Com. v. Alvarez

• Citation: 661 N.E.2d 1293,422 Mass. 198
• Parties: COMMONWEALTH v. David ALVAREZ (and seventeen companion cases 1 ).
• Decision Date: 28 February 1996
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1293

661 N.E.2d 1293

422 Mass. 198

COMMONWEALTH v. David ALVAREZ (and seventeen companion cases ¹).

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Sept. 12, 1995.

Decided Feb. 28, 1996.

Roger A. Cox, Boston (Deidre Lee Thurber, Falmouth, Paul F. Murphy, Quincy, Richard Passalacqua, Boston, and Timothy M. Farris, Springfield, with him) for David Alvarez & others.

Eric S. Brandt, Committee for Public Counsel Services, Boston, for Mark Ferrait.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, LYNCH, and O'CONNOR, JJ.

LYNCH, Justice.

All six defendants were convicted of cocaine trafficking in violation of G.L. c. 94C, § 32E(b ) (1994 ed.), and possession of cocaine with intent to distribute in violation of G.L. c. 94C, § 32A (1994 ed.); ² all filed timely notices of appeal. They assert, inter alia, that a judge in the Superior Court erred in denying their motions to suppress evidence seized during the execution of a search warrant, arguing that the warrant was not supported by probable cause. ³ We granted the defendants' application for direct appellate review and now affirm.

We summarize the facts as follows: On August 15, 1991, Lieutenant Alan G. Fletcher of the Holyoke police department applied for a no-knock warrant to search the second floor, right-side apartment at 828 Hampden Street in Holyoke. Captain Richard Page had applied for a search warrant for the third floor, left-side apartment at 487 Pleasant Street in Holyoke. The information in the affidavits in support of these applications was obtained from a fifteen year old juvenile (juvenile), and Marilyn Reyes. Both the juvenile and Reyes had been arrested the day before for cocaine trafficking.

During police questioning, the juvenile and Reyes stated that they had been "dealing drugs" for David Soto, who lived at the 487 Pleasant Street address. According to the search warrant affidavit, the juvenile informed the police that Ramos, whom he identified as "Pete," was "the big dealer." He stated that Pete lived on the second floor, right-side apartment, at 828 Hampden Street, which was rented by Pizzaro. The juvenile stated that he had received crack cocaine at 828 Hampden Street about one and one-half weeks earlier. He stated that he had also bought crack cocaine from the same apartment on two other occasions. Furthermore, when arrested, the juvenile was in possession of 648 vials of crack cocaine, which he told police came from the 828 Hampden Street apartment.

The juvenile said that cocaine from 828 Hampden Street was packaged in plastic vials with black caps wrapped in tape. He also informed the police that Ramos and Soto had recently engaged in a gun battle involving semi-automatic weapons in Chicopee. ⁴ Based on the above information, Lt. Fletcher requested a no-knock warrant for 828 Hampden Street. The search warrants for both addresses issued at approximately 10:30 A.M. on August 15, 1991.

Both 828 Hampden Street and 487 Pleasant Street are in fact part of the same large, four-story, L-shaped building. Hampden Street and Pleasant Street intersect, and the building is on the corner. Also part of this L-shaped building are 475, 477, 479, 481, 483, 485, and 489 Pleasant Street. There is a back porch on each floor which runs the entire length of the building and connects all of the apartments on that floor.

After arriving at the search locations, Lt. Fletcher received a radio dispatch from Officer Brian Kelly at police headquarters, asking to see Lt. Fletcher immediately. Lt. Fletcher then returned to headquarters and Officer Kelly informed him that, shortly after 10:30 A.M., an anonymous female informant, speaking in a somewhat garbled, quiet voice, called to report that the drugs had been moved to the second floor, right-side apartment, at 475 Pleasant Street. This apartment was about thirty feet from 828 Hampden Street via the back porch.

While receiving this call, Officer Kelly was also juggling multiple radio channels and emergency calls. Although the caller referred to her "son," Officer Kelly's impression was that the informant was relaying first-hand information. The informant called again and told Officer Kelly: "Make sure you don't get in the wrong apartment," and confirmed twice that the address was 475 Pleasant Street, second floor, right side.

On receiving this information, Lt. Fletcher contacted a State trooper at the raid site and told him that the drugs had been moved to the Pleasant Street apartment. During the telephone call to the raid site, Lt. Fletcher shouted questions at Officer Kelly to verify information. Officer Kelly answered Lt. Fletcher's questions while trying to respond to other telephone calls. Based on these answers, Lt. Fletcher informed the State trooper that an informant had seen the drugs being moved just before the search parties arrived. Lt. Fletcher then instructed the State trooper to have the Pleasant Street apartment secured pending his arrival.

Meanwhile, the search of the Hampden Street apartment had been proceeding. Only six vials of cocaine were found there. Based on the juvenile's information, Lt. Fletcher had expected to find more cocaine. The search did reveal indicia of a large-scale drug operation, including four "beepers," several pagers, and a ledger indicating an approximately $30,000 a week drug business. Also found during the search was a cable television bill addressed to Rebecca Martinez at 475 Pleasant Street.

During the search of 828 Hampden Street, police arrested the six defendants. Four of them were found in the living room. Ramos and Pizzaro were found in a back bedroom. On the table next to the bed was a key ring with several keys.

While police searched the apartment, Officer Hercules Robinson overheard one male defendant remark to another in Spanish: "What do they think, I'm crazy to keep the stuff here?" Officer Robinson told the other officers about the statement, attributing it to Ramos. This information was relayed to Lt. Fletcher.

Lt. Fletcher thereafter ordered members of the raid team to try the keys found in the Hampden Street apartment on certain nearby automobiles, and on the lock of the 475 Pleasant Street apartment. One of the keys from Ramos's bedroom opened the door to an automobile that the police had observed Ramos driving one week earlier. Another of the keys fit the lock to the front door of the 475 Pleasant Street apartment.

The police unlocked and opened the door of the 475 Pleasant Street apartment with one of the keys they had found. On gaining entry, the officers searched the apartment to see whether anyone was inside. Finding no one, the police locked the door again and secured the front and back entrances.

Lt. Fletcher returned to police headquarters and prepared a search warrant application for the 475 Pleasant Street apartment. While preparing the affidavit, Lt. Fletcher attempted to verify second-hand information. He asked Officer Robinson twice for the identity of the defendant who had stated that he did not keep the "stuff" in 828 Hampden Street. Both times, Officer Robinson said that it was Ramos.

The affidavit related that an anonymous female informant reported "that the drugs we were looking for were in the next door apartment at 475 Pleasant street, second floor right side ... [and] that the drugs we were looking for were moved to this apartment ... within ten minutes of our arrival."

The affidavit also contained the statement attributed to Ramos: "What do they think, I'm stupid to keep drugs inside this apartment." Lt. Fletcher included the juvenile's information in the affidavit, as well as the fact that police discovered signs of a large-scale drug operation at the Hampden Street apartment, but only found six vials of crack cocaine, which were in plastic vials with black caps. The affidavit also mentioned that a key from a key ring found at 828 Hampden Street and containing Ramos's automobile key opened the door of 475 Pleasant Street.

A search warrant for the 475 Pleasant Street apartment was issued at approximately 1:30 P.M. by the same magistrate who issued the warrants for the other apartments. When the police searched 475 Pleasant Street, they discovered the following in a padlocked closet in a bedroom: 4,108 vials of crack cocaine; $6,557 in cash; a sawed-off shotgun; eight other firearms; a hamper full of ammunition; a 200-gram scale; handcuffs; and a large quantity of drug packaging material, including empty vials and black caps.

At trial, David Soto testified as the Commonwealth's witness. He described a drug distribution operation in which Ramos was the leader and Soto was the second in command. According to Soto, Pizzaro was Ramos's girl friend and sometimes made trips to New York to pick up shipments of cocaine.

The Commonwealth introduced in evidence, without objection, the personal diary of Pizzaro. The diary contained entries about her trips to New York. The Commonwealth also introduced, without objection, testimony of a police officer who had searched a safe deposit box rented by Pizzaro.

1. Probable cause for issuance of a warrant to search 828 Hampden Street. Pizzaro alone argues that there was insufficient probable cause for the issuance of a warrant to search 828 Hampden Street. In evaluating a search warrant based on information provided by an anonymous informant, we follow the two-pronged test set out in Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588-89, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). See Commonwealth v. Welch, 420 Mass. 646, 650, 651 N.E.2d 392 (1995); Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985). We require that such an affidavit "must provide the magistrate with facts showing some of the underlying circumstances leading to the informant's knowledge, as well as his reliability.... If the informant's tip...