Com. v. Dion, 90-P-1484

CourtAppeals Court of Massachusetts
Citation31 Mass.App.Ct. 168,575 N.E.2d 759
Docket NumberNo. 90-P-1484,90-P-1484
PartiesCOMMONWEALTH v. Marshall DION.
Decision Date26 September 1991

Conrad J. Bletzer, Jr., Brighton, for defendant.

John F. Coffey, Asst. Dist. Atty., for Com.


WARNER, Chief Judge.

On May 24, 1988, an automobile search pursuant to a warrant resulted in the seizure of over one hundred pounds of marihuana. This led to the defendant's indictment and subsequent conviction in a jury-waived trial in the Superior Court for trafficking in marihuana. G.L. c. 94C, § 32E. Alleging that the affidavit supporting the search warrant contained misrepresentations, the defendant filed a pretrial motion for an evidentiary hearing to challenge the affidavit's veracity. The motion was denied on May 3, 1989, after a hearing. 1 The defendant's motion to suppress the evidence seized during the search, on the ground that the warrant failed to establish probable cause, was also denied after a hearing. 2 On appeal, the defendant challenges the denial of his pretrial motions and further claims, for the first time on appeal, that insufficient evidence was presented at trial to establish his possession of the marihuana seized in the search of the automobile. We affirm.

1. The pretrial motions. The affidavit supporting the search warrant was prepared by Boston police Detectives John Rogers and William Gavin. It stated the following:

On May 5, 1988, the police responded to a reported breaking and entering at 48 Brighton Avenue. There they found a white substance that appeared to be cocaine in various plastic bags, four sets of scales, packages of disposable syringes, three glass vials containing white powder, and identification in the name of Marshall H. Dion, "occupant of the apartment." On that date, an arrest warrant was issued against the defendant for trafficking in cocaine and possession of marihuana with intent to distribute. Subsequent investigation disclosed that the defendant had an "extensive criminal record of narcotic drug violations," including seizures of large quantities of drugs in Texas in 1974 and from a motor vehicle in Arizona in 1982, as well as possession of cocaine and an attempt to bribe a police officer in California in 1986. The information concerning drug violations was obtained from the United States Drug Enforcement Agency. On May 24, 1988, the police were again called to the defendant's apartment concerning a reported break-in. When they arrived, they saw the defendant fleeing the building and running into an alley. They apprehended and arrested him pursuant to the May 5 warrant. While the defendant was being booked, police officers saw him attempting to "secrete on his body" an automobile key. A yellow tag attached to the key described a 1986 white four-door Chrysler Fifth Avenue sedan. Police officers returned to the vicinity of the arrest and saw a white four-door Chrysler Fifth Avenue with Arizona license plates parked and locked on Fordham Road approximately eighty feet from the intersection of Brighton Avenue. Based on this information, the police obtained a warrant to search the automobile for drugs, records, and money obtained from the sale of drugs.

The defendant claims that the affidavit contains misrepresentations which entitled him to an evidentiary hearing concerning the affidavit's veracity. The Fourth Amendment to the United States Constitution entitles a defendant to an evidentiary hearing if he "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause...." Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-2677, 57 L.Ed.2d 667 (1978). Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 422 N.E.2d 767 (1981). 3 Commonwealth v. Honneus, 390 Mass. 136, 142-143, 453 N.E.2d 1053 (1983). "To mandate an evidentiary hearing, the challenger's attack must be more than conclusory.... Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." Franks v. Delaware, supra 438 U.S. at 171, 98 S.Ct. at 2684. If a defendant merely offers his own version of the facts, "[t]his does not rise to the level of a substantial preliminary showing of intentional falsity or reckless disregard for the truth in the affidavit accompanying the warrant." Commonwealth v. Ramos, 402 Mass. 209, 215-216, 521 N.E.2d 1002 (1988).

Two of the defendant's claims--that he did not "secrete" the key to the Chrysler automobile and that he could not have been seen to "run" when he fled his apartment building because an unspecified injury prevented him from running--do not require discussion as they merely pit his version of the facts against that of the affiants.

Two of the defendant's allegations, however, merit attention. First, he states that at the time the affiants alleged that a white substance, believed to be cocaine, had been found in the defendant's apartment, they knew that it had been tested and found negative for cocaine, and they also knew that the criminal charges against the defendant based on its seizure were going to be dismissed. An affidavit signed by Mr. Conrad J. Bletzer, Jr., the defendant's attorney, supported this allegation. The affidavit states that at approximately 3:00 or 4:00 in the afternoon of May 24, 1988 (the date the search warrant was issued), affiant John Rogers told Bletzer "that the powder seized from the defendant's apartment had been analyzed and came back as [containing] 'no narcotic substance.' " An affidavit filed by another attorney, Mr. Dennis Ditelberg, made essentially the same assertions but stated that he had received the information from either John Rogers or Federal Drug Enforcement Agency members. Based on these affidavits, the motion judge determined that the affiants' statement concerning the white substance found in the defendant's apartment appeared to be misleading. He concluded, however, that the drug paraphernalia found there "would weigh heavily" in a magistrate's probable cause determination and that the defendant had not made the showing necessary to require a Franks hearing.

The defendant further alleged that, at the time of the affiants' allegations concerning the defendant's prior record, they knew "that the defendant did not have an extensive criminal record of narcotic drug violations," and they knew that none of the cases mentioned in the affidavit had resulted in a conviction. This claim of misrepresentation came before the motion judge unaccompanied by further substantiation, 4 and he properly determined that the defendant had not made a substantial preliminary showing of reckless or intentional misrepresentation concerning this allegation. 5 At trial, however, Rogers testified that at the time he prepared the affidavit supporting the search warrant, he did not know of any convictions obtained as a result of the narcotics violations alleged in the affidavit.

The general rule is that we "may not use subsequent evidence in deciding the correctness of an earlier ruling." Commonwealth v. Collins, 11 Mass.App.Ct. 126, 132, 414 N.E.2d 1008 (1981), and cases cited. See Commonwealth v. Singer, 29 Mass.App.Ct. 708, 709 n. 1, 564 N.E.2d 1037 (1991). However, because the search warrant application affidavit apparently provided misleading information concerning the white substance found in the defendant's apartment, we assume, without deciding, that "this is a 'case where the record indicates circumstances justifying a departure from the rule,' " Commonwealth v. Collins, supra 11 Mass.App.Ct. at 132, 414 N.E.2d 1008, quoting from Commonwealth v. Howard, 4 Mass.App.Ct. 476, 482, 350 N.E.2d 721 (1976), and we take into account, for purposes of discussion, Rogers' trial testimony. We further assume, without deciding, that a substantial showing has thus been made that the allegations concerning the defendant's prior criminal record constituted a reckless misrepresentation.

The question then becomes whether the two pieces of allegedly misleading and false information, or either one of them, was necessary to the finding of probable cause. Franks v. Delaware, supra 438 U.S. at 155-156, 98 S.Ct. at 2676-2677. In order to establish probable cause, a search warrant affidavit "must contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be found in the place to be searched.... A nexus between the items to be seized and the place to be searched need not be based on direct observation and may be found in the type of crime, the nature of the ... items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [contraband]." (Citations omitted.) Commonwealth v. Pratt, 407 Mass. 647, 661, 555 N.E.2d 559 (1990). After excising the alleged misrepresentation concerning the defendant's criminal record and supplying the omitted information concerning the laboratory findings on the white substance found in the defendant's apartment, see United States v. Parcels of Land, 903 F.2d 36, 47 (1st Cir. 1990) we conclude that sufficient facts remain to support a finding of probable cause that the automobile contained contraband connected to the defendant's drug-related criminal activity. 6

Evidence of the defendant's involvement in illicit narcotics activity included the drug paraphernalia found in his apartment, see Commonwealth v. Malone, 24 Mass.App.Ct. 70, 73, 506 N.E.2d 163 (1987) (informant's "observation of ... white powder, presumably to be used for cutting cocaine"...

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