Commonwealth v. Acevedo

7 Mass. L. Rptr. 128
CourtMassachusetts Superior Court
DecidedJune 19, 1997
DocketNo. 961970
StatusPublished

This text of 7 Mass. L. Rptr. 128 (Commonwealth v. Acevedo) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Acevedo, 7 Mass. L. Rptr. 128 (Mass. Ct. App. 1997).

Opinion

Toomey, J.

INTRODUCTION

The defendant, Luis Acevedo, is charged with unlawful possession of cocaine, unlawful possession of heroin with the intent to distribute, unlawful possession of marijuana and unlawful distribution of drugs within 1000 feet of a school. The charges arose from the seizure of heroin, cocaine and marijuana occasioned by the execution of a search warrant on April 30, 1996.

The defendant filed a motion to suppress evidence seized during the execution of the search warrant. The motion alleged that (1) the affidavit in support of the application for a search warrant failed to establish probable cause necessary to permit the issuance of the warrant; (2) there was no justification on the face of the affidavit to support a no-knock police entrance; and (3) the affidavit did not justify a search of any persons present.

The court heard oral argument on the motion to suppress on May 12, 1997. Upon consideration of that argument and the memoranda submitted by counsel, the defendant’s motion to suppress is DENIED.

BACKGROUND THE WARRANT

On April 25, 1996, a search warrant issued directing the police to search the third floor left apartment located at 746 Lakeview Ave. in Lowell, MA. The warrant also authorized the police to conduct their search at any time of the day or evening, to make an unannounced entrance and to search “any person present. . .” The warrant sought the seizure of heroin, a controlled substance as defined in M.G.L. 94C, along with drug-related paraphernalia. The warrant was based upon an affidavit, of the same date, containing information about activity at the location.

[129]*129The factual allegations contained in the affidavit may be summarized as follows:

1. For two weeks prior to the application for the warrant, the police received anonymous calls from “concerned citizens” who reported that a Spanish male was selling drugs from the apartment location in question.

2. Two days prior to the application, the police received information from a “confidential informant” (CI-1) who stated that “it knew of a Spanish male who delivers large amounts of heroin.” CI-1 described the location of the same apartment and supplied the Spanish male’s phone number. The informant had previously supplied information to the police which proved to be reliable.

3. “Within the past week,” another informant (CI-D) met with police and provided information, based on the informant’s personal observations, of several heroin purchases within the past seventy-two hours and within the past two weeks originating from the same location. CI-D asserted that the same telephone number as Cl-1 had recited would trigger a narcotic transaction. CI-D also supplied additional details such as the Spanish male’s name, “Tony,” and the details of the narcotics transactions. The Spanish male would direct the caller to meet him “at the Gulf gas station, by the payphone or the rear parking lot of Tony’s sub shop.” CI-D stated that he saw the Spanish male walk to and from the apartment during the transactions.

4. Within the “past two weeks” police observations corroborated the activity described by the two confidential informants and concerned citizens.

5. During the “past seventy-two hours" police conducted a “controlled buy,” enlisting the aid of CI-D who was searched for drugs and U.S. currency by police both before and after the transaction. Police observed “a [S]panish male walk out the rear door of 746 Lakeview Ave., third floor left apartment,” and witnessed his arrival at a nearby location to conduct the drug transaction in which CI-D received two heat sealed packages of heroin in exchange for U.S. currency.

6. An unannounced entrance was requested of the issuing magistrate because police observations confirmed that the apartment in question is accessible only from the rear of the building and “affords the subjects maximum visibility of approaching police,” that the drug related activity is conducted “at all hours of the day and night,” and that it is located in “an area which has been the scene of numerous arrests for narcotics related offences.”

7. A search of all persons present was requested of the issuing magistrate for safety reasons due to the propensity for “persons involved in illegal narcotics activity” to “possess weapons including firearms.”

THE EXECUTION

On April 30, 1996, Lowell police officers entered the apartment and conducted a search pursuant to the warrant which resulted in the seizure of a quantity of controlled substances, currency and drug-related paraphernalia. Upon entry, the officers observed the defendant and four others in the kitchen area. In plain view were several heat sealed, clear plastic packets containing a white powdery substance which the police believed to be heroin. The defendant grabbed the packets and fled to a nearby bedroom and several packets fell from his person. All five occupants were placed in custody. The police seized seventy-three packets of heroin from the scene. From defendant’s person they seized two hundred and forty dollars in United States currency, a clear plastic bag containing cocaine and two marijuana cigarettes. Other drug paraphernalia items, indicative of drug distribution, were also seized.

DISCUSSION

I. PROBABLE CAUSE FOR SEARCH

The defendant has challenged the sufficiency of the information contained in the affidavit to permit the magistrate to make the probable cause determination necessary to support the issuance of the warrant. Probable cause is comprised of facts and circumstances within the police officer’s knowledge that would warrant a reasonable person in concluding that a crime has been committed or that specific items related to criminal activity will be found at a particular place. Commonwealth v. Spano, 414 Mass. 178, 184 (1993). Probable cause is the product of probabilities, not absolutes. The principal issue in any probable cause analysis is whether the magistrate had a “substantial basis on which to conclude that the articles or activity described [was] probably present or occurring at the place to be searched.” Commonwealth v. Upton, 394 Mass. 363, 370 (1985). The Upton case reflects Massachusetts’ adoption of the Agwlar-Spinellitest requiring an affiant to provide information about the confidential informant which independently satisfies a two prong scrutiny, to wit, (1) the informant’s basis of knowledge and (2) the informant’s reliability or veracity. Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).1

The information contained within the four corners of the affidavit must establish probable cause for the search of the apartment. “Probable cause" sufficient to support the issuance of a search warrant is “something more than mere suspicion, but something less than evidence sufficient to warrant conviction.” Commonwealth v. Baharoian, 25 Mass App. Ct. 35, 37 (1987), review denied 401 Mass. 1103 (1987). The issuing magistrate may rely on the information expressly recited within the affidavit or that which may be reasonably inferred from the affidavit. Id. at 37.

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Bluebook (online)
7 Mass. L. Rptr. 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-acevedo-masssuperct-1997.