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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. Singer, 29 Mass.App.Ct.
708 (1991)
Appeals Court of Massachusetts,
No. 90‑P‑518.
Argued
Decided
Further
Appellate Review Denied
Harold H. Hakala,
Jane A. Donohue, Asst. Dist. Atty., for Com.
Before DREBEN, KAPLAN and PORADA, JJ.
DREBEN, Justice.
[1] On
In his
appeal, the defendant claims that he made a substantial preliminary showing
that the confidential informant whose information provided the basis for the
issuance of the search warrant did not exist and that he was entitled to an
evidentiary hearing under Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d
667 (1978). He also claims that even if
a Franks hearing was not required,
his request for an in camera hearing should have been granted under Commonwealth v. Amral,
407 Mass. 511, 522‑523, 554 N.E.2d 1189 (1990), since he had asserted
facts casting "reasonable doubt on the veracity of material
representations made by [the officer in his affidavit supporting the warrant]
concerning a confidential informant."
We affirm the conviction.
The
affidavit in support of the search warrant, set forth in its entirety in the
appendix, was signed by Officer Joseph Geary.
It alleged that Geary was experienced in drug investigations and had
participated in approximately 400 arrests involving cocaine; that he had information from a confidential
and reliable informant who had provided him with information in the last six
months which had led to the arrest of one Stanley Strouble
for trafficking in cocaine and a seizure of[29
Mass.App.Ct. 710] cocaine, and with information which had
led to the arrest of Eddie Reynolds for possession of cocaine with intent to
distribute, resulting in a seizure of cocaine and a conviction; that the informant told him that the
defendant was selling cocaine in various quantities from the first floor right‑side
apartment at 38 Spring Park Avenue, Jamaica Plain, and from a room in the
cellar which contained a safe; that the
informant was physically present when a white male purchased cocaine in that
apartment and that he saw the white male make an additional purchase of cocaine
which was taken from a locked safe in a locked room in the cellar. Based on this information, Officer Geary
asserted that he and other members of the drug control unit set up observations
of 38 Spring Park Avenue; that Geary
observed individuals known to him to be involved in cocaine dealing enter that
building and depart within a few minutes;
that he saw the defendant, who had become known to Geary through police
records, photographs, and other investigative means, enter a 1978 Lincoln
automobile registered to him which was parked in the driveway of 38 Spring Park
Avenue; that Geary followed the vehicle
to the intersection of St. James Avenue and Berkeley Street; that he saw a white male, approximately 5'
6"' tall, weighing 150 pounds, approach the Lincoln, converse with the
defendant, and hand him money; that he
observed the defendant take out a small clear wrapper containing a white
substance and hand it to the white male;
and that based on his experience as a narcotics investigator, he
believed that the incident was a drug transaction.
The
application was successful, and a warrant issued authorizing a search for,
inter alia, cocaine, keys, money, and drug
paraphernalia in:
"all rooms, closets and
storage areas inside the first floor right side apartment, located at 38 Spring
Park Avenue ..., a large floor model safe ... and the room in the cellar ... in
which the large floor model safe is located.
And all common areas inside 38 Spring Park Avenue which the occupants of
the first floor right side apartment have access to including the cellar."
[29 Mass.App.Ct.
711] On execution of the warrant,
the police, as recited earlier, found drugs and other incriminating material.
Prior
to trial, the defendant moved for an "evidentiary Franks hearing" and for the disclosure of the identity of the
unnamed informant. Franks v. Delaware, 438 U.S. at 155‑156,
98 S.Ct. at 2676, held that if a defendant
"makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment requires that
a hearing be held at the defendant's request." See also
Commonwealth v. Honneus, 390 Mass. 136, 142, 453
N.E.2d 1053 (1983). If the defendant
makes the requisite showing at such a hearing, and if the remaining content of
the affidavit after the offending material is excised is insufficient, the
"search warrant must be voided and the fruits of the search excluded to
the same extent as if probable cause was lacking on the face of the
affidavit." Franks 438 U.S. at 156, 98 S.Ct. at 2676.
The
defendant made three attempts before two motion judges to receive a Franks hearing. Using the two arrests listed in Geary's
affidavit as a starting point, counsel for the defendant examined the
affidavits in support of search warrants for those two cases and found therein
the names of persons whose criminal activities appear to have been revealed by
the same informant. At the time of the
first argument on the defendant's motion (October 27, 1988), counsel's
investigation disclosed that the informant apparently had provided information
leading to nine seizures of drugs and arrests for possession and trafficking of
cocaine and marijuana. Counsel urged
that the data provided involved so many diverse socioeconomic backgrounds and
geographical areas that it was implausible that the information came from only
one informant. In addition, counsel
argued that the claim that the informant had led to the arrest and seizure of
drugs relating to William Papageorge was knowingly false
(FN2) because Geary's[29 Mass.App.Ct. 712] own testimony at the grand jury hearings
prior to Papageorge's indictment indicated that no
informant was involved in that case. The
defendant's motion was accompanied by the Papageorge grand jury minutes, four
search warrants, a chart showing interrelations among the persons named in the
various affidavits, and an affidavit of counsel.
After
taking the matter under advisement, the first motion judge denied the
defendant's request, concluding that there was nothing remarkable about one
informant's presence at drug deals in Jamaica Plain, Mattapan, Dorchester, and
the South End over the course of a year, as the informant could be a supplier
to those locations. The judge also noted
(correctly) that the defendant had provided no evidence regarding the
socioeconomic diversity of the people arrested.
As to the Papageorge grand jury minutes, the judge concluded that at
least three persons were in a position to have acted as an informant. More will be said about the Papageorge case
later on.
Buttressed
by adverse publicity concerning police practices in the Boston Globe in March,
1989, in connection with the Lewin case, see the
subsequent opinion in Commonwealth v. Lewin, 405 Mass. 566, 542 N.E.2d 275 (1989), the
defendant, on April 12, 1989, sought reconsideration of the judge's
ruling. He presented the results of
additional investigation showing that fifteen more affidavits appeared to rely
on the same informant. These affidavits
were submitted to the judge as well as a chart purporting to show that the
informant here relied upon had given information leading to more than thirty
arrests. (FN3) The Papageorge transcript of trial was also
included. The motion for reconsideration
was denied without a hearing.
The
defendant next brought the matter before a second motion judge, arguing this
time that although the informant probably existed (the description of the
apartment was too[29 Mass.App.Ct. 713] accurate to be invented), his prior track
record was misrepresented in order to procure the warrant. Counsel again pointed to the Papageorge
transcript and the similarity of language in the warrants. The second judge ruled that there had been no
substantial preliminary showing as required by Franks.
1. Right to a "Franks hearing."
[2]
To substantiate his claim that a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included in Geary's affidavit,
the defendant, in this appeal, refers to the Papageorge case and also to the
large number (approximately twenty) of affidavits appearing to rely on the same
informant. See Commonwealth v. Lewin, 405 Mass. at 582,
542 N.E.2d 275. His showing is
insufficient.
We
turn to the facts as appearing in the Papageorge trial transcript. Papageorge rented a car from Hertz on
September 24, 1985, to be returned on October 1. The Hertz car control office was notified on
October 15, 1985, by a representative of the Copley Place public parking
facility that the Hertz car had been in the same space in that facility for
more than twenty days and that the facility wanted it removed. It was suggested that the managers believed
the parking fees would not be paid. When
the car was brought to the Hertz distribution center on McLellan
Highway on October 16, two gym bags were found in the trunk. The next day, October 17, a person
identifying himself as William Papageorge appeared at the downtown Hertz
office, spoke by telephone to Michael Creane, the
station manager at the McLellan Highway office of
Hertz, and informed him that there were bags in the car of concern to him. Creane arranged
with Papageorge that the bags would be sent to the
downtown Hertz office so that they could be picked up. Creane, following what
he claimed to be a routine procedure, opened the bags and found that they
contained plastic wrappers with white powder.
He called his supervisor, who in turn asked another witness to look at
the contents. The security manager for
Hertz was informed of the suspected contraband and called the police. When an employee of Papageorge[29 Mass.App.Ct.
714]
came to pick up the drugs, later determined to contain 813 grams of
cocaine, police detectives, including Officer Geary, were on hand.
While
no informant is mentioned at the Papageorge trial, numerous persons were aware
that the gym bags were found. As the
judge in that case noted, it was an extraordinary "coincidence" that
on the day after the car was towed to Hertz and the bags found, Papageorge called
about the contents of a car abandoned for twenty days in a public garage. It is not unlikely that Papageorge's
"fortuitous" appearance at the Hertz office was at the suggestion of
someone helpful to the police. Without Papageorge's voluntary involvement, there probably would
not have been enough evidence to link him to the drugs. That a confidential informant assisted the
police appears far from a reckless or false statement.
Nor
do twenty affidavits based on information from one informant provide the
substantial preliminary showing of intentional or reckless falsity required by Franks. In
Commonwealth v. Lewin, supra, upon which the
defendant relies, there was far more evidence of perjury than the mere number
of applications (thirty‑one) for search warrants. There were sworn repudiations of the
existence of the confidential informant by three police officers. 405 Mass. at 582, 542 N.E.2d 275. See
Commonwealth v. Lewin, Liacos,
C.J., dissenting, at 591 n. 3, 542 N.E.2d 275,
doubting that an affidavit which relies on an informant who supplied
information leading to thirty warrants would be deemed invalid on its
face. See also Commonwealth v. Robinson, 403 Mass. 163, 164, 165, 526 N.E.2d 778
(1988) (twenty‑five arrests and fifteen convictions); Commonwealth v. Santana,
403 Mass. 167, 168, 170, 526 N.E.2d 1051 (1988) (thirty tips from same
informant).
[3][4][5]
We also base our conclusion that the defendant was not entitled to a Franks hearing on the circumstance that
if the material provided by the informant were excised, the remaining portion
of the affidavit detailing police corroboration is sufficient for a finding of
probable cause. Officer Geary personally
observed individuals known to him to be involved in cocaine dealing enter 38
Spring Park Avenue and leave within a few minutes, thus suggesting a drug
operation. See [29 Mass.App.Ct. 715] Commonwealth v. Hall,
366 Mass. 790, 798, 323 N.E.2d 319 (1975); Commonwealth v. Parapar,
404 Mass. 319, 323, 534 N.E.2d 1167 (1989).
Geary's observations are probative even though he observed only the main
entrance and not the defendant's particular apartment. See
Commonwealth v. Valdez, 402 Mass. 65, 71 n. 4, 521 N.E.2d 381 (1988). Geary also saw the defendant engage in what
he, an experienced narcotics investigator, believed to be a drug
transaction. It was reasonable to assume
that drugs, drug paraphernalia, and money, the items specified in the warrant
and seized, would be located in the residence of a person engaged in drug
transactions. See Commonwealth v. Cinelli, 389 Mass. 197,
213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct.
186, 78 L.Ed.2d 165 (1983). The
designation in a search warrant of the name of the occupant of the apartment to
be searched is generally sufficient to identify the unit. (FN4)
See State v. Cortman,
251 Or. 566, 569, 446 P.2d 681 (1968), cert. denied, 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1969); Manley v. Commonwealth, 211
Va. 146, 151‑152, 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971). See also
State v. Kyles, 513 So.2d 265, 270 (La.1987),
cert. denied, 486 U.S. 1027, 108 S.Ct. 2005,
100 L.Ed.2d 236 (1988); State v. DeLaurier,
533 A.2d 1167, 1171 (R.I.1987); 2 LaFave, Search and Seizure § 4.5(b), at 217 (2d ed.
1987). In any event, there was here no
possibility of error or reason to apply the exclusionary rule, as the defendant
led the officers to the apartment and admitted them. Commonwealth v. Petrone, 17 Mass.App.Ct. 914,
915, 455 N.E.2d 1227 (1983). Although
there was not independent probable cause, without the informant's data, to
search the cellar, this was not necessary where, as here, the search was of an
area to which Singer (and, perhaps, no others) had access and which was
reasonably capable of containing the objects of the search. See Commonwealth v. Signorine,
404 Mass. 400, 404‑405, 535 N.E.2d 601 (1989); Commonwealth v. Pacheco,
21 Mass.App.Ct. 565, 567‑568, 488 N.E.2d 42
(1986). See also Commonwealth v. Scala, 380 Mass. 500, 508‑509, 404 N.E.2d 83
(1980). Compare Commonwealth v. Hall, 366
Mass. 790, 791, 798‑800 & n. 11, 323 N.E.2d 319 (1975).
[29 Mass.App.Ct.
716] 2. Right to an "Amral hearing."
[6]
Relying on Commonwealth v. Amral, 407 Mass. at 522‑523, 554 N.E.2d 1189, the
defendant also argues that even if he is not entitled to a Franks hearing, he has cast sufficient doubt to have a hearing to
determine whether he has a right to such a hearing. In Amral, at 522, 554 N.E.2d 1189, the Supreme Judicial
Court, departing from former rulings, (FN5) held "that the public interest
in deterring police misconduct requires the trial judge to exercise his or her
discretion to order an in camera hearing where the defendant by affidavit
asserts facts which cast a reasonable doubt on the veracity of material
representations made by the affiant concerning a confidential
informant." We need not reach the
question whether the defendant has asserted sufficient facts to trigger such a
hearing or whether Amral
is applicable (having been decided subsequent to the rulings being appealed)
because of our holding that the remaining portion of the Geary affidavit
supports a finding of probable cause.
Since the purpose of the Amral hearing is to determine the right to a Franks hearing, if the latter is not
necessary for a reason apart from the alleged misrepresentations (i.e., because
there is independent probable cause), no Amral hearing is required.
Judgment affirmed.
[29
Mass.App.Ct. 717]
APPENDIX.
Affidavit in Support of Search
Warrant
I,
Joseph Geary, am a Boston Police Detective assigned to the Drug Control
Unit. The date of this Affidavit In
Support of Application for a Search Warrant is October 9, 1986. I have been employed as a Boston Police
Officer for the past eightteen [sic ] years, the last three of which, I have been assigned to the
Drug Control Unit. During my years of
experience, I have participated in approximately 500 arrests for violations of
the Controlled Substance Act, of which, approximately 400 arrests have involved
the controlled substance, cocaine. Many
of these cocaine arrests are the result of information I received from reliable
informants. I have also attended and
received training at various narcotic seminars, conventions, and
academies. I have information based upon
a confidential and reliable informant, who has been reliable in the past six
months by providing me with information which led to the arrest of Stanley Strouble for Trafficking in Class "B" (Cocaine),
the seizure of cocaine, and the case now pending in Suffolk Superior
Court. This informant has also provided
me with information in the past six months that led to the arrest of Eddie
Reynolds for Possession of Class "B" (Cocaine) with Intent to
Distribute, the seizure of Class "B" (Cocaine) and a Guilty
finding for Unlawful Possession of Class "B" (Cocaine) in Boston
Municipal Court. This informant,
hereinafter referred to as "IT", now tells me that a white male,
known to "IT" as John Singer, is selling Class "B"
(Cocaine) in various quantities from the first floor right side apartment which
is located at 38 Spring Park Avenue, Jamaica Plain and from a room, located
within the cellar of 38 Spring Park Avenue, Jamaica Plain, which contains a
tall floor model safe, where "IT" tells me the cocaine is stored. "IT" describes John Singer as a
white male, approx. 39 years of age, approx. 5'5, 140 lbs., with brown hair and
brown eyes. "IT" further tells
me that within the past three days, "IT" was physically present at
the door to the first floor right side apartment located at 38 Spring Park
Avenue, Jamaica Plain, when a third individual described as a white male in his
early twenties knocked on the door to the first floor right side
apartment. "IT" tells me that
the door to the first floor right side apartment was opened by the individual
known to "IT" as John Singer.
"IT" further relates that the white male caller in his early
twenties stated to John Singer, "I need to get an eight‑ball and a
sixteenth." "IT" states
that John Singer allowed the white male caller in his early twenties and
"IT" inside the first floor right side apartment and closed the door
behind them. "IT" further
relates that John Singer accepted $350.00 U.S. Currency from the white male
caller in his early twenties, counted it out loud, reached inside his shirt
pocket, took out a small clear plastic wrap containing white powder and handed
the small clear plastic wrap with whit [sic
] powder to the white male caller in his[29
Mass.App.Ct. 718] early twenties. "IT" also tells me that John Singer
then stated out loud, "Follow me, I'll have to get the eight‑ball
downstairs." "IT" further
relates that "IT" followed John Singer and the white male caller in
his early twenties down a staircase, located inside a front room of the first
floor right side apartment, into the cellar of 38 Spring Park Avenue, Jamaica
Plain, Mass. "IT" goes on to
state that once in the cellar, John Singer turned left, walked over to a door,
opened it with a key and walked inside followed by the white male caller in his
early twenties and "IT." Once
inside this room, "IT" tells me that John Singer walked over to
another door, opened it, and walked inside‑‑again followed by the
white male caller in his early twenties and "IT." "IT" further relates that once
inside this second room, John Singer walked over to a large floor model safe
with a combination lock. "IT"
goes on to say that John Singer opened this tall safe by turning the
combination dial. "IT" states
that John Singer then opened the door to the safe, reached inside, took out a
clear plastic wrap containing white powder and handed it to the white male
caller in his early twenties while stating out loud, "This is a strong
eight‑ball. He also got ounces of
some of the best blow around selling for 16 hundred bucks." "IT" further tells me that in the
vernacular of cocaine users and dealers that 'blow' is slang for cocaine and
that 'eight‑ball' is slang for one‑eighth of an ounce of cocaine.
As
a result of the information I received, myself and other members of the Drug
Control unit at divers [sic ] times
in the past two weeks and most recently within the past three days have set up
observations of 38 Spring Park Avenue, Jamaica Plain, Mass. During these periods of observations, I have
observed individuals, some of whom are known to me to be involved in cocaine
dealing, enter 38 Spring Park Avenue and depart within a few minutes. I have also observed the individual described
above as being a white male, approx. 39 years old, approx. 5'5, 140 lbs., brown
hair and brown eyes, enter and exit from 38 Spring Park Avenue. During one of these periods of observation,
on Monday, October 6, 1986, I observed the above described individual, who has
become known to me through police records and photographs, registry inquiries,
utility checks, as well as other investigative techniques, as Jonathan M.
Singer, exit from 38 Spring Park Avenue shortly after 2:30 P.M., enter a grey
1978, 2 door Lincoln bearing Mass. plate 347‑JRV, which was parked in the
driveway of 38 Spring Park Avenue. My
investigation revealed that this vehicle was registered to a Jonathan M.
Singer. I followed this vehicle,
operated by the individual known to me as Jonathan M. Singer, from 38 Spring
Park Avenue to the intersection of St. James Avenue and Berkley [sic ] Street, where the vehicle pulled
over and stopped. At approximately 3:00
P.M., a white male, approximately 5'6, 150 lbs., in his mid‑twenties,
with brown hair and clad in a brown cordoroy [sic ] sport jacket, approached the grey
Lincoln, and began to converse with Jonathan M. Singer through the open
driver's window. Moments later, I
observed the individual in the brown sport jacket, [29 Mass.App.Ct. 719] reach into his pant's pocket, take out U.S. Currency and offer it
to Jonathan M. Singer through the open driver's window. I then observed the individual, known to me
as Jonathan M. Singer, accept the U.S. Currency, reach into his own shirt
pocket, take out a small clear wrap containing a white substance and give it to
the individual in the brown sport jacket.
The white male in the brown sport jacket accepted the clear wrap
containing [the] white substance, examined it briefly, put it into his pant's
pocket and walked away. Based upon my
experience as a narcotics investigator, the information supplied to me by my
confidential and reliable informant, and having observed dozens of similar
transactions which have proven to be cocaine transactions, it is my belief that
the incident I witnessed on Monday afternoon at St. James Avenue and Berkley [sic ] Street‑‑and which I
have related above, was a drug transaction.
As
a result of the information I received from this confidential and reliable
informant and based upon my own observations, it is now my belief that cocaine
is being stored and sold from the first floor right side apartment located at
38 Spring Park Avenue, Jamaica Plain, and from a room in the cellar of 38
Spring Park Avenue which contains a large floor model safe.
Printed
Name of Affiant
Joseph
C. Geary
Sworn
and Subscribed to Before
S/Roger
B. Gill
Signed
under Penalties
of Perjury
S/Joseph C. Geary
10‑9‑86
(FN1.) Since this appeal involves rulings by
two motion judges prior to trial, we do not rely on facts developed at trial.
Commonwealth v. Collins, 11 Mass.App.Ct. 126,
132, 414 N.E.2d 1008 (1981), and cases cited.
To the extent that we recount some of the evidence at trial, we do so
merely to give context to the legal issues before us.
(FN2.) Geary's affidavit in the case at bar
attributed reliability to the informant, among other things, by reason of
information leading to a seizure of drugs and the arrest of Eddie
Reynolds; in Geary's affidavit in
support of the search warrant for the premises of Eddie Reynolds, the attribution
of reliability to the informant was based in part on the seizure of drugs and
the arrest of William Papageorge.
(FN3.) The police in some of these cases
effected multiple arrests.
(FN4.) As indicated earlier, Geary stated in
the affidavit that the name of the person observed by him was obtained from
police records and photographs, registry inquiries, and other investigative
techniques.
(FN5.) Prior to Amral, the judge, in his or her
discretion, could hold such a hearing but was not required to do so. See
Commonwealth v. Nine Hundred & Ninety‑two Dollars, 383 Mass. 764,
775 n. 12, 422 N.E.2d 767 (1981); Commonwealth v. Douzanis,
384 Mass. 434, 440, 443, 425 N.E.2d 326 (1981); Commonwealth v. Valdez,
402 Mass. at 69, 521 N.E.2d 381; Commonwealth v. Ramos, 402 Mass. 209,
216, 521 N.E.2d 1002 (1988); Commonwealth v. Signorine,
404 Mass. at 407, 535 N.E.2d 601. See
also
Commonwealth v. Abdelnour, 11 Mass.App.Ct. 531, 536 n. 5, 417 N.E.2d 463 (1981).