Opinion
16-P-820 16-P-821
03-21-2017
COMMONWEALTH v. Jose CRUZ (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
These cases come to us on the Commonwealth's interlocutory appeal from a District Court judge's order allowing the defendants' motions to suppress evidence. The Commonwealth argues that the judge erred in concluding that the unnamed informant's prior history of providing information to the police was not sufficiently reliable. We reverse.
Background . "[W]e adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I ., 450 Mass. 818, 821 (2008).
The judge adopted the facts provided in the memorandum of defendant Cruz.
On June 27, 2015, Detective James Elumba, of the Fall River police department, applied for and obtained a search warrant for 451 Pine Street, Apartment 1E in Fall River (Apartment 1E). The search warrant stated that the defendants occupied the apartment and authorized the police to search for controlled substances, "in particular, crack cocaine, and any [crack cocaine] paraphernalia."
Detective Elumba submitted an affidavit in support of the search warrant application. The affidavit stated that within the past seventy-two hours, Detective Elumba was contacted by a confidential informant, who provided him with information about alleged sales of crack cocaine at Apartment 1E. The affidavit further stated that the informant had, in the past, provided "articulate and verifi[able]" information to the police which "led to no less than [three] arrests and the seizure of crack cocaine and illegally possessed prescription medication" and that "[t]hese three arrests [also] led to convictions in court." The informant also previously "provided specific detailed information about the whereabouts of a person with an active arrest warrant," which "led to an additional arrest."
The affidavit stated that the informant "remain[ed] nameless for fear of reprisal to itself and its family members" and that "[t]he informant is providing information freely, without threats or coercion and while not under arrest."
The informant told Detective Elumba that the informant had been purchasing crack cocaine from a man named "Jose," who also had a "street name of 'Blue.' " The informant stated that Jose sells crack cocaine from Apartment 1E and that Jose lives there with a female named "Sara Williams," who also sells crack cocaine. The affidavit further states that when the informant purchases crack cocaine from Jose, the informant enters through the front door of 451 Pine Street and goes to "the first floor east apartment." During these transactions, the informant gave Jose U.S. currency in exchange for crack cocaine.
Detective Elumba states in the affidavit that he is "familiar with a male named Jose Cruz ... that goes by a street name of 'Blue.' "
The informant described this building as "a wood shingled multi-family dwelling with blue trim." The informant provided information that the number 451 is affixed to the front of the dwelling and that the front entry door is on the Pine Street side of the building. The informant further stated that upon entering the living room of Apartment 1E, there were windows on the left, a couch on the right, and a bedroom located further into the apartment on the right.
Detective Elumba inquired into both individuals and determined that Sarah Williams lived at Apartment 1E, according to the Registry of Motor Vehicles database. He also conducted a surveillance of 451 Pine Street for seventy-two hours and observed two people enter the building, whom he believed to be the defendants. When Detective Elumba showed the informant photographs of the two defendants, the informant confirmed that these were the two individuals that he alleged were selling crack cocaine.
Discussion . The Commonwealth argues, and we agree, that the judge erred in finding that the informant's information did not establish a sufficient showing of veracity. Although we give deference to the judge's factual findings, we "conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott , 440 Mass. 642, 646 (2004) (quotation omitted).
When an affidavit, provided in support of a search warrant, relies on information from an unnamed informant, "the magistrate must be informed 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)." Commonwealth v. Upton , 390 Mass. 562, 566 (1983), citing Aguilar v. Texas , 378 U.S. 108, 114 (1964). "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 , supra , citing Spinelli v. United States , 393 U.S. 410, 415 (1969).
The judge found, and we agree, that the informant satisfied the basis of knowledge prong under the Aguilar -Spinelli test. Thus, our divergence from the judge's decision lies with his application of the veracity prong.
While we question the judge's conclusion that the informant's satisfaction of the basis of knowledge prong was merely "of a weak nature," any questions we may have are not outcome determinative in this decision. See Commonwealth v. Perez-Baez , 410 Mass. 43, 45 (1991) ("[T]he basis of the informant's knowledge is established [where] [h]e was present at the sale and therefore had personal knowledge based upon what he saw"); Commonwealth v. Rodriguez , 49 Mass. App. Ct. 664, 668 (2000).
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"[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit."' Commonwealth v. O'Day , 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella , 39 Mass. App. Ct. 426, 428 (1995). The application "should be considered in an ordinary, commonsense manner without hyper technical analysis." Commonwealth v. Perez-Baez , 410 Mass. 43, 46 (1991) (quotation omitted).
"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." Commonwealth v. Rojas , 403 Mass. 483, 486 (1988). However, despite the judge's concern that "there was no indication as to the date, place, or even court [location]" of the prior cases that the informant had assisted the police with, such detail is not required to satisfy veracity. Instead, our case law states that "[t]he magistrate must be furnished with more detail regarding the circumstances of the prior arrest in order to make a meaningful determination of the informant's veracity." Ibid . See Commonwealth v. Mejia , 411 Mass. 108, 114 (1991) ("[There must be] some meaningful detail ... beyond the fact of past arrest aided by the informant, so that an independent basis exists for the magistrate to find the informant credible").
Here, Detective Elumba's affidavit stated that the informant provided "articulate and verified" information in the past. In particular, the affidavit explained that the informant's past information "led to no less than [three] arrests and the seizure of crack cocaine and illegally possessed prescription medication" and that "[t]hese three arrests [also] led to convictions in court." Thus, these assertions certainly indicated that "the [informant's] prior tip stated that a search of a particular specified location would disclose cocaine or similar substance, and that statement proved to be correct." Perez-Baez , 410 Mass. at 46. See Commonwealth v. Shea , 28 Mass. App. Ct. 28, 31 (1989) ("An inference of trustworthiness of an informant is strengthened where the information he furnished has led, as here, to actual convictions; specificity about the convictions, which would trench more or less on the informant's anonymity, is not demanded"); Commonwealth v. Grady , 33 Mass. App. Ct. 917, 917-918 (1992) (probable cause furnished by affidavit stating informant had led to seizure of drugs from unidentified arrestees).
Moreover, the affidavit stated that the informant had also previously "provided specific detailed information about the whereabouts of a person with an active arrest warrant, [and] [t]hat information led to an additional arrest." See Commonwealth v. Valdez , 402 Mass. 65, 70-71 (1988) (informant provided information as to whereabouts of individual wanted on outstanding warrant).
Therefore, "[t]he accuracy of such information [provided by the informant on prior occasions] ... warranted an inference that the informant was reliable." Perez-Baez , 410 Mass. at 46.
Order allowing motions to suppress reversed .