does the
claim that the warrants were "stale" (in that connection, note
especially the February 4 conversation).
[3] (b) Neutrality of the magistrate. The defendant argues that, even if the
affidavit established probable cause, the warrants were invalidated because the
magistrate who issued them must be taken to have been fatally biased or lacking
impartiality.
John A.
Sullivan, an assistant clerk‑magistrate, had issued the warrants on
February 5. He was available after his
regular working hours on February 8 to act on bail applications, and when the
defendant, under arrest, was brought into the police station that evening, he
released him on personal recognizance.
Sullivan was paid no separate fee for issuing the warrants; that function fell within his usual duties as
assistant clerk, for which he received a stated annual salary of $34,000. For setting bail after hours he receives $15
in accordance with G.L. c. 262, § 24. (FN8)
By arrangement, Sullivan and a colleague act on bail on alternate
days. Sullivan figured he received
$12,000‑$15,000 in § 24 fees in the course of a year.
The
defendant charges Sullivan with a disqualifying conflict of interest because,
in issuing a warrant, he creates a possibility of receiving $15 for bail
duty. But his neutrality is [28 Mass.App.Ct.
33] hardly compromised in the sense
of Connally v.
Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d
444 (1977). For various contingencies
are involved, among them, whether anyone will be arrested as a consequence of
the execution of the warrant, whether an arrested person will claim bail before
a judge rather than a bail commissioner, whether the arrestee will apply on a
date when Sullivan is scheduled. So it is
not reasonable to see the prospect of a fee as conditioning or influencing his
action. Of course, there is no claim
that Sullivan in fact acted in issuing these warrants with any attention to the
possibility of a fee.
[4] 2. Trial:
contents of the nine bags.
The defendant makes what he has called a "technical" argument
that the Commonwealth failed in the proof needed to establish that a sufficient
number of the bags contained cocaine to aggregate a weight of the total
contents of those bags in excess of 28 grams.
(FN9) The respective positions of
the defendant and the Commonwealth (each advanced with the help of an expert)
may be summarized thus. Defendant: Only by "infrared" spectroscopy
could it be proved that a sample contained cocaine. "Ultraviolet" spectroscopy would
show only the concentration of a given compound in a sample. Samples from only five bags were subjected to
infrared examination, all with positive results. Commonwealth: Where numerous suspected bags or other units
are received for official analysis, all with substances evidently alike‑‑as
to color, consistency, packaging, smell, etc.‑‑it is not necessary,
and would be superfluous, to subject each bag to the infrared and ultraviolet
tests. It is enough to make
representative tests, here five infrareds and four ultraviolets; and this has been the practice. It was on this basis that the State police
laboratory issued a certificate covering the nine bags; and, under the statute, G.L.
c. 111, § 13, the certified statement about the contents must be accepted as
prima facie evidence running through the case.
See Commonwealth v. Harvard,
356 Mass. 452, 462‑463, 253 N.E.2d 346 (1969). The trial judge, considering the conflicting
proofs, including the experts' opinions, evidently accepted[28 Mass.App.Ct. 34] the Commonwealth's view
and found beyond a reasonable doubt that the contents of the nine bags were, as
indicated, 30.9 grams, 37% pure cocaine.
We see no basis here for reversal.
[5] The
defendant complains that, of the four worksheets of the laboratory analyst which
were to be received from the Commonwealth by way of discovery, only three were
produced; the fourth, related to the
nine bags, was lost. The loss is
regrettable, but there was nothing intentional about it. Compare
Commonwealth v. Light, 474 N.E.2d
1074 (1985). Allowing for the most that
could in reason be expected to turn up on the lost worksheet, there is no
ground to believe that it could help to persuade the judge to accept the
defendant's position about the tests, or to modify in any way his acceptance of
the Commonwealth's position.
Judgment affirmed.
(FN1.) Guns were also found and surrendered to
the police.
(FN2.)
To be read hereafter as "he/she" as in the text of the affidavit.
(FN3.)
The affidavit says "they" but we take it that "he/she" was
intended.
(FN4.)
In fact, these averments do not stand alone.
There is corrobation through Curtis's
surveillance. See Commonwealth v. Parapar, 404 Mass. 319,
323, 534 N.E.2d 1167 (1989). The
affidavit adds that the first informant told Curtis that Shea
carried a gun and had a pistol permit. A
check of the records had verified the permit in Shea's
name.
(FN5.)
The court in Rojas suggested that
veracity could be established where more details were provided about the
circumstances of an arrest, e.g., what role the informant played in obtaining
the arrest; whether the informant had
been proved correct in his statement of a particular fact. See 403 Mass. at 486‑487, 531 N.E.2d
255.
(FN6.)
Whether or not narcotics convictions.
See Commonwealth v. Vynorius, 369 Mass. 17, 19 n. 4, 336 N.E.2d 898 (1975).
(FN7.)
As to the possible occasions on which a defendant may attack such averments of
an affidavit and demand a hearing about their truth, see Commonwealth v. Abdelnour, 11 Mass.App.Ct.
531, 534‑538, 417 N.E.2d 463 (1981).
See also Commonwealth v. Brzezinski,
405 Mass. at 406‑408, 540 N.E.2d 1325.
(FN8.)
As stated in Quinn v. State Ethics Comm'n, 401 Mass. 210, 213, 516 N.E.2d 124 (1987): "Clerk magistrates act on bail
applications as part of their duties and thus they are not subject to the claim
[under G.L. c. 268A, § 7] that they have a financial
interest in two State employment positions.
When a clerk or assistant clerk acts on a bail application at a place of
detention not during regular working hours, G.L. c.
276, § 58, authorizes a charge of the same fee that a bail commissioner may
charge."
(FN9.) See G.L. c. 94C, § 32E(b
)(1), as in effect prior to St.1988, c. 124.