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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Tshudy, 34 Mass.App.Ct.
955 (1993)
Appeals Court of Massachusetts, Worcester.
No. 92‑P‑376.
Argued
Decided
Further
Appellate Review Denied
Michael A. Uhlarik, Asst.
Dist. Atty., for Com.
George N. Tobia, Gardner,
for Allen O. Tshudy.
Gregory V. Roach,
Before KASS, GILLERMAN and PORADA, JJ.
RESCRIPT.
[34 Mass.App.Ct.
955] Although there may have been
deficiencies in the confidential informant's basis of knowledge (i.e., the
informant's personal knowledge of the inculpatory
facts (FN2)), police surveillance and a controlled buy of marihuana
sufficiently filled gaps so as to establish probable cause for a search
warrant. It was error to allow motions
to suppress evidence on the ground that the search warrant upon which police
acted was inadequately supported.
Complaints
for possession of marihuana with intent to distribute it (G.L.
c. 94C, § 32C) and possession of a Class C substance (G.L.
c. 94C, § 34) provided the context of the suppression motions. Those complaints were the product of evidence
obtained in a search triggered by the following facts, contained in the
affidavit made in support of an application for a search warrant. A confidential informant told a detective in
the Westminster police department that for several months he had been buying
marihuana from a subordinate dealer who worked for the defendant [34 Mass.App.Ct.
956] Allen O. Tshudy. As the informant described his transactions,
he and the subordinate (or street) dealer would meet; the informant would place the order and pay
cash; the subordinate dealer would drive
to Tshudy's residence at
No more
than forty‑eight hours before he made his affidavit, Detective Salvatore
J. Albert, Jr., arranged with the informant for a controlled buy from Tshudy, employing the usual steps in that investigatory
tactic: he searched the informant to
assure that he did not then possess drugs;
he provided the informant with money;
and the informant was kept under police observation as he went about the
business of purchasing drugs from the target.
The police watched the informant as he met with the subordinate
dealer; followed the subordinate dealer
as he travelled to 197 Davis Road (keeping the
informant under observation all the while);
watched the subordinate dealer leave 197 Davis Street after a short time
and return to the informant; and watched
the informant after that encounter return to his police controllers. To
them the informant turned over the marihuana he had acquired.
On the
strength of this information, the police obtained a warrant to search the
defendant Allen O. Tshudy's residence at 197 Davis
Road and seized assorted plastic bags of vegetable matter, which proved out as
marihuana, as well as accouterments associated with drug dealing such as a
triple beam scale, a safe, a mirror, a razor, and straw (the last three more
commonly associated with cocaine rather than marihuana). All the fruits of the seizure were subject to
the suppression order entered by a judge of the District Court.
In making
that suppression order the judge relied on
Commonwealth v. Kuszewski, 385 Mass. 802, 804‑805,
434 N.E.2d 203 (1982), of which the instant case seemed to the judge
"almost a replica."
Suppression was warranted in Kuszewski because the information about the details of
the defendant's drug dealing in that case came not from the informant on whom
the government relied, but from the informant's friend. The informant himself had no basis of
knowledge but was relying on that of his friend. As for the affiant in Kuszewski, he did not know whether the
intermediary friend had any personal knowledge of the inculpatory
facts which would support a search warrant.
So here, the informant on whom Detective Albert relied did not have
personal knowledge of what was going on in Tshudy's
house; the informant relied entirely on
the middleman, the subordinate dealer.
Detective Albert did not know whether the subordinate dealer had
personal knowledge of what was likely to be found in Tshudy's
house or whether the subordinate dealer was someone who ought to be
believed. See also Commonwealth v. Allen, 406 Mass. 575, 576‑578, 549 N.E.2d
430 (1990).
Neither
the Kuszewski
or Allen case, however, included a
controlled buy as a basis of probable cause to issue a search warrant. That investigatory [34 Mass.App.Ct. 957] tactic has been held to shore up weaknesses which arguably may
appear in the information supplied by informants. Commonwealth v. Benlien, 27 Mass.App.Ct. 834,
838‑839, 544 N.E.2d 865 (1989). In
themselves, the observations of police officers monitoring a controlled buy
provide the police applicants for a search warrant with a solid basis of
knowledge, and the issuing magistrate surely is entitled to regard the accounts
of the percipient officers as reliable.
Some authorities have expressed the same conclusion slightly
differently. They have commented that
when the police investigators rely on information supplied to their informants
by others, i.e., when the on‑the‑ground observations are one step
removed, the police may "confirm the story told to their informant by
surveillance of the nonassertive conduct of the person who was the informant's
source." 1 LaFave,
Search and Seizure § 3.3(d), at 111 (2d ed. Supp.1993). State v. Mejia, 111
Wash.2d 892, 897‑898, 766 P.2d 454 (1989), is illustrative. In that case a middleman was quoted by the
informant as the basis for information about where drugs could be
obtained. Reliability and factual basis
were supplied by observations that the police made of the middleman during a
series of controlled buys.
The order suppressing evidence seized
December 20, 1990, is vacated.
(FN1.)
Commonwealth v. Jeanne L. TSHUDY.
(FN2.)
See Aguilar v. Texas, 378 U.S. 108,
113‑115, 84 S.Ct. 1509, 1513‑1514, 12
L.Ed.2d 723 (1964); Spinelli v. United
States, 393 U.S. 410, 412‑416, 89 S.Ct.
584, 586‑589, 21 L.Ed.2d 637 (1969); Commonwealth v. Upton, 394 Mass. 363,
374‑376, 476 N.E.2d 548 (1985); Commonwealth v. Luce, 34 Mass.App.Ct. 105, 106, 607 N.E.2d 427 (1993).