Com. v. Figueroa, 07-P-1863.

• Decision Date: 07 August 2009
• Docket Number: No. 07-P-1863.,07-P-1863.
• Citation: 74 Mass. App. Ct. 784,911 N.E.2d 206
• Parties: COMMONWEALTH v. William FIGUEROA.
• Court: Appeals Court of Massachusetts

911 N.E.2d 206

74 Mass. App. Ct. 784

COMMONWEALTH v. William FIGUEROA.

No. 07-P-1863.

Appeals Court of Massachusetts, Plymouth.

Argued October 7, 2008.

Decided August 7, 2009.

Kenneth I. Seiger for the defendant.

Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, BROWN, & WOLOHOJIAN, JJ.

BROWN, J.

The defendant was convicted by a Superior Court jury of trafficking in cocaine, G.L. c. 94C, § 32E(b), and the same offense within 1,000 feet of a school, G.L. c. 94C, § 32J. On appeal, the defendant claims that (1) the Commonwealth failed to meet its threshold burden of proof with respect to the possession element of both offenses; (2) the defendant's motion to suppress was improperly denied, as the Commonwealth failed to establish the veracity of the confidential informant (informant or CI), whose tip led to the search warrant; (3) the defendant's pretrial motion for disclosure of information regarding the government's confidential informant was improperly denied; and (4) the trial judge erred in permitting the Commonwealth to make a change in its witness list on the day of trial. We affirm.

On August 30, 2005, Brockton police received information from a confidential informant that three Hispanic males were selling cocaine from the third-floor apartment of 53 West Park Street in Brockton. This information matched reports received by police from other residents of 53 West Park Street describing frequent visits to the third-floor apartment by multiple persons, activity consistent—at least in the experience of police—with illegal drug sales. To corroborate these reports, police conducted two controlled purchases of cocaine from the target apartment using CI to complete the transactions.

On the strength of this information, police obtained a search warrant for the third-floor apartment of 53 West Park Street. When they arrived to execute the warrant, the defendant refused to admit the officers, and police were forced to use a battering ram to gain entry. At the time, the defendant was alone inside the apartment.

Inside, police found 103 individually packaged bags of cocaine concealed in a kitchen wastebasket. The total weight of the drugs was 59.06 grams. Police also discovered a large quantity of drug trafficking paraphernalia, including razor blades, cellular telephones, cut plastic bags, inositol (a common cutting agent) and a police scanner. A search of the defendant yielded ten individually wrapped bags of cocaine with a total weight of 5.9 grams. No pipes or other apparatus suggestive of active drug use was found in the apartment. Other pertinent facts are included in our analysis.

1. Constructive possession. The defendant argues that the Commonwealth presented insufficient evidence at trial from which the jury reasonably could have inferred that he constructively possessed the 103 packets of cocaine found in the kitchen wastebasket. Absent such proof, the defendant asserts that he could have been convicted, at most, of simple possession of the smaller quantity of drugs found on his person. In support of his claim, the defendant asserts that he was "merely present" in the apartment at the time the drugs were found; that is to say, that he had no connection to the apartment sufficient to impute ownership of the cocaine found therein to him. We disagree.

At the time of the search, police found the defendant alone inside the apartment. He was seated not more than ten feet away from where a substantial (and valuable) quantity of drugs was concealed. Further, police found mail addressed to the defendant¹ at the apartment, suggesting that the defendant lived there at least some of the time. Commonwealth v. Ortega, 441 Mass. 170, 175, 804 N.E.2d 345 (2004) (discovery of mail addressed to defendant at apartment in which illegal drugs were found significant factor in establishing constructive possession of same). Drug trafficking paraphernalia was in plain view in the apartment, including a police scanner and multiple cellular telephones; the inositol was found in the pantry. We also note that the defendant arguably evinced strong consciousness of guilt by refusing to admit police when they arrived to execute the search warrant. See Commonwealth v. Hunt, 50 Mass.App. Ct. 565, 570-571, 739 N.E.2d 284 (2000). Finally, at the time of the search, the defendant had ten packets of cocaine—the same type of drugs found in the wastebasket—in his pocket. See Commonwealth v. Pratt, 407 Mass. 647, 652, 555 N.E.2d 559 (1990) (fact that drugs found in possession of defendant were "same type" as drugs found in larger cache supports inference of constructive possession of latter).

While mere presence in an area where contraband is found is insufficient to show "the requisite knowledge, power, or intention to exercise control over the [contraband], ... presence, supplemented by other incriminating evidence, `will serve to tip the scale in favor of sufficiency.'" Commonwealth v. Albano, 373 Mass. 132, 134, 365 N.E.2d 808 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir.1976). See Commonwealth v. Pimentel, 73 Mass.App.Ct. 777, 780, 901 N.E.2d 718 (2009), and cases cited. Here, the foregoing factors amount to the requisite "other incriminating evidence." The government's proof, therefore, was not deficient as to constructive possession. Accordingly, the Commonwealth met its threshold burden of proof as to all charges of which the defendant was convicted.

2. Reliability of informant's tip. The defendant contends that the search of the apartment was unlawful, and so his motion to suppress should have been allowed. Specifically, he asserts that the confidential informant, on whom police relied in establishing probable cause, did not meet minimum constitutional standards for veracity²; as a result, all of the information provided by the informant should have been excluded from the probable cause calculus. See Commonwealth v. Upton, 394 Mass. 363, 369-377, 476 N.E.2d 548 (1985) (adopting Aguilar-Spinelli³ standard for purposes of art. 14 of Massachusetts Declaration of Rights). Absent CI's information, the argument runs, the warrant application should have failed.

The Commonwealth, for its part, concedes that the first-time informant relied on here ordinarily would not meet the veracity requirements imposed by art. 14. See Commonwealth v. Zuluaga, 43 Mass. App.Ct. 629, 635, 686 N.E.2d 463 (1997). However, the Commonwealth argues that the two controlled purchases conducted by police render any such defect immaterial. Without question, a properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants. See Commonwealth v. Cruz, 430 Mass. 838, 842 n. 2, 724 N.E.2d 683 (2000); Commonwealth v. Baldasaro, 62 Mass.App.Ct. 925, 926, 818 N.E.2d 189 (2004). The defendant questions whether the controlled purchases here were, in fact, properly monitored.

The ordinary procedure for carrying out a controlled purchase includes, inter alia, police observation of an informant throughout the transaction to ensure that the target of the investigation is the one from whom the drugs are obtained. Here, police saw the informant enter the multi-unit building in which the defendant's apartment was located but were not able to observe directly which apartment unit he entered. It is at least possible, therefore, that the informant obtained the drugs from another unit in the building. The defendant contends that this uncertainty prevents the government from relying on the controlled purchase to buttress the informant's reliability.

In establishing probable cause, however, certainty is not required. Moreover, the standards employed for determining whether the government has met its constitutional burdens must be informed by the practical demands of police investigation. Thus, in Commonwealth v. Warren, 418 Mass. 86, 90, 635 N.E.2d 240 (1994), the Supreme Judicial Court concluded that police were entitled to infer— and a magistrate could rely on such inference in issuing a search warrant—that an informant who entered a three-unit apartment building had made a controlled purchase within, despite the fact that police did not actually see the informant enter the target unit.

The fact that the apartment building in Warren—like the apartment building in the present case—contained only a small number of units was a key factor in concluding that police were entitled to rely on the controlled purchase there in establishing probable cause to search. Unsurprisingly, probability is the touchstone for determining whether probable cause has been established in any particular case. See id. at 90-91, 635 N.E.2d 240, and cases cited. In view of the similarity between the factual settings in Warren and the present case, we conclude that the controlled purchases here adequately established the informant's veracity.

Our conclusion in this regard is bolstered by the fact that the informant's tip in this case was corroborated by at least some independent police investigation. See Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990) ("[i]ndependent police corroboration may make up for deficiencies in [a confidential informant's reliability]"). As the warrant affidavit recites, "[police officers] ... have received several complaints about heavy traffic going to and from the third floor of 53 W. Park St., where some neighbors believed this to be consistent with drug activity." This type of evidence is frequently relied upon to shore up defects in an informant's reliability. Compare Commonwealth v. Soto, 35 Mass.App.Ct. 340, 344, 619 N.E.2d 629 (1993) (police observation of numerous short visits to target apartment by various unnamed persons relied upon in establishing informant's reliability). While the corroborative evidence here might not, standing...