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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.
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Robert J. Bender, Asst. Dist. Atty. (Brian T. O'Keefe, Asst. Dist. Atty., with
him), for Com.
John F. Tierney,
Before HENNESSEY, C.J., and WILKINS, NOLAN and
O'CONNOR, JJ..
HENNESSEY, Chief Justice.
The
Commonwealth, pursuant to Mass.R.Crim.P. 15(b), as amended, 397
The
defendant was arrested in a second floor apartment at 68 Rockaway Street in
Lynn on July 31, 1986, and charged with, inter alia, cocaine trafficking. The police had obtained a search warrant for
the premises earlier that day. The
request and supporting affidavit were filed by a State police officer who had
been investigating Controlled Substance Act violations full‑time for four
years.
The
affidavit states as follows: (1) The
officer met with a confidential and reliable informant on
[402 Mass. 67] Following his arrest, the defendant filed a motion for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, where a defendant makes a preliminary
substantial showing that an affidavit contains intentionally false statements,
or statements made with reckless disregard for the truth, which were necessary
to the determination of probable cause, he is entitled to a full hearing on the
issue. If intentionally false
statements, or statements made with reckless disregard of the truth, are found
to exist in the affidavit, and such statements were material to the finding of
probable cause, they are excised. If the
affidavit as redacted fails to establish probable cause, then any evidence
seized pursuant to a warrant issued on the basis of the affidavit is
suppressed. Franks, supra at 155‑156, 98 S.Ct.
at 2676.
The
defendant also filed a motion to suppress the evidence obtained during
execution of the warrant. As grounds for
suppression, the defendant argued that the warrant had been issued without
probable cause, that the affidavit was facially insufficient, that as a matter
of public policy the warrant should not have issued where the supporting
affidavit contained statements which, at minimum, were made with reckless
disregard for their truth, and that the warrant had been improperly
executed. (FN1)
In his
memorandum in support of the motion for a
Franks hearing, the defendant pointed out a number of misstatements in the
affidavit. First, the affidavit
indicates that the affiant had a conversation with the informant on July 27,
1986, about events which occurred on July 28, 1986. Second, although the warrant was issued on
July 31, 1986, the affidavit refers to a conversation between the affiant and
informant on August 30, 1986. Third, the
individual identified as one of the known drug users observed during
surveillance was, according to the defendant, out of the country during the
surveillance period. [402 Mass. 68] This assertion was supported by affidavit and accompanying proof.
At a
preliminary hearing on the Franks
issue, the Commonwealth indicated that the affidavit's date discrepancies were
the result of typographical errors.
Further, in its memorandum in opposition to holding a Franks hearing, the Commonwealth argued
that, even if the affidavit contained a misstatement concerning the identity of
one of the known drug users, that statement was immaterial to the finding of
probable cause. The judge agreed with
the Commonwealth's arguments and denied the defendant's motion for a Franks hearing. He concluded that "at best [the]
defendant has demonstrated only negligent (typographical) errors contained in
the subject affidavit, which are insufficient to mandate a Franks hearing, as well as a possibly intentional or reckless
error (or misrepresentation) which was not necessary to a finding of probable
cause for issuance of the search warrant."
Three
weeks after the defendant's request for a
Franks hearing had been denied, a hearing on his motion to suppress was
held. A different judge presided at this
hearing. The defendant's motion to
suppress was granted.
In his
order the judge did not address the defendant's arguments that the affidavit
did not establish probable cause to issue the warrant, that the affidavit was
facially insufficient, or that the warrant had been improperly executed. Instead he concentrated on the errors
contained in the affidavit. He had heard
testimony from the affiant that the erroneous dates contained in the affidavit
were typographical errors (FN2) and that an honest mistake in identifying one
of the observed known drug users had been made.
(FN3) After finding, on
sufficient evidence, [402 Mass. 69] that the person identified had been
out of the country during the surveillance period, the judge concluded that
"[t]he amount of errors in the affidavit cannot legally or morally allow
for the issuance of the warrant in this matter.
Taken alone, each error can be subject to some explanation. But, the series of errors lead me to the
inescapable conclusion of either a total lack of care by the police or total
negligence."
The
Commonwealth first contends that it was error for the second judge to suppress
the evidence on the basis of errors in the affidavit, after the first judge had
denied the defendant's motion for a
Franks hearing, and the defendant had not asked the first judge to
reconsider his ruling. We disagree. Because the defendant failed to make the required
preliminary showing, a "Franks‑type
hearing was not constitutionally mandated.
The judge could, nevertheless, determine in his discretion to hold a Franks‑type hearing...."
Commonwealth v. Douzanis, 384 Mass. 434, 443, 425 N.E.2d 326 (1981).
[1] While
the judge was free to conduct a Franks
hearing, it is not clear that he suppressed the evidence on the basis of Franks. His order does not rely on that opinion nor
does it cite any of our decisions construing it. Rather, the order simply states, without
citation, that, given the number of errors in the affidavit, there was no basis
to "legally or morally allow for the issuance of the
warrant...." Thus, the basis of the
judge's order may have been, in essence, that the "[c]areless and
unnecessary defects in form and construction of the affidavit ... constitute[d]
a violation of G.L. c. 276, art. 14 of the Declaration of Rights of the
Constitution of the Commonwealth, or the Fourth Amendment of the United States
Constitution, so as to render [the] search invalid." Commonwealth v. Truax, 397
Mass. 174, 182, 490 N.E.2d 425 (1986).
We
conclude that the judge erred in suppressing the evidence, whether he did so on
the basis of Franks or on the
presence of "[c]areless and unnecessary
defects" in the affidavit. The
judge's suppression order properly can be based on Franks "only if he found that the warrant affidavit contained
a deliberate or reckless misrepresentation of a material fact and only if the
sanitized affidavit did not support a finding of probable [402 Mass. 70]
cause." Commonwealth v. Honneus, 390 Mass. 136,
143, 453 N.E.2d 1053 (1983). The judge
made no explicit finding that the errors in the affidavit constituted
deliberate or reckless misrepresentations of material fact. Indeed, he indicated, as the first judge
found, that the incorrect dates appearing in the affidavit were typographical
errors. As such they were at most
negligent misrepresentations and cannot form the basis of suppression under Franks or art. 14. See Commonwealth v. Nine Hundred & Ninety‑two
Dollars, 383 Mass. 764, 771‑772, 422 N.E.2d 767 (1981).
Even if we
assume that the remaining error in the affidavit, the misidentification of one
of the "known drug users" observed during police surveillance, was a
reckless misrepresentation material to the finding of probable cause,
suppression under Franks would be
inappropriate. This is because, as will
be discussed fully below, the affidavit, with the misidentification excised,
supports a finding of probable cause to believe that evidence of crime would be
found at the premises searched. In this
circumstance suppression under Franks
is improper. Franks, supra, 438 U.S. at 155‑156,
98 S.Ct. at 2676.
[2][3] The
affidavit is based in part on information from an unidentified informant. Thus the affidavit must make clear the basis
of the informant's knowledge and the grounds on which the affiant concluded the
informant was credible or his information was reliable if that information is
to be used in determining whether the affidavit established probable cause to
believe that contraband would be found at the defendant's apartment. See Commonwealth v. Upton, 394 Mass. 363, 374‑375,
476 N.E.2d 548 (1985) (explaining 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] ). The affidavit indicates that the basis of the
informant's knowledge was his personal observations made on two separate visits
to the defendant's apartment. The first
prong of the Aguilar‑Spinelli
standard was satisfied.
The second
prong of the Aguilar‑Spinelli
standard, the veracity test, also was satisfied. The informant's credibility is initially
indicated by the affidavit's recitation of his then recent providing of
information to the police which led to a "cocaine arrest" on an
outstanding 1985 warrant. It is fairly
inferable [402 Mass. 71] from this statement in the affidavit
that the informant provided information as to the arrestee's whereabouts,
rather than information helpful to an investigation of crime. We think that this level of past assistance
standing alone satisfies the veracity prong of the Aguilar‑Spinneli standard.
Further, the independent police surveillance detailed in the affidavit
bolsters the informant's credibility.
See Upton, supra, 394 Mass. at 376, 476
N.E.2d 548. Even with the
misidentification excised, the affidavit states that the police observed
activity (known drug users entering and remaining for three to five minute
periods) consistent with the informant's statements that drugs were being
offered for sale at the apartment building.
(FN4) The police surveillance, in
sum, lent credence to the informant and his statements, thereby remedying any
arguable deficiency regarding the second prong of the Aguilar‑Spinelli standard. Upton, supra at 376, 476
N.E.2d 548.
Having
determined that the Aguilar‑Spinelli
standard is met, and, therefore, that the informant's statements can be
considered, we review the entire affidavit and conclude that it established
probable cause to believe that contraband would be found at the defendant's
apartment. Despite the affidavit's
typographical errors the informant's statements
indicate that he had very recently‑‑"within the past 48
hours"‑‑observed drugs in the defendant's apartment. Contrast Commonwealth v. Reddington, 395 Mass.
315, 322‑323, 480 N.E.2d 6 (1985) (January tip insufficient to establish
probable cause in August). By placing
the drugs in the defendant's apartment, the informant's statements add
precision to the police surveillance which concentrated on the main entrance of
the apartment building. The affidavit,
read as a whole, with the misidentification excised, and in a commonsense
manner, see Commonwealth v. Saleh, 396 Mass. 406,
412, 486 N.E.2d 706 (1985), provided the magistrate a "substantial
basis," Truax, supra, 397 Mass. at 178, 490
N.E.2d 425, for concluding that the drugs would be found in the defendant's
apartment. Therefore, suppression pursuant
to Franks would be improper.
[402 Mass. 72] [4] We also disagree with the apparent conclusion of the second
judge below that there must be suppression, aside from the Franks principle, because of multiple errors in the
affidavit. Despite the errors in the
affidavit, the warrant was issued in compliance with all relevant statutory and
constitutional provisions. Truax, supra at 179‑180, 490
N.E.2d 425. See Commonwealth v. Sheppard,
394 Mass. 381, 389‑390, 476 N.E.2d 541 (1985); G.L. c. 276, § 2B (1986 ed.).
The judge
below did not reach or consider the issue whether there was a sufficient
showing of probable cause. However, in
deciding that suppression was not proper under either Franks or Truax, we also
have shown, supra, that there was an
adequate showing of probable cause for the search and seizure. Thus, what we have said disposes of all the
defendant's proffered grounds for suppression save one. See note 1
supra. The suppression order is
vacated and this case is remanded to the Superior Court for a determination of
the lawfulness of the warrant's execution.
So ordered.
(FN1.) The judge made no findings or rulings
as to the legality of the warrant's execution in ordering suppression. The defendant presented evidence which he
argues shows that the police made an unjustified "no‑knock"
entry of his apartment when executing the warrant. As will be seen infra, we have indicated that the lawfulness of the warrant's
execution will be determined on remand.
(FN2.)
The affiant testified that the meeting which the affidavit indicates occurred
on July 27 actually took place on July 29.
Similarly, the second meeting occurred on July 30 not August 30. The affiant stated that he failed to read the
affidavit "that carefully" after it had been typed by a secretary
working from the affiant's notes.
(FN3.)
The affiant testified that, while at the time the affidavit was prepared, he
had "no uncertainty" as to the identification, it appeared that the
person who had been observed during the surveillance was the brother of the man
named in the affidavit.
(FN4.)
The surveillance bolsters the informant's credibility even though the police
observed only the building's main entrance and not the defendant's second floor
apartment. See Commonwealth v. Hall, 366
Mass. 790, 798, 323 N.E.2d 319 (1975).