Commonwealth v. Peterson

813 N.E.2d 870, 61 Mass. App. Ct. 632, 2004 Mass. App. LEXIS 928
CourtMassachusetts Appeals Court
DecidedAugust 18, 2004
DocketNo. 02-P-1437
StatusPublished
Cited by5 cases

This text of 813 N.E.2d 870 (Commonwealth v. Peterson) 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. Peterson, 813 N.E.2d 870, 61 Mass. App. Ct. 632, 2004 Mass. App. LEXIS 928 (Mass. Ct. App. 2004).

Opinion

Perretta, J.

On the morning of December 8, 2002, State police officers searched the defendant’s apartment pursuant to a warrant authorizing the seizure of unlawfully possessed weapons and ammunition. Among the items seized were two shotguns, [633]*633one of which was loaded; a revolver; a rifle fitted with a scope; and assorted boxes of ammunition. Prior to trial on numerous indictments,1 the defendant filed a motion seeking to suppress the evidence seized pursuant to the warrant. The judge allowed the motion on the stated basis that the affidavit in support of the application for the warrant failed to establish that any possession of firearms by the defendant was illegal or that any weapons would be found in his apartment. On the Commonwealth’s appeal pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), our review of the affidavit (see Commonwealth v. Allen, 406 Mass. 575, 578 [1990] [“[i]n reviewing a finding of probable cause, only the facts revealed on the face of the affidavit and any reasonable inferences therefrom may be considered”]) leads us to conclude that the affidavit set out sufficient probable cause to warrant a search of the defendant’s apartment. Consequently, we reverse the order allowing the defendant’s motion to suppress.

1. The affidavit. We recite in detail the facts set out in the affidavit submitted in support of the application for a search warrant. On December 7, 2000, State police Officer Dean A. LeVangie received a telephone call from Officer John Blankenship of the Carter County Sheriff’s Department in Tennessee. Blankenship informed LeVangie that he (Blankenship) had received information that the defendant, a Tennessee fugitive from justice on charges of aggravated assault and rape, was residing at 581 South Avenue in Whitman. Blankenship informed LeVangie that he had received this information from the defendant’s bondsman who, in turn, had acquired his information from the defendant’s mother. He also warned LeVangie that the defendant should be considered dangerous, and advised that the defendant might be armed, and if confronted by law enforcement officials, “would most definitely put up a fight.”

[634]*634Later: that day, State police officers began a surveillance of the area of 581 South Avenue. The surveillance officers saw a man, later identified as the defendant, leave the building located at 581 South Avenue in a truck bearing Tennessee license plates. A chase ensued and ended when the defendant drove his truck into the parking lot of a retail store, circled the lot, and drove his truck into a State police cruiser in an attempt to escape. Unable to evade the police, the defendant, holding a handgun, jumped from his vehicle. He was ultimately apprehended, although not before sustaining a gunshot wound.

In the meantime, LeVangie and Blankenship had another conversation during which Blankenship disclosed that it was the defendant’s brother-in-law, Ralph Gent, a Tennessee law enforcement officer, who had informed Blankenship that the defendant might be armed with a handgun. LeVangie then contacted and spoke directly with Gent, asking him about the defendant’s history of weapons possession. Gent told LeVangie that the defendant always talked about having guns and that according to Gent’s wife and mother-in-law (the defendant’s sister and mother), the defendant was an avid hunter who liked to “dabble in guns” and who “always had guns.”2

Based on this information, the police sought and obtained a warrant to search the defendant’s apartment for unlawfully possessed weapons and ammunition. Numerous firearms and boxes of ammunition were found and seized.

2. Discussion. Before taking up the question whether the affidavit set out facts sufficient to show probable cause to search the defendant’s apartment, we first consider whether, as the defendant claims, we must disregard the hearsay statements of his relatives concerning his possession of guns. In so doing, we begin with the well-established premise that hearsay information may provide a basis for probable cause if it is deemed reliable under the Aguilar-Spinelli standard. See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 414-415 (1969); Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985).

[635]*635Contrary to the defendant’s argument, information is not per se unreliable by reason of the fact that it is based upon hearsay. Rather, hearsay statements set out in an affidavit may be credited so long as each level of hearsay is independently tested and found reliable under the Aguilar-Spinelli standard. See, e.g., Commonwealth v. Stewart, 358 Mass. 747, 751-752 (1971); Commonwealth v. Grzembski, 393 Mass. 516, 521 (1984); Commonwealth v. Harding, 27 Mass. App. Ct. 430, 436 (1989). See generally Smith, Criminal Practice & Procedure § 208, at 149 n.4 (2d ed. 1983) and at 198-200 n.4.15 (Supp. 2004). For the following reasons, we conclude that the hearsay statements of the defendant’s relatives set out in the affidavit are reliable.

In the first instance, Gent told LeVangie that the defendant “always talked about having guns.” See Commonwealth v. Lapine, 410 Mass. 38, 41 (1991) (basis of knowledge shown when informant heard defendant’s conversation); Commonwealth v. Crawford, 410 Mass. 75, 78-79 (1991) (basis of knowledge shown when defendant told informant of plan). As for the statements made by the defendant’s sister and mother, which were related by Gent to LeVangie, we acknowledge that the affidavit did not set out facts reciting the basis of their statements concerning the defendant’s history with weapons. However, we conclude that their relationship with the defendant permits the inference that their knowledge was based upon their interactions with and personal observations of the defendant. Cf. Commonwealth v. Grzembski, 17 Mass. App. Ct. 1029, 1031, S.C., 393 Mass. 516 (1984) (step-brother in position affording opportunity for reliable knowledge).

These statements also have veracity. They were voluntarily made to the police by private citizens, members of the defendant’s family, whose names, addresses, and telephone numbers were known or readily available to the police. See Commonwealth v. Love, 56 Mass. App. Ct. 229, 232 (2002), and authorities therein cited (requirements of reliability governing analysis of anonymous informant’s trustworthiness relaxed when information is provided by named and identified person). There is also the fact that information provided to the police by Gent and the defendant’s mother, concerning the defendant’s Massachusetts address and the likelihood that he possessed a [636]*636handgun, was verified by the police in the course of their surveillance, pursuit, and arrest of the defendant. See Commonwealth v. Harding, 27 Mass. App. Ct. at 436, and cases therein cited.

Concluding that the statements made by the defendant’s family members were reliable, we turn next to the defendant’s claim that the affidavit nonetheless failed to set out facts sufficient to justify a warrant authorizing a search of his apartment.

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Bluebook (online)
813 N.E.2d 870, 61 Mass. App. Ct. 632, 2004 Mass. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-peterson-massappct-2004.