Com. v. Brzezinski

• Decision Date: 13 July 1989
• Citation: 405 Mass. 401,540 N.E.2d 1325
• Parties: COMMONWEALTH v. Stephen BRZEZINSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1325

540 N.E.2d 1325

405 Mass. 401

COMMONWEALTH v. Stephen BRZEZINSKI.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued March 6, 1989.

Decided July 13, 1989.

Anthony M. Traini, Randolph, for defendant.

Dana A. Curhan, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

The defendant was convicted in a jury-waived trial of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b )(1) (1986 ed.). The Appeals Court (in an unpublished memorandum and order under Appeals Court Rule 1:28) affirmed the conviction. 26 Mass.App.Ct. 1104, 524 N.E.2d 121 (1988). We granted the defendant's application for further appellate review. The defendant claims that the trial judge and motion judge erred in numerous respects. We affirm the conviction.

We shall make reference to the relevant facts in the appropriate sections of the opinion.

1. The motion judge did not err in denying the defendant's motion to dismiss the indictment charging trafficking in cocaine under G.L. c. 94C, § 32E(b )(1). ¹ "Our review of the propriety of any indictment is limited to determining whether the grand jury received sufficient evidence to find probable cause for arrest." Commonwealth v. McGahee, 393 Mass. 743, 746-747, 473 N.E.2d 1077 (1985). Commonwealth v. O'Dell, 392 Mass. 445, 450-451, 466 N.E.2d 828 (1984). In order to meet this standard, the grand jury must be presented with "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense[.]" Commonwealth v. DeCologero, 19 Mass.App.Ct. 956, 957, 473 N.E.2d 219 (1985), quoting Commonwealth v. O'Dell, supra 392 Mass. at 450, 466 N.E.2d 828.

There was sufficient evidence to warrant the grand jury in indicting the defendant for trafficking in cocaine. The arresting officer, Detective Frederick Borges, testified before the grand jury that, on entering the defendant's apartment, pursuant to a search warrant, he observed five people including the defendant sitting around a coffee table on which lay two packets of a substance suspected to be cocaine. The defendant got up and ran to the back of the apartment, entered a closet, came out again, and had to be subdued. In the closet, the police officers found a triple beam scale with a large amount of a substance suspected to be cocaine. Behind a stereo amplifier in the hallway police found a plastic bag, approximately four inches wide and three inches long, about half-filled with a substance suspected to be cocaine. The police also found test tubes, used for testing the quality of cocaine, and tubes used for snorting cocaine. Borges testified that approximately fifty-two grams of cocaine were found in the apartment. Approximately $1,000 in cash was also found in the apartment. The police officers also found telephone and cable television bills addressed to the defendant at that address. In short, there was ample trustworthy information to warrant a reasonable person's conclusion that the defendant had committed the offense of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b )(1).

2. The defendant asserts that the informant who provided information leading to the issuance of a search warrant improperly acted as an agent of the police.

According to an affidavit signed by Detective Borges, and dated November 1, 1984, the informant had entered the defendant's apartment and observed, among other things, the defendant breaking down and packaging cocaine. ² The search warrant which was issued on November 1, and based upon this affidavit, was not executed.

On November 14, 1984, Borges signed an affidavit identical to the previous one except for the following additional paragraph: "On November 1, 1984, the undersigned did obtain a Search Warrant for 37 So. Sixth Street from the Third District Court. This warrant was not executed due to a change in the activities of Stephen Brzezinski and due to the informant not being able to satisfy [the undersigned] that the cocaine was still in the apartment. During the week of November 11, 1984, the informant did state that Stephen Brzezinski did get a new supply of cocaine and that the informant did see known cocaine dealers coming and going from the first floor South side apartment. The informant further stated that during the week of November 11, 1984, the informant was in Stephen Brzezinski's apartment and the informant did observe plastic bags which contained white substances in which Stephen Brzezinski told the informant that it was in fact cocaine."

After the hearing on the defendant's motion to exclude the cocaine and cocaine paraphernalia which were found during the search of the defendant's apartment, the motion judge found that "Detective Borges spoke with the informant sometime prior to November 14, 1984, concerning the activities of Stephen Brzezinski. They discussed the possibility of the informant going back into the apartment to get further information.... On the basis of information obtained during the informant's visit to Brzezinski's apartment sometime prior to November 14, 1984, and on the basis of the informant's statement that he saw known cocaine dealers coming and going from the apartment, Borges filed a new affidavit and obtained a search warrant on November 14, 1984."

The motion judge also found that the informant had not acted as an agent of the police: "In the case at bar, there is no evidence that Detective Borges initially recruited the informant and directed him/her to visit the Brzezinski residence. Apparently the informant initiated contact with Borges and gave him the information that formed the basis of the affidavit for the November 1, 1984, search warrant. The evidence also shows that subsequent to November 1, 1984, the informant told Borges that Brzezinski no longer had cocaine at his premises. Apparently there was a discussion at that time concerning the informant visiting Brzezinski's apartment in the near future and keeping Borges informed as to any changes regarding the presence of cocaine. There is no evidence that Borges directed the informant to return or that he initiated the discussion concerning a return visit. Since Borges did not participate in or direct the informant's actions, no constitutional analysis is triggered."

"An individual's actions will not be attributed to the State if no promises are made for that individual's help and if nothing was offered to or asked of that individual." Commonwealth v. Rancourt, 399 Mass. 269, 274, 503 N.E.2d 960 (1987). In Rancourt, we held that the motion judge did not err in concluding that no agency relationship had been established, despite the officer's having initially received information from an informant who was a fellow inmate of the defendant. The officer had told the informant "that if he obtained any other information and wanted to relay that information, he should telephone or write to the district attorney's office." Id. at 273, 503 N.E.2d 960. We can perceive no greater police involvement in this case than that which occurred in Rancourt.

The motion judge's finding that Detective Borges did not direct the informant to return to the apartment is supported by the record. "The ... judge, not this court, has the function of determining the credibility of testimony." Commonwealth v. Rancourt, supra at 273 n. 4, 503 N.E.2d 960. Further, there is testimony in the record that no consideration was offered or given to the informant. See Commonwealth v. Rodwell, 394 Mass. 694, 698, 477 N.E.2d 385 (1985).

In short, because the contact between Detective Borges and the informant did not reach the level of an agency relationship, the informant's entry into the defendant's apartment was not subject to constitutional limitations. See Herbert v. State, 10 Md.App. 279, 269 A.2d 430 (1970); People v. Sellars, 93 Ill.App.3d 744, 49 Ill.Dec. 187, 417 N.E.2d 877 (1981). ³

3. The defendant contends that the motion judge should have granted his motion to exclude items seized pursuant to the warrant because there was a material falsehood in the affidavit.

The affidavit stated that the anonymous informant "has proven to be relieable [sic ] in the past by supplying information [sic ] in the past which has led to the arrest and convictions of persons for narcotic drug violations." At a pretrial hearing, ⁴ Detective Borges was questioned by defense counsel about the information in the affidavit. At this time, Borges revealed that the informant had not provided information leading to any person's conviction. Defense counsel did not inquire into Borges's state of mind at the time he signed the affidavit. The defendant argued before the motion judge that, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the statement that there were convictions should be struck, and that therefore, under Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), the affidavit failed to establish probable cause.

The motion judge refused to exclude the evidence, holding that the affidavit established probable cause. In his findings, the motion judge stated: "The statement contained in the affidavit that information from the informant in the past had led to arrest and conviction of persons for narcotic violations is not accurate. Detective Borges testified that, in fact, there had been arrests but no convictions." The motion judge held that the two-part "Aguilar- Spinelli " test, see Commonwealth v. Upton, supra--requiring a showing of the informant's "basis of knowledge" and of his or her veracity--was satisfied in this case. The judge held: "As to the second prong, the informant had given the police information which led to the arrest of several people. This is adequate support for a finding that the veracity prong of the two-part test has been met. That the affidavit incorrectly states this information led to both arrests and convictions is not...