Opinion
No. 99-600-001, 4
September 27, 1999
FINDINGS, RULINGS AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND AFFIDAVIT
The defendant contends that the evidence obtained from the April 7, 1999 search of 10 Robert Road, Apartment 35, Somerville, Massachusetts should be suppressed because the affidavit used to obtain the search warrant was tainted with improperly obtained information and does not sufficiently satisfy the two-prongs of the Aguilar-Spinelli test. For the following reasons, defendant's motion is denied.
Defendant argues that because Trooper Zani's ("Zani") affidavit contains information concerning the 1993 and 1994 arrests of his co-defendant, Eduardo Rivera ("Rivera"), the affidavit is tainted, and thus was not sufficient to support a finding of probable cause for issuance of the warrant. Specifically, using a "fruit of the poisonous tree" analysis, he argues that because the evidence seized in connection with Rivera's 1993 arrest was deemed to be the result of an illegal warrantless search, by placing such information in his affidavit, Zani improperly influenced the magistrate's decision to issue the warrant. Further, though charges were not brought against Rivera in connection with the 1994 search, defendant contends that the affidavit in support of the 1994 warrant included information obtained from the 1993 search, and therefore was illegal and also should not have been included in Zani's affidavit.
Defendant has offered no support for his contention that the 1994 warrant was issued based on information obtained from the warrantless search of Rivera in 1993. Though the 1994 search resulted in the seizure of heroin and other items, the search warrant was never challenged and the case was not prosecuted. This court will not inquire into the legality of the 1994 search. As discussed below, even should this court strike any reference to the 1994 search in the affidavit, sufficient evidence still remained in the affidavit to justify the issuance of April, 1999 warrant.
"[E]vidence obtained in violation of constitutional guaranties against illegal search and seizure may not be considered in determining whether there was probable cause to obtain a warrant." Commonwealth v. White, 374 Mass. 132, 138 (1977), citing Commonwealth v. Hall, 366 Mass. 790, 795 (1975). If Zani improperly included references to the 1993 search in his affidavit, this court must first decide whether the remaining evidence contained in the affidavit provided probable cause to justify the issuance of the warrant. Hall, 366 Mass. at 797. If this court determines that the remaining evidence contained in the affidavit provided probable cause to justify the issuance of the warrant, the court next must determine whether the reference to Rivera's prior arrest in the affidavit fatally infected the warrant. Id. at 795.
The Sufficiency Of The Affidavit
In determining whether the affidavit contained sufficient information to justify a finding of probable cause needed to issue a search warrant, Massachusetts courts utilize the principles enunciated in Aguilar v. Texas, 394 Mass. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). See Commonwealth v. Upton, 394 Mass. 363, 374-377 (1985). If the affidavit is based on information obtained from a confidential informant, the affidavit must meet the two-pronged Aguilar-Spinelli standard. The affidavit must inform the magistrate of "(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)." Aguilar, 378 U.S. at 114. Here, as Zani's affidavit reported information he obtained from a confidential informant, the affidavit must be analyzed under the two-pronged Aguilar-Spinelli standard.
First, Zani's affidavit meets the basis of knowledge test because the informant's information was derived from his personal observations. The informant's observations and opportunity to observe, if sufficiently detailed by the affiant, satisfy the basis of knowledge test. See Commonwealth v. Amral, 407 Mass. 511, 512, 514 (1990) (basis of knowledge test met where informant went to defendant's residence and observed people packaging cocaine on the kitchen table); Commonwealth v Carrasco, 405 Mass. 316, 321 (1989) (informant, "on numerous occasions" observed heroin for sale); Commonwealth v. Valdez, 402 Mass. 65, 70 (1988) (basis of knowledge test satisfied where informant visited the defendant's apartment on two separate occasions and observed drugs on the premises). Here, Zani's affidavit sufficiently details CRI's basis of personal knowledge of having seen drugs inside apartment 35 and CRI's "observation of the contraband in the place to be searched satisfies the basis of knowledge test." Amral, 407 Mass. at 514, citing Commonwealth v. Ramos, 402 Mass. 209, 214 (1988) and Commonwealth v. Borges, 395 Mass. 788, 795 (1985). Indeed, CRI had been inside apartment 35 at 10 Robert Road within 24 hours of meeting with Zani, had provided a detailed description of the apartment, and had observed Rivera with a large amount of a powdered/chunky substance in bulk form, which Rivera told CRI that he was storing and packing for distribution. Further, CRI told Zani that the doorbell for apartment 35 is numbered 20, that the apartment is not in Rivera's name (nor were any of the utility bills) and that Rivera was driving a white Nissan pickup truck, not registered in his name, which facts were corroborated, as noted below.
Next, Zani's affidavit meets the veracity test because it recites a past instance in which CRI's information had proved to be accurate and resulted in a successful arrest, seizure, and conviction. See Amral, 407 Mass. at 515 (affidavit stating that informant had "given information in the past leading to the arrest and conviction of subjects for similar offenses" sufficient to meet veracity test); Commonwealth v. Perez-Baez, 410 Mass. 43, 45-46 (1991) (informant's prior tip led to arrests and seizure of cocaine); Commonwealth v. Kaufman, 381 Mass. 301, 302 (1980) (veracity test met where affidavit stated that the informant had supplied accurate information in the past which led to the arrest and conviction of a person on drug charges). Here, paragraph 6 of Zani's affidavit details a prior instance in 1994 where CRI's information contributed to the seizure of over 250 bags of heroin, and the arrest and subsequent conviction of one Belsariou Guzman. CRI's past reliability satisfies the veracity test because Zani's affidavit sufficiently detailed a prior instance where CRI's information led to the seizure of heroin, resulting in an arrest and conviction, thus providing a "sufficient basis for the magistrate to determine independently that the informant was reliable." Amral, 407 Mass. at 515.
Further, even if "the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause." Upton, 394 Mass. at 375. Here, in addition to meeting both prongs of the Aguilar-Spinelli test, the affidavit recites Zani's corroboration of some of CRI's information. Specifically, Zani observed Rivera driving the white Nissan pickup truck, and another officer observed that the doorbell for apartment 35 was in fact marked 20. In addition, Zani contacted the Department of Motor Vehicles, Boston Edison, and Immigration and Naturalization Services and determined that neither the apartment or vehicle were listed in Rivera's name. In addition, Zani could not locate any driver's license records or criminal records for the two named individuals on the automobile registration and the utility bill, leading him to strongly suspect that these were aliases for Rivera. Zani stated that use of aliases is common in the drug business and weight may be given to the experience of law enforcement officers regarding criminal techniques. Commonwealth v. Taglieri, 378 Mass. 196, 199 (1979).
The Remaining Portion of the Affidavit Established Probable Cause
This court must now determine whether the reference to Rivera's prior search and arrest in the affidavit "fatally infected" the warrant. Hall, 366 Mass. at 795. Defendant argues that by placing the information regarding Rivera's 1993 arrest immediately after Zani's introduction and experience, he deliberately colored the entire presentation of his evidence. Zani, however, did not attempt to hide the fact that Rivera prevailed on his motion in 1993, but plainly indicated in his description of the 1993 arrest and search that Rivera had prevailed on his Motion to Suppress and that that, in 1994, no charges were ever brought, as he was taken into federal custody. Zani's affidavit also extensively detailed the information he received from CRI and further reported Zani's own investigation to corroborate CRI's information. Accordingly, the Court concludes that the reference to the 1993 and 1994 events was not a "critical element" in the issuance of the warrant, in light of the information legally obtained and corroborated in 1999, which provided the magistrate with probable cause to justify the issuance of the warrant. Hall, 366 Mass. at 798.
ORDER
For the reasons stated above, the motion of the defendant to suppress evidence, is DENIED.
_____________________________ Thayer Fremont-Smith Justice of the Superior Court
Dated: October, 1999