Com. v. Norris

• Decision Date: 26 December 1978
• Citation: 6 Mass.App.Ct. 761,383 N.E.2d 534
• Parties: COMMONWEALTH v. Matthew R. NORRIS.
• Court: Appeals Court of Massachusetts

Page 534

383 N.E.2d 534

6 Mass.App.Ct. 761

COMMONWEALTH v. Matthew R. NORRIS.

Appeals Court of Massachusetts, Norfolk and Suffolk.

Argued Nov. 13, 1978.

Decided Dec. 26, 1978.

Daniel E. Callahan, III, and Thomas J. Ford, Boston, for defendant.

Henry Van Dyke (Charles J. Hely, Asst. Dist. Atty., with him), and Margaret A. Corrigan, Asst. Dist. Atty., for the Com.

Before HALE, C. J., and KEVILLE and GRANT, JJ.

HALE, Chief Justice.

The defendant has appealed (G.L. c. 278, §§ 33A-33G) from (1) his conviction in the Superior Court in Suffolk County on an indictment in three counts charging that he did "buy, receive, and aid in the concealment of" certain stolen property (No. 95284); and (2) his convictions in the Superior Court in Norfolk County on a similar indictment in one count (No. 66012) and on another indictment charging him with unlawfully carrying a firearm (No. 66009). The cases have been consolidated for the purposes of appeal, and the issues raised by each are discussed separately below.

Suffolk County Indictment No. 95284.

At a pretrial hearing on the defendant's motion to suppress evidence obtained from his apartment pursuant to a search warrant, ¹ it was stipulated that the only issue for consideration was the sufficiency of the affidavit upon which the search warrant issued. The motion was denied. The defendant now argues that the affidavit was faulty for (1) failure to describe with particularity the things to be seized, as mandated by the Fourth Amendment to the Federal Constitution; (2) failure to describe the property for which the warrant was sought as required by G.L. c. 276, § 2B; and (3) failure to establish probable cause to search the defendant's apartment.

The essential portions of the affidavit are set forth in the margin. ² We limit our inquiry to the face of the affidavit and examine it "with a commonsense, nontechnical, ungrudging, and positive attitude." Commonwealth v. Martin, 6 Mass.App ---, --- - ---, ^A 381 N.E.2d 1114, 1116 (1978). A finding of probable cause, while demanding more than mere suspicion, requires a lesser showing than that which is necessary to justify a conviction. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Commonwealth v. Snow, 363 Mass. 778, 784, 298 N.E.2d 804 (1973). A certain leeway or leniency should be accorded the after-the-fact review of the sufficiency of an affidavit in order to encourage the police to use the warrant procedure, as they did here. Commonwealth v. Corradino, 368 Mass. 411, 416, 332 N.E.2d 907 (1975). Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966). We are mindful that affidavits are often drafted in the midst and haste of a criminal investigation (Commonwealth v. Sepeck, 359 Mass. 757, 271 N.E.2d 755 (1971)), that preference should be accorded warrants in marginal cases (COMMONWEALTH V. BLYE, 5 MASS.APP. ---, 362 N.E.2D 240 (1977)^B, and cases cited), and that credit should be given for the fact that there were determinations made below of probable cause. United States v. Ramirez, 279 F.2d 712, 716 (2d Cir. 1960), cert. denied 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

We deal with each of the defendant's arguments seriatim. The first is based on the absence in the affidavit of a description of property following the affiant's representation that "there is probable cause to believe that the property Hereinafter described has been stolen" (emphasis supplied). In the part of the printed affidavit form where such property should have been described there appears instead a description of the building in which the apartment to be searched was located. However, looking at the affidavit as a whole, (COMMONWEALTH V. BLYE, 5 MASS.APP. AT ---, 362 N.E.2D 240),^C we have no difficulty in determining that the property to be seized was the earlier described "stolen American Airlines tickets or coupons and paraphernalia." The error was not made in bad faith, did not affect the integrity of the affidavit as a whole, and was inconsequential. See Commonwealth v. Piso, 5 Mass.App. ---, --- - ---, ^D 364 N.E.2d 1102 (1977).

Nor do we have any difficulty in determining that the affidavit described the property for which the warrant was sought as required by G.L. c. 276, § 2B. The affidavit referred to an investigation into the whereabouts of approximately 1400 stolen tickets and paraphernalia and contained the phone number of a party who was believed to possess the tickets. The magistrate apparently had no difficulty, nor do we, in determining that the property sought was the stolen tickets and paraphernalia. Compare Commonwealth v. Snow, 363 Mass. at 785-786, 298 N.E.2d 804.

The essence of the defendant's final argument is that the affidavit failed to meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Although probable cause to issue a search warrant may be established by the hearsay statements of an informant, Jones v. United States, 362 U.S. 257, 269-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the affidavit must inform the magistrate of some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable and of some of the underlying circumstances from which the informant in this case concluded that the stolen tickets and paraphernalia were where he claimed them to be. Commonwealth v. Stewart,358 Mass. 747, 750, 267 N.E.2d 213 (1971).

We disagree with the defendant's contention that the affidavit failed to demonstrate the informant's reliability. Although there was no indication in the affidavit that Dansker had provided the police with reliable information in the past (contrast Commonwealth v. Snow, 363 Mass. at 783, 298 N.E.2d 804; Commonwealth v Vynorius, 369 Mass. 17[6 Mass.App.Ct. 765] ----,---- -- ---- n. 4, [1975] 336 N.E.2d 898 (1975)), there was a sufficient recital of underlying circumstances to enable the magistrate to conclude that Dansker was a reliable informant. Dansker, referred to at one point in the affidavit as "Defendant Dansker," was a potential codefendant of the party whose property was to be searched. Information provided by such an individual may be relied upon to establish probable cause. Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26 (1965). Commonwealth v. Von Utter, 355 Mass. 597, 600, 246 N.E.2d 806 (1969). Incriminating admissions by one who asserts participation in a crime carry their own indicia of credibility. Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26 (1965). United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Although an admission against penal interest is not conclusive on the issue of reliability, such an admission, together with other factors indicative of reliability, may be sufficient to support a finding of probable cause. Commonwealth v. Stewart, 358 Mass. at 752, 267 N.E.2d 213. Commonwealth v. Fleurant, 2 Mass.App. 250, 253, 311 N.E.2d 86 (1974). The affidavit before us contains such additional factors: Dansker is a named informant (Commonwealth v. Fleurant, supra ) who did not provide information in exchange for money. COMMONWEALTH V. MARTIN, 6 MASS.APP. AT ---, 381 N.E.2D 1114.^F United States v. Wilson, 479 F.2d 936, 940 (7th Cir. 1973).

The defendant argues that Dansker's admission in this case should be given short shrift since he had already been arrested at the time he gave his statement to the police and therefore had a strong motive to furnish information, however unreliable, in order to curry favor with the authorities. The fact that Dansker had already been arrested when he came forth with his statement does not prevent a magistrate from finding reliability. See COMMONWEALTH V. VYNORIUS, 369 MASS. AT ---, 336 N.E.2D 898.^G We note further that Dansker's admission was given voluntarily and in the presence of his attorney. Furthermore, it is likely that "one knows the police can charge him with a serious crime will not lightly undertake to direct the police down blind alleys." See LaFave, Probable Cause From Informants: The Effects of Murphy's Law on Fourth Amendment Adjudication, 77 Ill.L.Forum 1, 29 (1977). Dansker did not appear to have made "allegations of a character that would readily occur to a person prone to fabricate." Commonwealth v. Montanague, 5 Mass.App. ---, ---, ^H 369 N.E.2d 466, 467 (1977), quoting from United States v. Harris, 403 U.S. at 593, 91 S.Ct. 2075 (Harlan, J., dissenting).

We also find that the second prong of Aguilar was satisfied. The affidavit need not contain all the information possessed by the officer seeking a search warrant, as long as there is enough information to inform the magistrate of the basis of the informant's tip. United States v. Ramirez, 279 F.2d at 716. The affidavit in question informed the magistrate that Dansker voluntarily provided the police with the telephone number of the party "whom he knows" to possess the stolen tickets. Standing alone, such a recital would not assure the magistrate that the informant was relating anything more than "a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). However, when taken in conjunction with the recital in the affidavit of Dansker's earlier arrest for selling stolen tickets, the words "whom he knows" give rise to the inference that Dansker was in league with the defendant and was disclosing firsthand information. The magistrate could also have inferred that the tickets sold by Dansker were part of the 1400 tickets stolen on March 6, 1973, and that Dansker had acquired those tickets from the "party whom he knows to posses(s) the stolen tickets." The affidavit, by reciting facts permitting the inference of joint participation by Dansker and the defendant in criminal conduct, sufficiently informed the magistrate of the...