Com. v. Amral

• Decision Date: 29 May 1990
• Citation: 407 Mass. 511,554 N.E.2d 1189
• Parties: COMMONWEALTH v. William J. AMRAL (and four companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1189

554 N.E.2d 1189

407 Mass. 511

COMMONWEALTH v. William J. AMRAL (and four companion cases ¹).

Supreme Judicial Court of Massachusetts Worcester.

Argued Jan. 9, 1990.

Decided May 29, 1990.

Claudia R. Sullivan, Asst. Dist. Atty., for the Commonwealth.

John J. Curley, III, for Gordon I. Salisbury.

Robert M. Bailey, for William J. Amral & Edward W. McIntyre, for Stephen G. Iwaniec, joined in a brief.

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

NOLAN, Justice.

On February 5, 1987, the defendants, William J. Amral, Stephen G. Iwaniec, and Gordon L. Salisbury, were indicted for unlawful possession of a controlled substance. Amral and Salisbury were additionally charged with unlawful possession of hypodermic instruments. The indictments arose from a search conducted by officers of the Clinton police department pursuant to a search warrant on October 30, 1986. Each defendant moved to suppress the evidence seized during the search on the basis that there was no probable cause for the search warrant. The motion judge initially denied the motions to suppress concluding that the "[i]nformation [in the affidavit] came from a 'reliable informant' who described having seen drugs at the place where the search was made." ² In addition to filing a motion to suppress, Salisbury filed a motion to require the Commonwealth to disclose information concerning the informant. In support of this motion, Salisbury filed an affidavit in which he identified the person whom he believed to be the informant. Salisbury asserted in his affidavit that to the best of his information, knowledge and belief, this person never previously had provided law enforcement authorities with any information leading to the arrest or conviction of any person for any drug-related criminal activity. ³

At a hearing on the motion to require disclosure, the judge refused to order the Commonwealth to reveal the informant's name. He did, however, order the Commonwealth to provide some additional information concerning the arrests or convictions in which the informant's tips had proved helpful, such as the date, the name of the court where the complaint or indictment was issued or the name of the defendant in the earlier cases. After consulting with those police involved who were present in the courtroom when the motion was argued, the assistant district attorney refused to supply any additional information on the ground that, since all the parties knew each other, disclosing that information would be tantamount to revealing the name of the informant. The judge then revoked his earlier rulings which denied the defendants' motions to suppress and allowed those motions. In so doing, the judge found that the defendants made a "substantial preliminary showing that the information relative to the informant having provided reliable information in the past may well have been misstated and this would be a material misstatement." The Commonwealth then filed an application for an interlocutory appeal in this court which was granted by a single justice. ⁴ The Commonwealth submits that the judge acted improperly first by ordering the Commonwealth to disclose information concerning the informant and then by allowing the defendants' motions to suppress when the Commonwealth refused to disclose that information. The defendants assert that the judge properly allowed the motions to suppress because the affidavit in support of the search warrant (1) lacked probable cause on its face, and (2) contained a material misstatement of fact which, when excised from the affidavit, proved fatal to the establishment of probable cause.

1. The affidavit on its face. The judge allowed the motions to suppress on the basis of his finding that the affidavit in support of the search warrant may well have contained a misstatement of fact which was necessary to a finding of probable cause. The judge did not find the affidavit insufficient on its face. ⁵ If, however, the affidavit was insufficient on its face to provide probable cause for the warrant to issue, the judge properly suppressed the evidence. We, therefore, address the sufficiency of the affidavit on its face. We hold that the affidavit was sufficient on its face to provide probable cause for the warrant to issue.

"For an informant's information to pass muster under art. 14 of the Declaration of Rights of the Massachusetts Constitution, the affidavit must apprise the magistrate of some facts and circumstances showing both (1) the basis for the informant's tip (basis test), and (2) the credibility of the informant or the reliability of his information (veracity test)." Commonwealth v. Ramos, 402 Mass. 209, 212, 521 N.E.2d 1002 (1988). Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985). The informant's observation of the contraband in the place to be searched satisfies the basis of knowledge test. See Commonwealth v. Ramos, supra 402 Mass. at 214, 521 N.E.2d 1002; Commonwealth v. Borges, 395 Mass. 788, 795, 482 N.E.2d 314 (1985). We, therefore, need only discuss the informant's credibility or the reliability of his information.

A warrant affidavit should inform the magistrate of some of the underlying circumstances from which the affiant may conclude that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). In this case, the warrant affidavit informed the magistrate that the informant had "given information in the past leading to the arrest and conviction of subjects for similar offenses." In Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988), we held that "[a] naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish an informant's veracity." In this case, the warrant affidavit informed the magistrate that the informant had "given information in the past leading to the arrest and conviction of subjects for similar offenses" (emphasis added). This factual assertion provided sufficient basis for the magistrate to determine independently that the informant was reliable. See Commonwealth v. Brzezinski, 405 Mass. 401, 406-407, 540 N.E.2d 1325 (1989) (stating that, if reference to convictions were struck, affidavit would fail to establish probable cause); Commonwealth v. Ramos, 402 Mass. 209, 213, 521 N.E.2d 1002 (1988) (elaborate specificity not required to show probable cause). The affidavit was sufficient on its face.

2. The truthfulness of the search warrant affidavit. The Commonwealth contends that the judge acted improperly (1) when he ordered the Commonwealth to disclose information concerning the informant, and (2) when he allowed the defendants' motions to suppress when the Commonwealth refused to disclose that information. We vacate the order to disclose and the suppression orders and remand the case for proceedings not inconsistent with this opinion.

We are faced with the question of how to balance the public interest in protecting and encouraging informants against the public interest in deterring police misconduct. In conducting this balance, we are mindful that, although a criminal defendant may in certain limited circumstances have a constitutional right to a hearing on the veracity of statements made in a warrant affidavit, see Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), he or she has no constitutional right to suppression. Suppression is a remedy designed by the courts, as a matter of policy, to deter future police misconduct. Franks v. Delaware, 438 U.S. 154, 165-166, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). United States v. Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974). The informer privilege, with its roots in the English common law, see In re United States, 565 F.2d 19, 22 (2d Cir.1977), cert. denied sub nom. Bell v. Socialist Workers Party, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978); The Use of In Camera Hearings in Ruling on the Informer Privilege, 8 U.Mich.J.L.Ref. 151, 153 (1974), is long standing in this Commonwealth. See Worthington v. Scribner, 109 Mass. 487, 488 (1872). This privilege serves a substantial, worthwhile purpose in assisting police in obtaining evidence of criminal activity. The basis for the privilege is the proposition that an informer may well suffer some sort of reprisal if his or her identity is disclosed. For examples of cases where informants may have suffered reprisal, see United States v. Toombs, 497 F.2d 88, 90 n. 1 (5th Cir.1974); Swanner v. United States, 406 F.2d 716, 717 (5th Cir.1969); Schuster v. City of New York, 5 N.Y.2d 75, 79, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958).

The United States Supreme Court has stated that: "A genuine privilege, on ... fundamental principle ..., must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity--to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship. That the government has this privilege is well established and its soundness...