Com. v. Mejia

• Decision Date: 01 October 1991
• Citation: 579 N.E.2d 156,411 Mass. 108
• Parties: COMMONWEALTH v. Felix Jaime MEJIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 156

579 N.E.2d 156

411 Mass. 108

COMMONWEALTH v. Felix Jaime MEJIA.

Supreme Judicial Court of Massachusetts Essex.

Argued Sept. 4, 1991.

Decided Oct. 1, 1991.

Patrick S. Guarnieri, Lawrence, for defendant.

Robert J. Bender, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

This case presents us with the opportunity to revisit our decision in Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255 (1988), wherein we refined the standard to be applied by a clerk-magistrate when determining whether information provided by a confidential informant in an affidavit in support of a search warrant sufficiently demonstrates the informant's veracity for purposes of determining probable cause.

On June 29, 1988, an Essex County grand jury indicted the defendant, Felix Jaime Mejia, on charges of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b)(2). On November 10, 1988, a judge denied the defendant's pretrial motion to suppress evidence seized by the Lawrence police on June 7, 1988, during execution of a search warrant. The judge found that the affidavit supporting the search warrant sufficiently established the reliability of the informant through recitation of recent instances when the informant's assistance led to the arrest of three persons in Lawrence for narcotics violations. The trial judge subsequently allowed the defendant to submit a supplemental motion to suppress, based on our intervening decision in Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255 (1988). ¹

The judge denied the defendant's supplemental motion to suppress on January 26, 1989, concluding that the information contained in the affidavit allowed for the inference of the confidential informant's veracity for reasons not present in Rojas. Specifically, the judge considered it significant in the present case that the informant reportedly had provided information in the past leading to the arrest of three individuals, all within the same city and the same month, for possession of controlled substances, whereas the informant in Rojas once provided a tip leading to one arrest for a narcotics violation. The defendant's motion for leave to file an interlocutory appeal was denied by a single justice of this court.

On February 21, 1989, a jury convicted Felix Jaime Mejia of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b)(2). The defendant's appeal was entered in the Appeals Court on November 22, 1989. The Appeals Court reversed the judgment, set aside the verdict and vacated the orders denying the defendant's motions to suppress, primarily on the basis of our decision in Commonwealth v. Melendez, 407 Mass. 53, 551 N.E.2d 514 (1990). Commonwealth v. Mejia, 29 Mass.App. Ct. 665, 669, 564 N.E.2d 593 (1991). We allowed the Commonwealth's application for further appellate review. We conclude that the defendant's motion to suppress should have been allowed.

During the week of May 29, 1988, State police Corporal John J. Walsh, a member of the Essex county drug task force, met with a "confidential and reliable informant" (referred to in the affidavit as "CRI"), who was known to Officer Walsh and members of the Lawrence drug task force from prior occasions when the informant reportedly provided them with information leading to the arrests of three individuals in Lawrence for possession of controlled substances.

The informant reported to Officer Walsh that a Hispanic man named "Felix" was dealing substantial amounts of cocaine from the first floor apartment of 14 Mechanic Street in Lawrence and that the informant had been present in the apartment on five occasions during the past week and observed Felix sell cocaine to numerous persons. On or about June 1, 1988, Officer Walsh again met with the informant, who stated that the informant had been in the subject apartment within the past forty-eight hours and observed Felix to be in possession of two ounces of cocaine. The informant further stated that Felix was expecting to receive more cocaine and that Felix offered to sell the informant as much cocaine as the informant wanted, as long as the informant paid cash on delivery.

On June 2, 1988, Officer Walsh applied to a clerk-magistrate for a warrant to search the first floor apartment of 14 Mechanic Street in Lawrence. Officer Walsh presented an affidavit in support of the warrant application which set forth the facts outlined above. The clerk-magistrate granted the search warrant, which was executed on June 7, 1988, by State police officers assigned to the Lawrence drug task force. During the search, the officers seized a substantial amount of cocaine, drug related paraphernalia and several forms of identification bearing the defendant's photograph. The defendant unsuccessfully moved to suppress this evidence at trial.

Article 14 of the Massachusetts Declaration of Rights requires that a search warrant be supported by probable cause. Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). In Upton, we stated that an affidavit based on information obtained from an unidentified source may provide the requisite support for a finding of probable cause to issue a search warrant if it sets forth "(1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was 'credible' or his information 'reliable' (the veracity test)." Id. at 374-375, 476 N.E.2d 548, citing Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). The defendant does not challenge the sufficiency of the affidavit to establish the confidential informant's "basis of knowledge." ² The affidavit in the present case contains sufficient information to support a finding of probable cause, therefore, if it supplies a basis upon which a clerk-magistrate properly could conclude that the unnamed informant is reliable. We hold that it does not contain sufficient information as to the informant's reliability.

In Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255 (1988), we held that an affidavit which recites only that an informant previously provided information leading to an arrest is not sufficient to satisfy the reliability test. Id. at 486, 531 N.E.2d 255. We explained that, in order for such an allegation to be useful to a magistrate in determining the reliability of the informant, it must be supported by "detail regarding the circumstances of the prior arrest," such as facts relating to the informant's participation in the arrest or the accuracy of the informant's information on that prior occasion. Id. These details, as well as the inferences logically to be drawn therefrom, enable the magistrate "to make a meaningful determination of the informant's veracity." Id.

Relying on the Rojas reasoning, we subsequently acknowledged that a statement in an affidavit alleging that an informant provided information in the past which led to the arrest and convictions of persons for narcotic drug violations would not establish the informant's reliability, if the reference to "convictions"--the corroborating detail--was struck from the statement. Commonwealth v. Brzezinski, 405 Mass. 401, 407, 540 N.E.2d 1325 (1989). In Commonwealth v. Melendez, 407 Mass. 53, 551 N.E.2d 514 (1990), we confronted the scenario suggested in Brzezinski and held that the single fact that an informant previously provided information leading to the arrest of...