Commonwealth v. Matias

789 N.E.2d 165, 58 Mass. App. Ct. 231, 2003 Mass. App. LEXIS 609
CourtMassachusetts Appeals Court
DecidedMay 30, 2003
DocketNo. 01-P-1328
StatusPublished
Cited by3 cases

This text of 789 N.E.2d 165 (Commonwealth v. Matias) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Matias, 789 N.E.2d 165, 58 Mass. App. Ct. 231, 2003 Mass. App. LEXIS 609 (Mass. Ct. App. 2003).

Opinions

Greenberg, J.

This is an interlocutory appeal from the allowance of the defendant’s motion to suppress evidence garnered as a result of three search warrants. Holding that the search of two apartments and a storage facility were unlawful by reason of defective warrants, the motion judge suppressed all of the [232]*232evidence seized by the police from the three locations. In an unpublished decision, a panel of this court originally reversed the motion judge. See Commonwealth v. Matias, 56 Mass. App. Ct. 1112 (2002). Pursuant to Mass.R.A.P. 27, 396 Mass. 1218 (1986), the same panel granted a rehearing, and we now affirm.

Here is the salient procedural background. On October 10, 2000, a clerk-magistrate issued a search warrant authorizing the police to search the defendant’s apartment on the third floor of the building located at 6 Rockdale Street in the city of Worcester. Material recovered in that search led to two warrants being issued for a second-floor apartment at 2 Rockdale Street and a storage unit leased by the defendant in the town of Shrewsbury. Following these searches, the defendant was charged with possession of marijuana with intent to distribute. G. L. c. 94C, § 32C(a).

On June 29, 2001, a nonevidentiary hearing was held in the Superior Court on the defendant’s motion to suppress evidence recovered in these searches, which included a rental agreement for the storage facility, three plastic bags containing marijuana, and $279,020 in cash. The motion judge allowed the defendant’s motion, finding that the search warrants were issued without probable cause because the information supporting the initial warrant, on which the second and third warrants relied, was stale. On August 21, 2001, a single justice of the Supreme Judicial Court allowed the Commonwealth’s request for an interlocutory appeal to this court.

We start with well-recognized principles. To establish probable cause, an affidavit must contain sufficient information to support a disinterested magistrate’s determination that the items related to the criminal activity being investigated reasonably may be expected to be found in the place to be searched at the time the warrant issues. See Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). Under the well-known Aguilar-Spinelli standard,

“if an affidavit is based on information from an unknown 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 [233]*233was (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 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. Spinelli v. United States, [393 U.S. 410, 415 (1969)].’ ”

Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985), quoting from Commonwealth v. Upton, 390 Mass. 562, 566 (1983), rev’d 466 U.S. 727 (1984).

Portions of the affidavit supporting the initial warrant for 6 Rockdale Street (which we have reprinted as an appendix to the opinion) reveal that an unidentified informant had told the affiant, Officer McGee, that he or she had purchased “pounds of marijuana from Efrain [the defendant] for $800.00.” Aside from reciting a phone number that the informant claimed to have called to reach Efrain, no details of this alleged marijuana purchase appear. There is no indication of when, where, or how the informant had purchased the drugs. Officer McGee avers that his conversation with the informant took place “on or about March 27, 2000”; so we infer that the purchase occurred sometime prior to that date (which itself is almost seven months before the warrant issued).

The affidavit also recites information given to Officer McGee by one Sergeant Zona. Another unidentified informant had reported to Zona that the informant had purchased twenty-five pounds of marijuana from the defendant, again without indication of the time, location, or manner of the purchase. The second informant further stated to Sergeant Zona that the defendant was planning to fly to an unspecified location in Arizona to pick up four hundred pounds of marijuana from a trailer in July of 1999. No information appears regarding the accuracy of this statement or how the informant came to know it.

On October 10, 2000, according to his affidavit, Officer McGee collected the trash on the curb outside 6 Rockdale Street and there discovered “a large amount of plastic wrap” that contained marijuana and “numerous large ziplock baggiest,] [234]*234some of which contained [marijuana] . . . .” Also confiscated from the trash, Officer McGee averred, “was paperwork in the name []of [the defendant] Efrain Matias of 6 Rockdale [Street,] 3rd floor, Worcester.”

The motion judge correctly determined that this affidavit failed to provide probable cause to believe that evidence of drug dealing reasonably could be expected to be found at the defendant’s apartment at 6 Rockdale Street on October 10, 2000. Leaving aside the fact that nothing in the two informants’ information points to the 6 Rockdale Street address (or anywhere else) as a location for criminal activity, the information provided by the first informant is undated. For all the affidavit declares, the first informant’s observations could have been months or even years prior to issuance of the warrant. The first informant’s information fails utterly to indicate that drugs reasonably could be expected to be found at 6 Rockdale Street on October 10, 2000. See, e.g., Commonwealth v. Morton, 26 Mass. App. Ct. 949, 950-952 (1988) (total absence of any indication concerning the time when an informant made observations was fatal to warrant application where no other facts appeared in affidavit to support present probable cause). The proper assumption to be made is that an informant’s observations were made on the most remote date described in the affidavit. Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664, 669 (2000). Even if we were to assume the contrary — that the informant’s observation was made immediately prior to the conversation with Officer McGee on March 27, 2000 — that information still would be stale. See Commonwealth v. Javier, 32 Mass. App. Ct. 988, 988 (1992) (“an observation in June, 1990, would generally not support an application for a search warrant presented to a magistrate in November, 1990”). Here, the informant’s conversation with Officer McGee occurred nearly seven months before the warrant was issued.1

The second informant’s information regarding a drug purchase provides no support for the warrant either because it, [235]*235too, is undated, see Commonwealth v. Morton, supra

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Related

Commonwealth v. Ilges
834 N.E.2d 276 (Massachusetts Appeals Court, 2005)
Commonwealth v. Matias
802 N.E.2d 546 (Massachusetts Supreme Judicial Court, 2004)
Commonwealth v. Andrades
17 Mass. L. Rptr. 42 (Massachusetts Superior Court, 2003)

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Bluebook (online)
789 N.E.2d 165, 58 Mass. App. Ct. 231, 2003 Mass. App. LEXIS 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-matias-massappct-2003.