Opinion
No. 97-10374, 001-5
June 24, 1997
FACTS, RULINGS OF LAW AND MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
On June 9, 1997, this Court heard defendant Benjamin Canty's motion to suppress evidence seized as a result of the execution of a search warrant by the Boston Police Department on December 20, 1996. In support of his motion, the defendant maintains that the search was conducted pursuant to a warrant which lacked probable cause in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution, Article Fourteen of the Massachusetts Declaration of Rights and G.L.c. 276, § 1.
This Court conducted a hearing on the Motion to Suppress on February 12, 1997. For reasons set forth below, the defendant's motion to suppress is ALLOWED.
FACTS
The affidavit supporting the application for the search warrant at issue in this case reveals the following facts:
Boston Police Detective Bulman, the affiant, initiated a joint investigation with Special Agent Thomas Crowley of the Bureau of Alcohol, Tobacco and Firearms into the activities of the defendant Benjamin Canty of 12 Powellton Road, Apartment 1, first floor in Dorchester, Massachusetts.
The affiant began the investigation of the defendant and premises at 12 Powellton Road when he received information from a confidential informant. The affiant, together with Special Agent Crowley, had been receiving information from this particular confidential informant for one month prior to the instant application.
In particular, in the two weeks immediately prior to the application for the search warrant in this case, the confidential informant provided information concerning an individual who was wanted on a number of outstanding warrants. The affiant, accompanied by other Boston Police Officers "went to the location where the suspect was found and arrested the suspect." (Affidavit, at ¶ 3). In addition, the confidential informant had also provided Special Agent Crowley with information which led to the issuance of a federal search warrant. The execution of that search warrant led to the recovery of a firearm.
Because the focus, in this case, is on the statements in the affidavit as to the veracity of the informant, the Court quotes the relevant portion of the affidavit:
Within the past two weeks, the CI [confidential informant] provided me with information concerning an individual who was wanted on numerous outstanding warrants. As a result of this information I and other Boston Police Officers went to the location where the suspect was found and arrested the suspect. Additionally, the CI has recently provided [Special Agent] Crowley with information which he used as the basis for an affidavit for the issuance of a Federal search warrant. The warrant was ultimately executed and a firearm was recovered. . . . [Special Agent] Crowley has told me that, in addition to the incidents cited above, the CI has provided him with other intelligence and that he has found all of the information to be truthful and accurate.
(Affidavit, at ¶ 3).
The affidavit, however, failed to state a) whether the officers found the location at which the defendant was found based on information provided by the defendant; b) whether the arrest of the suspect was in any way connected to the seizure of the firearm; or c) whether the seizure of the firearm led to an arrest connected to that firearm. Moreover, the warrant did not include any details provided by the confidential informant which would describe the suspect or the contraband or the locations at which they could be or were found. In a general statement, the affidavit stated that the confidential informant had also provided additional information to Special Agent Crowley that had proven true in the past.
The confidential informant informed the officers that in the week prior to the search the confidential informant had been present in apartment one of 12 Powellton Road with the defendant and had observed the defendant in possession of a firearm described as a black TEC-09 pistol.
A licensing check with the Boston Police Department's Licensing Unit revealed that neither Benjamin Canty, Joberta Patrick nor Jack Patrick (husband of Joberta Patrick), the residents of 12 Powellton Street, apartment one, nor any other occupant of 12 Powellton Street possessed a license to carry firearms or a firearms identification card issued by the Boston Police Department.
The affiant concluded that people who possess firearms also possess other related items such as gun cases, ammunition, ammunition magazines, holsters, spare parts, cleaning equipment, photographs of firearms and receipts for the purchase of these items. He also concluded that persons who possess illegal firearms usually store them in their homes and keep them for a period of time. Finally, the affiant concluded that probable cause existed to believe that the defendant possessed and stored firearms and related material.
The affiant applied for and received a search warrant authorizing the officers to search the first floor apartment at 12 Powellton Road in Dorchester for "a black TEC-9 pistol type firearm, gun cases, ammunition, ammunition magazine holsters, spare parts, cleaning equipment, photographs of firearms, receipts for the purchase of these items and any indicia of ownership or possession of said items."
On December 20, 1996 at about 11:30 a.m., the affiant, accompanied by other members of the Violence Strike Force proceeded to 12 Powellton Road, apartment one and spoke with Joberta Patrick, the mother of the defendant. The officer explained to Mrs. Patrick that he believed the defendant possessed unlawful firearms in his bedroom and that he was requesting written consent to search apartment one of 12 Powellton Street. He indicated that although he requested her consent, he had a search warrant for the apartment.
The defendant's mother proceeded to show the affiant and Sergeant Paul Fitzgerald to the defendant's bedroom. Prior to entering the bedroom, the affiant showed and explained a written consent form to Mrs. Patrick and advised her of the Miranda warnings. Mrs. Patrick stated that she understood her rights and the consent form. Mrs. Patrick, Sergeant Fitzgerald and Officer Earl Perkins all signed the consent form.
The police searched the bedroom of the defendant later in the afternoon, at approximately 4:30 p.m., and found a loaded Dan Wesson magnum, an unloaded .38 caliber Arminus revolver and ammunition in a bag underneath the defendant's bed. The officers then searched the defendant's desk and found a .45 caliber pistol. They also found, in a hidden compartment in the desk, a Kiwi shoe polish container which contained eight small plastic bags of crack cocaine. The officers also recovered four traffic control signs, several cut plastic bags inside a boot, a shoe box containing marijuana residue, a backpack containing a triple beam scale, a box of sandwich bags and a playing card. The police arrested the defendant.
RULINGS OF LAW
Under Article Fourteen of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution, a magistrate is required to determine that probable cause exists before issuing a search warrant. Under the stringent standards adopted by the Supreme Judicial Court and Article Fourteen of the Massachusetts Declaration of Rights, in order to establish probable cause, an application for a search warrant that is based upon information provided by a confidential informant must comply with the principles set forth in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). In Commonwealth v. Upton, 394 Mass. 363, 370 (1985), the Supreme Judicial Court stated that an affidavit must set forth "(1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was `credible' or his information `reliable' (the veracity test)." Id. at 374-375.
In this case, the defendant has conceded, and this Court agrees, that because the basis of knowledge was personal observation by the informant, the first prong of the test — the basis of knowledge test — was satisfied. Commonwealth v. Byfield, 413 Mass. 426, 429 (1992); Commonwealth v. Montanez, 410 Mass. 290, 300 (1991).
The second prong of the test requires that the affidavit contain sufficient information as to the informant's veracity. The defendant claims — and this Court agrees — that the affidavit in this case is devoid of detail showing that the informant provided reliable information in the past.
The veracity prong of the test may be satisfied by demonstrating that the informant provided information in the past which has proved to be accurate. Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991), citing Commonwealth v. Valdez, 402 Mass. 65, 71 (1988). An affidavit which recites that an informant previously provided information leading to an arrest is not sufficient to satisfy the reliability prong of the test. Commonwealth v. Mejia, 411 Mass. 108, 111 (1991); Commonwealth v. Rojas, 403 Mass. 483, 488 (1988). For the informant to be considered reliable by way of information provided in the past, it must be shown that the information provided by the confidential informant was detailed ("`detail regarding the circumstances of the prior arrest,' such as facts relating to the informant's participation in the arrest or the accuracy of the informant's information on that prior occasion"); led to the arrest of a suspect; and resulted in the seizure of contraband incident to that arrest. Commonwealth v. Mejia, 411 Mass. at 111, quoting Commonwealth v. Rojas, 403 Mass. at 486. See also Commonwealth v. Perez-Baez, 410 Mass. at 45-46 (informant provided information which led to two separate arrests for possession of cocaine and seizure of the cocaine incident to those arrests). See also Commonwealth v. Byfield, 413 Mass. at 430.
In Commonwealth v. Perez-Baez, the Court held that the prior tip had led not only to arrests but also to the seizure of cocaine and the Court construed the affidavit "as meaning that the prior tip stated that a search of a particular specified location would disclose cocaine or some similar substance, and that statement proved to be correct." Id. The affidavit in Commonwealth v. Perez-Baez, read as follows, in pertinent part:
On several occasions in the past, [confidential informant] IT provided information leading to the arrest of persons for drug offenses and seizures of controlled substances. On one of these occasions, `IT' provided information leading to the arrest of Rafael TEJEDA for Possession Class `B' cocaine, seized was one plastic bag containing a white powder. On another occasion, `IT' provided information leading to the arrest of William SANCHEZ for Possession Class `B' cocaine, seized was a bag containing white powder. . . ." Id. at 45 n. 2.
In contrast, Detective Bulman's affidavit stated only that the informant provided information concerning an individual wanted on a number of warrants, that the officers found and arrested that person and on a second occasion the informant provided information for a federal search warrant pursuant to which a gun was seized. See note 1, ante.
The Commonwealth suggests that since the prior arrest information was followed by a recitation of information regarding a second prior incident in which contraband was seized, the affidavit reflects that the confidential informant provided information in the past regarding an arrest followed by a seizure. The fact that the affidavit at issue in this case may have provided information regarding the arrest of one suspect (a fact that is not entirely clear by reading the affidavit) and information regarding the seizure of contraband which, by the affidavit at least, is wholly unrelated to the arrest, is not sufficient to satisfy the veracity prong of the test. Commonwealth v. Rojas, 403 Mass. at 486 ("A naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish an informant's veracity."). Compare Commonwealth v. Byfield, 413 Mass. at 430 (informant previously furnished information: a) leading to an arrest and conviction of a named individual for possession of cocaine, and b) provided information leading to the arrest of three named individuals for cocaine and marijuana possession coupled with the seizure of both cocaine and marijuana held sufficient to satisfy veracity test). Since the affidavit does not support the conclusion that the confidential informant has proved reliable in the past, it fails for probable cause and the evidence uncovered as a result of the execution of the lacking search warrant must be suppressed.
Because the Court concludes that the evidence must be suppressed for failure to show probable cause, the Court need not address the defendant's remaining arguments concerning consent, scope of the search and the defendant's connection to the contraband.
ORDER
For the reasons set forth above, the defendant's motion is ALLOWED.
_____________________________ Nonnie S. Burnes Justice of the Superior Court
Date: _____, 19__