Commonwealth v. Reyes

649 N.E.2d 166, 38 Mass. App. Ct. 483, 1995 Mass. App. LEXIS 269
CourtMassachusetts Appeals Court
DecidedMay 5, 1995
DocketNo. 94-P-707
StatusPublished
Cited by3 cases

This text of 649 N.E.2d 166 (Commonwealth v. Reyes) 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. Reyes, 649 N.E.2d 166, 38 Mass. App. Ct. 483, 1995 Mass. App. LEXIS 269 (Mass. Ct. App. 1995).

Opinion

Greenberg, J.

As a result of a search of an apartment, the police seized 125 grams of cocaine, and the defendant was convicted at a jury-waived trial of trafficking under G. L. c. 94C, § 32E(6). The primary ground of appeal is that the search warrant issued upon an affidavit which failed to articulate probable cause. There is a secondary point involving the suppression of a confession.

Captain Paquette of the Holyoke police, on November 24, 1991, received a telephone call from a first-time unidentified [484]*484informer. This person was later described by Sergeant Harold M. Valentine, in an affidavit submitted in support of a search warrant, as a “cooperating member of the community.”1 The caller related that a large quantity of cocaine could be found inside a second-floor apartment located at 5 Grant Street, Holyoke. According to the informant, two days before the call, on November 22, two Colombians arrived at the locus in a white Blazer motor vehicle with a New York registration plate. The car was parked at the rear of the apartment building. The informant stated that he had seen the cocaine, approximately two to three kilograms, in the second-floor apartment. He had also learned that someone would be leaving that day (November 24) for New York in the white Blazer with a large sum of cash derived from the sale of cocaine.

On the strength of this information, the police sent an officer to 5 Grant Street who confirmed that a vehicle matching the informant’s description, registered to Jose Rodriquez of the Bronx, New York, was parked at the rear of the apartment building. A record check indicated that Rodriquez had a criminal record in New York but that his record did not include drug offenses.

From an unnamed member of the “Dominican-Hispanic community,” the police learned that the same motor vehicle was used to transport large quantities of cocaine to Holyoke for sale. Valentine also had “personal knowledge” derived from “information received in the past” that the operator of that vehicle (presumably Jose Rodriquez) had been involved in a large-scale crack cocaine operation at another location in Holyoke. That “information received in the past” was not attributed to any particular source.

From municipal records, Valentine learned that the “renter” of the suspect apartment was the defendant, who was a resident alien from the Dominican Republic. Again, from unnamed sources, Valentine stated that he had “received information in the past” that the defendant was a [485]*485large distributor of cocaine. This conclusion was supported by Valentine’s observation of the defendant on an unspecified date in the past year in another part of Holyoke receiving money from a drug sale.2 Veiled references, apparently developed from “a participant” in that transaction, confirmed Valentine’s conclusion that the defendant was a large-scale drug dealer.

Valentine also related in his affidavit that more than three months earlier, a different Holyoke officer arrested another Dominican male (Diego Mejia) for possession of a large quantity of crack cocaine. The other officer “developed information” that this individual was involved in the distribution of cocaine with Jose Rodriquez, the owner of the white Blazer. Subsequent to Mejia’s arrest, Valentine saw the defendant Reyes attempt to retrieve Mejia’s automobile from the police.

In sum, the search warrant issued was based upon information received from unnamed sources; Valentine’s personal knowledge of the defendant including a prior drug arrest; confirmation that the white Blazer was parked near the defendant’s apartment; and the defendant’s attempt to retrieve another alleged drug dealer’s car from the police.

1. Sufficiency of the affidavit. Where, as here, the determination of probable cause is based on statements made to the police by a confidential informant, the affidavit must contain “adequate evidence of the informant’s veracity and of the basis of the informant’s knowledge.” Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 485 (1994). See Commonwealth v. Upton, 394 Mass. 363, 374-377 (1985). First-hand knowledge of information obtained through personal observation, as demonstrated by the initial informant in this case, satisfies the basis of knowledge prong of the two-part test. See Commonwealth v. Desper, 419 Mass. 163, 166 (1994). The problem here is with the veracity prong as it is evident that the information in the affidavit comes from a first-time [486]*486informant with no track record in the past. See Commonwealth v. Rojas, 403 Mass. 483, 486 (1988); Commonwealth v. Parapar, 404 Mass. 319, 322 (1989). While conceding that the affidavit does not establish the general veracity of this initial informant, the government argues that the specific reliability of the informant’s tip is sufficiently enhanced by other factors to cure the veracity defect. See Commonwealth v. Parapar, supra at 322.

Even though the initial informant did supply some detail in his description of the criminal activity alleged, that tip is not enough, by itself, to satisfy the veracity prong. See Commonwealth v. Rojas, supra at 487 (recognizing that specificity of detail can contribute to reliability but noting that other indicia of reliability are usually present).

Independent police corroboration of a detailed tip from a confidential informant may compensate for deficiencies in the veracity prong. Commonwealth v. Brown, 31 Mass. App. Ct. 574, 576 (1991). In the instant case, however, the corroboration did not go beyond reciting such readily available information as the description of an automobile (the Blazer) parked near the apartment, and ascertaining that it was registered to Jose Rodriquez, a New York resident with a criminal record (which did not include any drug offenses). Compare Commonwealth v. Desper, 419 Mass. at 167-168. Nor did the police undertake any investigation or surveillance, make a controlled purchase, or engage in any related activity that might have cured the deficiency. See Commonwealth v. Kaufman, 381 Mass. 301, 303-304 (1980). Contrast Commonwealth v. Parapar, supra at 323.

We disagree with the government’s analysis that the details furnished by the initial informant were corroborated by information given by the other informers. These other informants were also untested. In addition, there is nothing in the affidavit as to when or how the other informants received their information. See Commonwealth v. Desper, 419 Mass. at 167. They satisfy neither the veracity nor the basis of knowledge prong of the test, and the general sort of information provided did not rise “above the level of a casual rumor [487]*487or a mere reflection of the reputation of the supposed actor.” Commonwealth v. Kaufman, supra at 303.

The first-hand information of the affiant is similarly unavailing. Even if an inference of wrongdoing was warranted because the defendant came to the police station to obtain Mejia’s vehicle after the latter’s arrest on cocaine distribution charges, the information was stale. See Commonwealth v. Zayas, 6 Mass. App. Ct. 931 (1978). That event preceded the making of the affidavit by three months.

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Related

Commonwealth v. Garden
883 N.E.2d 905 (Massachusetts Supreme Judicial Court, 2008)
Commonwealth v. Almeida
15 Mass. L. Rptr. 332 (Massachusetts Superior Court, 2002)
Commonwealth v. Reyes
670 N.E.2d 147 (Massachusetts Supreme Judicial Court, 1996)

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Bluebook (online)
649 N.E.2d 166, 38 Mass. App. Ct. 483, 1995 Mass. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-reyes-massappct-1995.