Com. v. Mendez, 91-P-973
Decision Date | 28 February 1992 |
Docket Number | No. 91-P-973,91-P-973 |
Citation | 32 Mass.App.Ct. 928,587 N.E.2d 248 |
Parties | COMMONWEALTH v. Adelaida MENDEZ (and twenty-nine companion cases 1 ). |
Court | Appeals Court of Massachusetts |
Cynthia A. Vincent, Asst. Dist. Atty., for the Com.
Miriam H. Babin, New Bedford (Robert M. Xifaras with her), for defendants.
Before ARMSTRONG, SMITH and GREENBERG, JJ.
RESCRIPT.
On October 16, 1989, Detective Albert Pacheco of the New Bedford police department applied for and received "no knock" search warrants for apartments # 2 and # 9 located at 167 Acushnet Avenue, New Bedford. The "no knock" search warrant for apartment # 9 was executed on October 19, 1989, and resulted in the seizure of over twenty-eight grams of cocaine, over $800 in United States currency, scales, and other drug paraphernalia. The defendants were arrested and subsequently indicted for various violations of G.L. c. 94C.
Prior to trial, the defendants filed a motion to suppress all evidence obtained by the police as a result of the search of apartment # 9 at 167 Acushnet Avenue. They claimed that there was neither probable cause to issue the search warrant, nor sufficient evidence in the affidavit to justify the issuance of a "no-knock" warrant. After a hearing, a Superior Court judge allowed the defendants' motion. The Commonwealth's application for an interlocutory appeal was allowed by a Justice of the Supreme Judicial Court and the Commonwealth's appeal was heard by a panel of this court. We conclude that the motion judge improperly allowed the defendants' suppression motions.
"Article 14 of the Massachusetts Declaration of Rights requires that a search warrant be supported by probable cause." Commonwealth v. Mejia, 411 Mass. 108, 111, 579 N.E.2d 156 (1991). When the Commonwealth relies on an affidavit based on information obtained from a confidential informant, it must demonstrate "(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)." Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985), citing Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1964). Here, the motion judge found that the basis of knowledge test was satisfied but that the Commonwealth failed to satisfy the veracity test.
The veracity test "may be satisfied by demonstrating that the informant has provided information in the past which has proved to be accurate." Commonwealth v. Perez-Baez, 410 Mass. 43, 45, 570 N.E.2d 1026 (1991). Here, Detective Pacheco submitted an affidavit which relied upon information provided by a confidential informant. Pacheco stated in the affidavit that
The judge ruled that "the affiant failed to furnish any details about the role played by [the] informant in [Pettie's] arrest, nor did Pacheco supply any 'meaningful information' beyond the mere fact of Pettie's arrest." Therefore, the judge, relying on Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988), ruled that the veracity test had not been satisfied.
In Rojas, the court held that Id. at 486, 531 N.E.2d 255. See also Commonwealth v. Mejia, 29 Mass.App.Ct. 665, 668, 564 N.E.2d 593, S.C., 411 Mass. 108, 579 N.E.2d 156 (1991) (). It has been held that the veracity test was satisfied where the informant gave past information which led to the arrest of a person for possession of cocaine and the attendant seizure of cocaine. Commonwealth v. Perez-Baez, 410 Mass. at 46, 570 N.E.2d 1026. 2 Contrast Commonwealth v. Santana, 411 Mass. 661, 663-665, 583 N.E.2d 1288 (1992) ( ).
The Supreme Judicial Court has Commonwealth v. Smith, 370 Mass. 335, 342-343, 348 N.E.2d 101 (1976), quoting from Commonwealth v. Perada, 359 Mass. 147, 149, 268 N.E.2d 334 (1971), and cases cited. United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746,...
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