Commonwealth v. Melendez

551 N.E.2d 514, 407 Mass. 53, 1990 Mass. LEXIS 535

• Court: Massachusetts Supreme Judicial Court
• Decided: March 19, 1990
• Status: Published

Opinions

Liacos, C.J.

A judge in the District Court allowed the defendant’s motion to suppress the fruits of a search conducted by Worcester police on May 7, 1987. The Commonwealth’s application to pursue an interlocutory appeal was allowed. See Mass. R. Crim. P. 15 (a) (2), 378 Mass. 883 (1979). We agree with the motion judge that the affidavit in support of the search warrant in this case failed to establish probable cause.

On May 6, 1987, Detective Daniel F. O’Connor of the Worcester police department’s vice squad applied for a warrant to search apartment 3 at 19 Great Brook Valley Avenue in Worcester. The following are relevant portions of the affidavit in support of the application for the search warrant:

“I, Daniel F. O’Connor being duly sworn, depose and say:

1. I am currently a Detective in the Worcester Police Vice Squad, a position of which I have continuously held for the past four years. Presently I am assigned to the District Attorney’s Drug Task Force located at 332 Main Street, Worcester, Massachusetts. During my career I have been involved in several hundred of narcotic investigations including heroin and cocaine investigations.

“2.1 have information based upon a confidential and reliable informant. For the purpose of the affidavit I will hereinafter refer to this informant as CRI-1. CRI-1 is a person who has given your affiant information in the past which has proved to be accurate and true. CRI-1 has given information that has led to the arrest of persons in the city of Worcester for violations of the controlled substance act. Two such arrests were that of Rafaela Ortiz and Augustine Ortiz on January 16, 1987. Rafael Oritiz [ízc] and Augustine Ortiz were arrested for possession of heroin with intent to distribute. These cases are currently pending in Worcester District Court. For the purpose of this affidavit this informant will hereinafter be referred to as CI-1. Your affiant has met with CI-1 numerous times in the last week and most recently this date. CI-1 advised that he/she has purchased cocaine from 19 Great Brook Valley Ave., apt. #3 Worcester, Massachusetts. CI-1 also stated that he/she and other certain cocaine users would go to this apartment and purchase cocaine. CI-1 further stated that he/she would purchase this cocaine from a Spanish male named Jorge Melendez and also a Spanish female by the name of Nereida Cruz. CI-1 stated that he/ she has purchased cocaine from 19 Great Brook Valley Ave. second floor Apt. #3 within the last 24 hours. The white powder that CI-1 purchased from Jorge was injected into CI-l’s arm was in fact cocaine. CI-1 further stated that Jorge and Nereida are major distributors of cocaine from this apartment.

“On July 2, 1986 Jorge Melendez was arrested by Troopers Jeffrey Stone and Ronald Ford for possession of cocaine with intent to distribute. Melendez later plead guilty to possession of cocaine in Worcester Superior Court and placed on two years probation.

“On this date a check with the Great Brook Valley housing authority as to the residents of 19 Great Brook Valley Ave., Apt. #3 revealed that this apartment is leased to Nerida |>zc] Cruz.”

A magistrate issued a warrant to search the apartment, and on May 7, 1987, the police seized, among other things, plastic bags and paper packets containing white powder believed to be cocaine. The judge granted the defendant’s motion to suppress the evidence seized, ruling that the affidavit failed to meet the requirements of Commonwealth v. Upton, 394 Mass. 363 (1985).

“Under art. 14 of the Massachusetts Declaration of Rights, a magistrate, before issuing a search warrant, must determine that probable cause exists.” Commonwealth v. Rojas, 403 Mass. 483, 485 (1988), citing Commonwealth v. Upton, supra. “In Upton, we held that, under art. 14 . . . the test for determining probable cause in cases involving unnamed informants incorporates the principles developed under Spinelli v. United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108 (1964)” (footnote omitted). Commonwealth v. Saleh, 396 Mass. 406, 409 (1985). “Under the 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 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 v. Texas, supra at 114. 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, supra at 415.’” Commonwealth v. Upton, supra at 374-375.

The affidavit in this case failed to satisfy the veracity test.² The Commonwealth, in arguing that the informant was reliable, relies principally upon certain statements in the affidavit which indicate that he (or she) purchased and used cocaine. The Commonwealth asserts that these remarks constituted statements against penal interest and thus buttressed the informant’s veracity. We disagree.

In order for a statement to be considered by the magistrate to be a statement against penal interest, there must be information in the affidavit which tends to show that the informant would have had a reasonable fear of prosecution at the time that he made the statement. See 1 W.R. LaFave, Search and Seizure § 3.3(c), at 645-646 (2d ed. 1987); People v. Johnson, 66 N.Y.2d 398 (1985); Comment, The Supreme Court, 1970 Term, 85 Harv. L. Rev. 53, 60 (1971); Note, Probable Cause and the First-Time Informer, 43 U. Colo. L. Rev. 357, 367 (1972). “Courts . . . should not utilize the admission against-penal-interest concept in a blunderbuss fashion, but instead should assess in a more careful fashion, preferably upon a full disclosure by the police of all relevant circumstances, what the significance of that admission is in the context of the particular case.” 1 W.R. LaFave, supra3 See People v. Johnson, supra (“Such admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability”). Statements may be more credible if there is a threat of police retaliation for giving false information. See 1 W.R. LaFave, supra at 649-650.

For example, in Commonwealth v. Parapar, 404 Mass. 319 (1989), immediately after being arrested for cocaine trafficking and after the police had made three undercover cocaine purchases, the informant told the police where he had obtained the cocaine. In these circumstances, one could infer that the informant had an actual fear of being prosecuted. Similarly, in Commonwealth v. Vynorius, 369 Mass. 17 (1975), the affiant police officer caught the informant red-handed, his pockets stuffed with marihuana. After the informant confessed his drug purchase, he turned over the contraband to the police officer and gave him the information that the officer used as the basis for the affidavit.

In contrast, the statement in this case did not indicate any circumstances which would cause the informant to have a reasonable fear of prosecution. The statement was unaccompanied by any physical evidence. Indeed, it is likely that the uncorroborated confession, in and of itself, would have been insufficient to prove guilt. Commonwealth v. Leonard, 401 Mass. 470, 472 (1988). The likelihood of prosecution was rather remote. One might infer in a case like this that the informant was a “protected stool pigeon” whose inaccuracies or indiscretions are tolerated on a continuing basis in exchange for information. See 1 W.R. LaFave, supra at 647. See also Comment, The Supreme Court, 1970 Term, 85 Harv. L. Rev., supra at 60. In such a case, he would have little to fear from giving false information. See 1 W.R. LaFave, supra at 647.⁴ See Note, Probable Cause and the First-Time Informer, 43 U. Colo. L. Rev., supra at 367.⁵

The Commonwealth additionally argues that the fact that the defendant had once pleaded guilty to cocaine possession corroborated the informant’s veracity. We disagree. “A defendant’s criminal history may be factored into a probable cause determination as corroboration of an informant’s tip, but only if the history is sufficiently recent and similar to the crime charged to demonstrate that ‘the defendant was not averse’ to committing such a crime.” Commonwealth v. Allen, 406 Mass. 575, 579 (1990), quoting Commonwealth v. Germain, 396 Mass. 413, 418 n.7 (1985). In Germain, the defendant had a record of crimes similar to that of armed robbery, for which he was charged, including theft, possession of a .32 caliber gun, and possession of burglarious tools. We stated that this criminal history showed “conduct from which the inference may be drawn that the defendant was not averse” to committing the crime for which he was under investigation. Id. at 418 n.7. In contrast, in this case, the sole guilty plea for a possession offense did not show conduct which demonstrated the defendant’s proclivity to engage in drug dealing and it should not have been given weight in a probable cause determination.⁶

The fact that the informant gave information on one occasion in the past which led to the arrest of two individuals is insufficient to satisfy the veracity test. Commonwealth v. Rojas, 403 Mass. 483, 486 (1988). The Commonwealth does not argue, and thus we need not consider, whether the fact that the arrestees’ cases were pending at the time of the affidavit furnished an indicium of reliability not present in Rojas. Even assuming that there is more here than in Rojas, we do not think that the affidavit sufficiently established the informant’s veracity. Standing alone, the aforementioned information did not furnish an independent basis for deeming the informant reliable. As we have determined that the other aspects of the affidavit did not comport with the requirements of Upton, we conclude that the motion judge was correct in ruling that the affidavit failed to establish probable cause.

The orders allowing the defendants’ motions to suppress in this case and in the companion case are affirmed.

So ordered.

2 The defendant concedes that the information in the affidavit satisfied the basis of knowledge test.

3 We do not mean to suggest that the standard for determining probable cause should be as strict as that needed for the admission of evidence in a trial. The question is not whether the evidence is admissible at trial, but whether it “meets preliminary requirements sufficient to merit its consideration by any tribunal. One of these prerequisites ... is that the admission of a crime must be, in fact, against the declarant’s interest. Admissions, when found to be against interest, are considered credible because it is assumed that persons do not make statements damaging to themselves unless satisfied they are true. Admissions need not always be against the declarant’s interest, however; and, if they are not, the basis for believing them is destroyed.” (Footnotes omitted). Note, Probable Cause and the First-Time Informer, 43 U. Colo. L. Rev. 357, 367 (1972).

4 For these reasons, according to LaFave, the disclosure of an informant’s identity calls for “particular caution” and should carry “little weight,” even though the identity of the informant is known to the police. 1 W.R. LaFave, supra at 647.

At any rate, a magistrate could not reasonably infer that the affiant knew the actual identity of the informant. The fact that the affiant met with the informant does not imply that he knew his name or address or that he could readily reach the informant had the information proved to be false. Without any indication whether the affiant actually knew the informant’s identity, it is impossible to conclude that the informant had any reasonable fear of prosecution. See Commonwealth v. Allen, 406 Mass. 575 (1990).

5 The Commonwealth’s reliance on Commonwealth v. Nowells, 390 Mass. 621, 626 (1983), is misplaced. Nowells held that it is necessary at the very least, that the statement provide a reliable basis for concluding that the informant committed a crime. It did not hold that any statement which remotely opens the declarant to criminal prosecution is automatically to be considered a statement against penal interest.

In addition, Commonwealth v. Norris, 6 Mass. App. Ct. 761 (1978), like Vynorius and Parapar, involved an informant who gave information following his arrest. Commonwealth v. Kiley, 11 Mass. App. Ct. 939 (1981), is a rescript which does not even recite the facts of the affidavit. Commonwealth v. Atchue, 393 Mass. 343, 347 n.3 (1984), dealt with a named and identified informant. But see Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 837-838 n.4 (1989).

6 The Commonwealth admits that the information in the affidavit regarding the lessee of the apartment cannot be considered to corroborate the informant’s veracity. See Commonwealth v. Bottari, 395 Mass. 777, 784 (1985).