Com. v. Genest

• Decision Date: 07 February 1977
• Citation: 371 Mass. 834,359 N.E.2d 950
• Parties: COMMONWEALTH v. Bruce GENEST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 950

359 N.E.2d 950

371 Mass. 834

COMMONWEALTH

v. Bruce GENEST.

Supreme Judicial Court of Massachusetts, Dukes County.

Argued Dec. 7, 1976.

Decided Feb. 7, 1977.

Walter R. May, Jr., Melrose, for defendant.

W. James O'Neill, Asst. Dist. Atty. Charles A. Morano, Legal Intern, with him), for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

BRAUCHER, Justice.

The defendant was convicted for the unlawful manufacture of amphetamines, and he appeals under G.L. c. 278, §§ 33A--33G. The judge denied his motion to suppress the fruits of a search under a warrant on the ground that he lacked standing to press the motion. We assume, without deciding, that he had standing, but we affirm the conviction on the ground that he did not sustain his burden of showing that the warrant was invalid. Cf. Commonwealth v. Corradino, --- Mass. ---, ---, ^a 332 N.E.2d 907 (1975). We hold that his claim of police fraud in the affidavit in support of the warrant is not properly presented on the record.

The indictment charges that on or about August 8, 1975, the defendant did knowingly or intentionally manufacture, distribute, dispense or possess with intent to manufacture, distribute or dispense a class B controlled substance, amphetamine. At a pretrial hearing on a motion to suppress evidence the prosecutor represented that he would move for trial for manufacturing, not possession. At the hearing the prosecutor offered to stipulate that the defendant was the lessee of the property where the warrant was executed. Counsel for the defendant said he could not so stipulate, but that he would show that the defendant was a visitor there. There was evidence that the defendant was on the premises at the time of the search and was arrested. The judge ruled that the defendant had no standing to ask for suppression of the evidence.

Thereafter the defendant was convicted, and he appealed. We brought the case here on our own motion.

1. Standing. In Commonwealth v. Corradino, --- Mass. ---, ---, ^b 332 N.E.2d 907 (1975), we said that a defendant moving to suppress evidence seized under a search warrant has the burden of showing 'standing' by 'demonstrating a possessory interest in the premises searched or the property seized, see Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), a reasonable expectation of freedom from governmental intrusion, see Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mancusi v. De-forte, 392 U.S. 364, 368--369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), or 'presence' at the scene at the time of search. See Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).' Cf. Commonwealth v. Dirring, 354 Mass. 523, 531--532, 238 N.E.2d 508 (1968). The Commonwealth argues that a possessory interest is sufficient only where possession is an element of the crime, and that possession is not necessary to a charge of manufacturing a controlled substance. It also argues that 'presence' is not enough to confer standing in absence of additional factors, citing Brown v. United States, 411 U.S. 223, 228--229, 93 S.Ct. 1565, 36 L.Ed.2d 308 (1973), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In the Simmons case, the Supreme Court held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pre-trial suppression hearing to establish standing to move to suppress evidence. In the Brown case, that Court suggested that the 'automatic' standing rule of the Jones case might not be warranted, even if possession were an element of the offense, after the Simmons decision removed the danger of coerced self-incrimination. In the Brown case, however, the defendants were not on the premises at the time of the search, and the Supreme Court did not decide the question whether 'presence' still supplies standing.

As in the Corradino case, --- Mass. at ---, ^c 332 N.E.2d 907, we need not decide this question, since we think the warrant was valid.

2. Validity of the warrant. The affidavit in support of the application for the warrant, dated August 8, 1975, the date of the search, was made by a State police officer, and it relied on information supplied by two confidential informants. The information was sufficiently detailed, if it was accurate, to support an inference that it was based on personal observation. But neither the informants, nor their information, standing alone, was shown by the affidavit to be reliable. We therefore consider other independent allegations contained in the affidavit which corroborate their tips. Commonwealth v. Vynorius, --- Mass. ---, ---, --- - ---, ^d 336 N.E.2d 898 (1975), and cases cited.

The affidavit discloses the information received from the informants. One informant gave detailed descriptions of the defendant and two associates and said they had recently completed manufacture of about twelve pounds of a controlled substance, 'methedrine or denzadrine.' He described and located the house where the manufacture took place, gave the name of a person who rented the premises on August 2, 1975, and told of the arrival of the defendant and his two associates on August 4 in a described van bearing a stated number registered to the defendant. They were expected to leave on the evening of August 8, and the van would contain described laboratory apparatus and twelve pounds of the controlled substance. The defendant's brother was the supplier of chemicals and had in his possession five gallons of P2P; he had recently traded one described vehicle for another. On completion of manufacture windows are opened and a fan is put...