Commonwealth v. Tavarez

3 Mass. L. Rptr. 431
CourtMassachusetts Superior Court
DecidedNovember 2, 1994
DocketNo. 2539394
StatusPublished

This text of 3 Mass. L. Rptr. 431 (Commonwealth v. Tavarez) 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. Tavarez, 3 Mass. L. Rptr. 431 (Mass. Ct. App. 1994).

Opinion

McHugh, J.

Defendant Severeano Tavarez has been charged with trafficking in cocaine. He has brought a series of motions to suppress various items of evidence seized during the course of the investigation. For the following reasons those motions are decided in the following fashion:

I. SEARCH WARRANT (APARTMENTS)

Defendant first moves to suppress the fruits of searches conducted at 7 Liberty Square, Lynn, Massachusetts and 5 Hamilton Avenue, Lynn, Massachusetts pursuant to warrants issued on November 27, 1993.1 Defendant challenges the lawfulness of the search by alleging that the information in the application for the warrants was insufficient to support probable cause for their issuance. More specifically, defendant maintains that the informant information contained in the applicant’s affidavit did not meet the AguHar-Spinelli standards. SeeAguilarv. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).

I disagree. First, the warrants issued by the magistrate were the product of an essentially independent, thorough and carefully-conducted investigation carried out by the State Police after police received the informant’s initial information. Corroboration of informant information that does not meet the AguilarSpinellitest can and often does remedy that deficiency. Commonwealth v. Spano, 414 Mass. 178, 185 (1993); Commonwealth v. Upton, 394 Mass. 363, 374-75 (1985). Moreover, even if the informant’s information were entirely stricken from the affidavit, an ample basis for issuance of the warrants would remain.

Beyond that, however, the information in the affidavit fully complies with the Aguilar-Spinelli standards. Paragraph two of the affidavit supplies information as to the confidential informant’s reliability. It is difficult to imagine a more demonstrably [432]*432reliable informant than one who has the credentials detailed in paragraph two. Indeed, on an almost routine basis, the informant led police to major drug traffickers and the product of their trade. Information provided by the informant thus did not simply lead to arrests. Compare Commonwealth v. Rojas, 403 Mass. 483, 486 (1988). Instead, that information produced arrests plus convictions and seizure of very substantial quantities of cocaine. ‘This distinction is critical.” Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991).

The informant’s knowledge was based on his own dealing with defendant, dealing detailed in paragraph three of the affidavit and corroborated by the entire course of events in which the officers thereafter participated. The information in the affidavit presented a sufficient, and sufficiently fresh, nexus between criminal activity and the locations for which the warrant was obtained. See Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975); Commonwealth v. Distefano, 22 Mass.App.Ct. 535, 540-41 (1986).

II. SEARCH WARRANT (Wiretap)

Defendant next seeks to suppress the fruits of a wiretap authorized pursuant to G.L.c. 276, §§1 et seq. and Commonwealth v. Blood, 400 Mass. 61 (1987). Defendant contends that the warrant authorizing the wiretap was improperly issued and thus that its fruits should be suppressed.2

Here, as earlier, defendant contends that the information supplied by the confidential informant and incorporated in the affidavit used to secure the wiretap warrant did not meet the Aguilar-Spinelli standard. Insofar as the informant’s reliability is concerned, however, paragraph two of the affidavit is identical to paragraph two of the affidavit just canvassed. The informant’s reliability is abundantly established.

The affidavit shows that the informant’s knowledge is again based on his own dealing with defendant. The informant’s observations were amply corroborated by the officers’ observations and participation in negotiations with defendant for a sale of a substantial quantity of cocaine. The warrant sought by and issued to authorities only permitted them to record telephone or face-to-face conversations between the troopers conducting the investigation and the defendant, or those participating with the defendant in the sale of narcotics, or between the confidential informant and the defendant and his cohorts. The factual recitations contained in the first affidavit, considered alone, and in the two affidavits, considered together, clearly provided probable cause for the warrant’s issuance.

Defendant also contends, however, that there was an insufficient showing of “necessity” for recording conversations to justify issuance of the warrant. See G.L.c. 272, §9E(3). In making that assertion, defendant claims that the affidavit failed to set out facts demonstrating “that normal investigative procedures [had] been tried and [had] failed or reasonably appeared unlikely to succeed if tried."® Here the affiant, in paragraph nine of his affidavit, stated that the warrant was necessary in order to maintain an accurate record of the conversations between himself and the confidential informant, on the one hand, and the defendant and his cohorts, on the other, as well as to insure that threats were not made against the confidential informant that would prevent him from testifying at trial if his testimony became necessary. Those recitations provided an adequate showing of necessity, not, perhaps, for a wiretap of the type commonly conceived, but for a far narrower warrant only allowing police to record conversations they or the informant could have recited on the witness stand in any event. One should employ a common-sense approach to the necessity requirement. When that approach is used, necessity for the limited “interception” police sought here is adequately demonstrated. See generally Commonwealth v. Fenderson, 410 Mass. 82, 83-84 (1991).

III. Search Warrant (Commonwealth v. Guaba)

Defendant next contends that the fruits of the search at 5 Hamilton Avenue in Lynn should be suppressed because, although the search was undertaken pursuant to a warrant, the warrant was not at the site of the search until after the search began. Defendant maintains that under the principles articulated in Commonwealth v. Guaba, 417 Mass. 746 (1994), a case decided on May 11, 1994, the resulting search was therefore invalid.

A factual hearing was necessary for a decision on the Guaba issue defendant raised. Based on the testimony presented during the course of the hearing, and the reasonable inferences I have drawn from that testimony, I find that Trooper John C. Henley, a seventeen-year veteran of the Massachusetts State Police now assigned to the Attorney General’s office, went to the apartment at 5 Hamilton Place on the evening of November 23, 1993 at approximately 8:00 p.m., shortly after defendant had been arrested at another location. Trooper Henley’s mission was to gain entry to the apartment and “to secure it” until a search warrant could be procured.4 Trooper Henley was accompanied by three other officers.

When the troopers arrived at 5 Hamilton Place, they went to apartment #2 on the second floor. Trooper Henley knocked on the door and a woman answered. She identified herself as Mrs. Delacruz and said she lived there.

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Related

Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
Hanover Shoe, Inc. v. United Shoe MacHinery Corp.
392 U.S. 481 (Supreme Court, 1968)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Desist v. United States
394 U.S. 244 (Supreme Court, 1969)
Chevron Oil Co. v. Huson
404 U.S. 97 (Supreme Court, 1971)
Commonwealth v. Dyke
474 N.E.2d 172 (Massachusetts Supreme Judicial Court, 1985)
Commonwealth v. Rodriguez
352 N.E.2d 203 (Massachusetts Supreme Judicial Court, 1976)
Commonwealth v. DiStefano
495 N.E.2d 328 (Massachusetts Appeals Court, 1986)
Commonwealth v. Parham
460 N.E.2d 589 (Massachusetts Supreme Judicial Court, 1984)
Commonwealth v. Upton
476 N.E.2d 548 (Massachusetts Supreme Judicial Court, 1985)
Commonwealth v. Blake
604 N.E.2d 1289 (Massachusetts Supreme Judicial Court, 1992)
Commonwealth v. Blood
507 N.E.2d 1029 (Massachusetts Supreme Judicial Court, 1987)
Commonwealth v. Guaba
632 N.E.2d 1217 (Massachusetts Supreme Judicial Court, 1994)
Commonwealth v. Bellamy
461 N.E.2d 1215 (Massachusetts Supreme Judicial Court, 1984)
Commonwealth v. Paszko
461 N.E.2d 222 (Massachusetts Supreme Judicial Court, 1984)
Commonwealth v. Perez-Baez
570 N.E.2d 1026 (Massachusetts Supreme Judicial Court, 1991)
Commonwealth v. Pidge
509 N.E.2d 281 (Massachusetts Supreme Judicial Court, 1987)
Commonwealth v. Rutkowski
550 N.E.2d 362 (Massachusetts Supreme Judicial Court, 1990)
Commonwealth v. Libran
543 N.E.2d 5 (Massachusetts Supreme Judicial Court, 1989)
Commonwealth v. Rojas
531 N.E.2d 255 (Massachusetts Supreme Judicial Court, 1988)

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Bluebook (online)
3 Mass. L. Rptr. 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tavarez-masssuperct-1994.