Com. v. Desper

• Decision Date: 14 December 1994
• Citation: 643 N.E.2d 1008,419 Mass. 163
• Parties: COMMONWEALTH v. Stanley DESPER (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1008

643 N.E.2d 1008

419 Mass. 163

COMMONWEALTH v. Stanley DESPER (and a companion case ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 6, 1994.

Decided Dec. 14, 1994.

Susan Underwood, Asst. Dist. Atty., for Com.

Patricia A. Wynn, Boston, for Ricardo Gomes.

Salvatore F. DiMasi, Boston (Frances L. Robinson, with him), for Stanley Desper.

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

GREANEY, Justice.

The Commonwealth challenges an order of a judge of the Superior Court, suppressing evidence seized from apartment no. 3, 91 East Brookline Street in Boston. A single justice of this court allowed the Commonwealth's application for leave to appeal from the suppression order and referred the case to the full court. See Mass.R.Crim.P. 15(b)(2), as amended, 397 Mass. 1225 (1986). We reverse the order allowing the defendants' motions to suppress.

On October 30, 1992, Detective Joseph Driscoll of the Boston police department applied for a warrant to search apartment no. 3 at 91 East Brookline Street. The affidavit filed in support of the warrant application furnished the following information. Driscoll had been a police officer "for a number of years" and "had been involved in hundreds of arrest[s] involving violations of [G.L. c. 94C, the Commonwealth's Controlled Substances Act]." A confidential informant told Driscoll that on numerous occasions in the past month the informant had been present in apartment no. 3, on the second floor of 91 East Brookline Street in Boston, a four-story brick townhouse. On those occasions, the informant had seen two men, one known to the informant as Ricardo Gomes and the other known, variously, as Stanley Desper or William Darrah, selling cocaine. The informant described Gomes as being about forty-five years old, five feet, eight inches in height and weighing around 150 pounds. He described Desper as being sixty-two years old, with gray hair in a ponytail. According to the informant, the cocaine, measured out into plastic bags, was kept in two plastic bowls. On a number of occasions, the informant watched Gomes and Desper give cocaine to individuals in exchange for money. The informant had observed both men carrying guns.

The affidavit further stated that within the week preceding Driscoll's warrant application, an anonymous person placed a telephone call to the drug unit and stated that one Ricardo Gomes and a man known as Stanley were selling drugs from an apartment on the second floor of the house at 91 East Brookline Street in Boston. According to the caller, "Stanley" drove a red car with the Massachusetts registration number 777AGC, and lived at 5 Adamson Street in the Allston section of Boston. The anonymous caller stated that Ricardo always slept with a firearm beside him.

Acting on the information he had received from the informant, Driscoll undertook surveillance of the East Brookline Street townhouse. He observed a number of people enter the building and leave it a short time later. One of those people he knew as Ricardo Gomes, whom Driscoll had arrested in August, 1981, for possession of cocaine with intent to distribute. Driscoll also observed a man in his sixties with a gray ponytail, get out of a red car with registration number 777AGC. He confirmed that the automobile was registered to a person residing at 5 Adamson Street in Allston. Driscoll checked the criminal records of Ricardo Gomes and Stanley Desper. Both men had been convicted for violations of the Controlled Substances Act. Desper had also been arrested for a firearms violation and for assault with intent to murder. His record indicated that he was also known as William Darrah, and that he had given an address of 5 Adamson Street, Allston, when arrested.

Within two weeks prior to the making of the affidavit, Driscoll arranged with the informant "to make a controlled buy of cocaine." Driscoll watched the informant enter the building at 91 East Brookline Street. The informant left the building a short time later and gave the detective a plastic bag containing a white powder, which the informant said he had purchased from Desper. A field test showed the powder to be cocaine. Within forty-eight hours prior to making the affidavit, Driscoll again sent the informant "into 91 East Brookline to make a controlled buy." He again watched the informant enter the building at 91 East Brookline Street and exit a short time later. Again, the informant turned over a plastic bag containing a white powder which field-tested positive for cocaine.

Based on the information supplied in the affidavit, Driscoll requested, and was issued, a no-knock warrant for apartment no. 3, on the second floor of the building at 91 East Brookline Street in Boston. During the ensuing search, the police seized twenty-seven bags of cocaine, drug-related paraphernalia, over $3,000 in cash, and a handgun. The defendants, Stanley Desper (also known as William Darrah) and Ricardo Gomes, were charged with trafficking in cocaine, in violation of G.L. c. 94C, § 31 (1992 ed.), conspiring to traffic in cocaine, also in violation of G.L. c. 94C, § 31, and unlawful possession of a firearm, in violation of G.L. c. 140, § 129C (1992 ed.). As previously noted, a judge of the Superior Court allowed the defendants' motions to suppress.

The legal principles applicable to issuance of a search warrant in the Commonwealth are well established, and were recently repeated in Commonwealth v. Warren, 418 Mass. 86, 88-89, 635 N.E.2d 240 (1994). When an application for a warrant depends in significant part on information provided by a confidential informant, the affidavit must "apprise the magistrate of (1) some of the underlying circumstances from which the informant concluded that contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable (the veracity test)." Commonwealth v. Warren, supra at 88, 635 N.E.2d 240, citing Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985), and Commonwealth v. Parapar, 404 Mass. 319, 321, 534 N.E.2d 1167 (1989). Each of these tests must be satisfied independently, but "police corroboration of an informant's detailed tip can compensate for deficiencies in either or both prongs of the standard, and thus satisfy the [Massachusetts Declaration of Rights] art. 14 probable cause requirement." Commonwealth v. Warren, supra at 89, 635 N.E.2d 240.

The defendants concede that the basis of knowledge test is satisfied. Driscoll's informant personally observed the defendants carrying firearms and selling drugs in the apartment at 91 East Brookline Street. See id. See also Commonwealth v. Perez-Baez, 410 Mass. 43, 45, 570 N.E.2d 1026 (1991); Commonwealth v. Carrasco, 405 Mass. 316, 321, 540 N.E.2d 173 (1989).

Next we examine whether the veracity test is satisfied. The affidavit did not contain the usual information from which it reasonably could be inferred that the informant was credible. It did not state, for example, that the informant had supplied information to the police in the past which had led to arrests, seizures of contraband, pending cases or convictions. See, e.g., Commonwealth v. Mejia, 411 Mass. 108, 111-114, 579 N.E.2d 156 (1991); Commonwealth v. Perez-Baez, supra, 410 Mass. at 45-46, 570 N.E.2d 1026.

The anonymous telephone call to the police station did not corroborate the informant's statements in the "significant detailed respects" required when an anonymous tip is relied on for this purpose. See Commonwealth v. Nowells, 390 Mass. 621, 624-627, 458 N.E.2d 1186 (1983). There is no assertion in the affidavit that the anonymous caller had been in the apartment. Thus, the source of his information may have been hearsay. To the extent that it merits consideration, see id. at 627, 458 N.E.2d 1186, the telephone call failed to provide the sort of idiosyncratic detail that would effectively corroborate and lend credibility to the informant's assertions. See Commonwealth v. Santana, 411 Mass. 661, 665, 583 N.E.2d 1288 (1992).

Driscoll's independent investigation yielded some additional information competent to bolster the reliability of the informant's tip. However, in the absence of further detail as to the number of visitors and the length of their visits, the statement that an unspecified "number of persons" were observed entering a four-story, multi-apartment building and leaving it "a short time later" does not tend to prove that a person or persons in the building are engaged in criminal behavior. See Commonwealth v. Byfield, 413 Mass. 426, 430 n. 7, 597 N.E.2d 421 (1992). Contrast Commonwealth v. Valdez, 402 Mass. 65, 71 & n. 4, 521 N.E.2d 381 (1988) (police observation of "known drug users entering [building] and remaining for three to five minute periods" bolstered informant's credibility). The defendants' criminal histories, as recited by Driscoll, consisted of several arrests (outcome uncertain) and convictions of uncertain vintage, and could "not be given weight in a probable cause determination." Commonwealth v. Melendez, 407 Mass. 53, 59, 551 N.E.2d 514 (1990). See Commonwealth v. Allen, 406 Mass. 575, 579, 549 N.E.2d 430 (1990) (only if defendant's criminal history is recent and similar to crime charged may it be factored into probable cause determination as corroboration of informant's veracity). Driscoll's investigation confirmed the defendants' identities and their presence at the 91 East Brookline Street address, but "verified no predictive details that were not easily obtainable by an uninformed bystander." Commonwealth v. Lyons, 409 Mass. 16, 21, 564 N.E.2d 390 (1990).

At issue is whether the statement, that the informant made two "controlled buys" from the defendants, can compensate for the affidavit's otherwise deficient showing on the point of the informant's veracity. "A controlled purchase of...