Com. v. Douzanis

• Decision Date: 21 August 1981
• Citation: 425 N.E.2d 326,384 Mass. 434
• Parties: COMMONWEALTH v. Nicholas J. DOUZANIS (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 326

425 N.E.2d 326

384 Mass. 434

COMMONWEALTH v. Nicholas J. DOUZANIS (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 6, 1981.

Decided Aug. 21, 1981.

Rosemary Ford, Asst. Dist. Atty., for the Commonwealth.

Brownlow M. Speer, Boston, for Kathy M. Smart.

Kevin J. Reddington, Brockton, for Nicholas J. Douzanis.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

A judge dismissed indictments against the three defendants because the Commonwealth declined to disclose information that would have revealed the identity of a confidential informant on whom a police officer purportedly relied in preparing an affidavit in support of a search warrant. The Commonwealth appeals from the dismissal of those of the indictments which charged the defendants with the commission of certain felonies defined in the Controlled Substances Act (G.L. c. 94C). We conclude that, on the inadequate record before us, the allowance of the motions to dismiss was not warranted, and we remand the cases for further consideration in light of this opinion.

On May 31, 1979, when the motions to dismiss were allowed, the Commonwealth could not properly appeal from the dismissal of indictments charging misdemeanors, and thus the question of the propriety of the dismissal of certain indictments charging the defendants with misdemeanors in violation of the Controlled Substances Act is not before us. ²

At the heart of these appeals is the judge's allowance of a motion, treated as applicable to all defendants, requiring the Commonwealth to disclose (1) whether a confidential informant was used in "any phase of the preparation and presentation of the case" or "in the obtaining of any search warrant relative hereto," (2) the dates, times, and locations of any meetings at which the defendant and the informant were present, and (3) copies of all written or oral statements (presumably of the informant). ³ The disclosure motion was filed in conjunction with motions to suppress evidence seized on January 22, 1979, at 35 Tremont Street, Brockton, pursuant to a search warrant. The Commonwealth declined to provide the information pursuant to the disclosure motion on the ground that providing that information would in effect reveal the identity of the confidential informant. ⁴

There is no question that a judge may in his discretion order discovery of information necessary to the defense of a criminal case (Mass.R.Crim.P. 14(a) (2), 378 Mass. --- (1979)), and that, on failure of the Commonwealth to comply with a lawful discovery order, the judge may impose appropriate sanctions, which may include dismissal of the criminal charge (Mass.R.Crim.P. 14(c)(1), 378 Mass. --- (1979)). The Commonwealth, however, challenges the lawfulness of the allowance of the disclosure motion which underlies the allowance of the motions to dismiss. ⁵

Our consideration of this case is greatly hampered by the absence of a transcript of the hearing on May 11, 1979, at which the disclosure motion was allowed. A diligent attempt to obtain a transcript of that hearing or, alternatively, to reconstruct what transpired at that hearing has failed. Counsel have agreed that "their appellate contentions and arguments could be adequately pursued based on the available record." As will be seen, we do not agree fully with this conclusion of the parties because the record neither clearly supports the entry of the disclosure order, nor clearly demonstrates that the judge exceeded his authority in entering it. We have no findings from the judge which might explain his reason for requiring disclosure of the informant's identity. ⁶ As noted earlier, we shall remand the cases for further consideration of the question whether the indictments should be dismissed. The balance of this opinion will demonstrate why the record is insufficient for us to pass on the propriety of the dismissal of the indictments and will discuss considerations which may be relevant in further proceedings in this case.

It is clear that the defendants were contending that the affidavit in support of the search warrant contained misstatements of fact. In Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the Supreme Court of the United States held that a criminal defendant may challenge the truthfulness of factual statements made in an affidavit supporting the issuance of a search warrant. Under the principles of the Franks opinion, the false statements must be material to the finding of probable cause, and, to entitle the defendant to a hearing on his motion to suppress the evidence seized pursuant to the warrant, the defendant must make a substantial preliminary showing that the affiant made a false statement knowingly and intentionally or with reckless disregard for the truth. Id. We have recently considered the question of a criminal defendant's right to a hearing on the question of false statements allegedly contained in an affidavit in support of a search warrant. COMMONWEALTH V. NINE HUNDRED & NINETY-TWO DOLLARS, --- MASS. ---, 422 N.E.2D 767 (1981)^A. ⁷ We think it is clear that a showing of factual errors in an affidavit with respect to information furnished to the affiant by an informant is, generally, not alone sufficient to require the holding of a Franks-type hearing. See ID. AT ---, 422 N.E.2D 767^B.

The defendants on the record before us did not make an adequate showing, so as to require a hearing, that the affidavit contained a misstatement by the affiant made knowingly and intentionally or with reckless disregard for the truth. We set forth in the margin the significant portions of the affidavit in support of the search warrant. ⁸ A large quantity of drugs and drug-related paraphernalia were seized on January 22, 1979, pursuant to the warrant. The defendant Van Dyke filed an affidavit in support of his motion to suppress. The other defendants filed motions to suppress the evidence obtained pursuant to the warrant or for disclosure of the informant's identity. The Commonwealth does not argue that any of the three defendants lacks standing to challenge the validity of the search. Stripped of its conclusory statements, such as the assertion that the information in the affidavit was based on "utter lies," Van Dyke's affidavit stated that: "January 21, 1979, was Super Bowl Sunday and I was not home but rather at a public lounge in West Bridgewater and have never sold red capsules as alleged." We do not read the assertion that Van Dyke was in a lounge on January 21 as adequately accounting for his activities during all the hours of that day. It does assert that Van Dyke did not sell the red capsules, as alleged. There is no assertion, however, that the police officer who signed the affidavit lied. There may be an implied assertion either that the informant never reported what was attributed to him in the affidavit or that there was no informant at all. Neither this court nor the Supreme Court of the United States has held that a Franks-type hearing must be held on the bare assertion that the affiant fabricated an informant's report or the very existence of an informant. If a naked claim of this type were to be an adequate basis for requiring a hearing on the veracity of an affiant's statements, such a hearing could be required in every case simply by advancing the claim. Something more must be presented in order to require the holding of a Franks-type hearing.

Although the defendants did not make a sufficient showing to require the holding of a Franks-type hearing as a matter of constitutional right, we have acknowledged the right of a trial judge, in his discretion, "to hold a hearing merely on a showing that an affidavit contained misstatements of fact, particularly material misstatements." Commonwealth v. Nine Hundred & Ninety-Two Dollars, supra at --- n.12, ^c 422 N.E.2d 767. The defendants only make the argument that, on Van Dyke's affidavit, a Franks-type hearing was constitutionally compelled, a position we reject. We cannot tell why the judge allowed the disclosure motion. He may have felt constitutionally compelled to hold a Franks-type hearing and viewed disclosure as an appropriate accompaniment. On the other hand, he may have ordered disclosure to aid the defendants in attempting to make the substantial showing necessary constitutionally to require a Franks-type hearing, or perhaps he did so simply to aid in his consideration of whether to exercise his discretionary powers to hold such a hearing. In any event, a judge would not abuse his discretion in deciding to hold (or at least to consider the possibility of holding) a Franks-type hearing where, as here, a defendant under oath on the basis of personal knowledge challenges the truth of material statements attributed to the informant, and he also asserts, as may be the case here, that the informant did not report what was attributed to him in the affidavit or that there could have been no informant at all. We shall assume, perhaps contrary to fact, that the judge determined in his discretion to hold a Franks-type hearing or at least to allow discovery to the defendants in preparation for argument on whether such a hearing should be held.

Although a judge may decide to hold a discretionary Franks-type hearing, a separate question arises as to his right to require disclosure of an informant's identity. The Supreme Court implied in its Franks opinion that no disclosure would be required at least until a substantial preliminary showing were made, and perhaps not even then. ⁹ A restrictive rule requiring a substantial preliminary showing before a judge could order disclosure would in many cases effectively foreclose a defendant from challenging the very existence of the informant and hence the very existence of probable cause.

The question whether a judge may require the government to identify an informant in the course of...