Com. v. Javier

• Decision Date: 03 August 1992
• Docket Number: No. 91-P-706,91-P-706
• Citation: 594 N.E.2d 556,32 Mass.App.Ct. 988
• Parties: COMMONWEALTH v. Eddy Antonio JAVIER (and nineteen companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 556

594 N.E.2d 556

32 Mass.App.Ct. 988

COMMONWEALTH v.Eddy Antonio JAVIER (and nineteen companion cases

¹

).

No. 91-P-706.

Appeals Court of Massachusetts Bristol.

Argued Feb. 18, 1992.

Decided June 26, 1992.

Further Appellate Review Denied

Aug. 3, 1992.

Jeremy Silverfine, Asst. Dist. Atty., for the Com.

Edward K. Boyer, Fall River, for Ramon Garcia.

Peter J. Thomas, New Bedford, for Eddy Antonio Javier, Antone B. Cruz, Jr., New Bedford, for Jose Ramirez, and Richard Foster, New Bedford, for William Encarnacion, were present but did not argue.

Before DREBEN, KASS and GREENBERG, JJ.

RESCRIPT.

In the process of applying for a search warrant, it is a necessary element that the observations recited in a supporting affidavit be reasonably contemporaneous with the time of the application.Commonwealth v. Atchue, 393 Mass. 343, 349, 471 N.E.2d 91(1984).Commonwealth v. Morton, 26 Mass.App.Ct. 949, 950-951, 526 N.E.2d 1074(1988).So, for example, an observation in June, 1990, would generally not support an application for a search warrant presented to a magistrate in November, 1990.It is a serious defect in an affidavit if there is nothing in it which suggests the time the informer saw the illegal items or incriminating evidence.Rosencranz v. United States, 356 F.2d 310, 315-316(1st Cir.1966).Commonwealth v. Morton, 26 Mass.App.Ct. at 950, 526 N.E.2d 1074.

In the instant case, a judge of the Superior Court allowed a motion to suppress evidence obtained in the course of a search because the affidavit failed to state when the observations relied on in the affidavit were made.The Commonwealth received permission to pursue an interlocutory appeal from a single justice of the Supreme Judicial Court.SeeMass.R.Crim.P. 15(b)(2), 378 Mass. 884(1979).We are of opinion that there were sufficient indications in the affidavit about the time when the critical observations were made.The affidavit recites conversations during the weeks of October 21 and 28, 1990, with Informant "A" about sales "being conducted"at 438 1/2 South Second Street, New Bedford.The present participle bespeaks contemporaneous activity.That, as the affidavit says, the police officers spoke with the informant first during the week of October 14, 1990, and then again during the weeks of October 21 and 28, when the informant stated that he or she had been present as sales of drugs were conducted, suggests reporting about observations made during the latter weeks.The informant is quoted as stating that eight to ten Hispanic males and females "are operating" out of the premises, i.e., the present tense is used.The reasonable inference to be drawn from the statement by the police as to what they observed at the premises is that the surveillance was confirmatory to the reports received from the informant during the weeks of October 21 and 28, 1990.The affidavit...