Com. v. Nowells

• Decision Date: 20 December 1983
• Citation: 390 Mass. 621,458 N.E.2d 1186
• Parties: COMMONWEALTH v. Samuel H. NOWELLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1186

458 N.E.2d 1186

390 Mass. 621

COMMONWEALTH v. Samuel H. NOWELLS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 12, 1983.

Decided Dec. 20, 1983.

Brownlow M. Speer, Boston, for defendant.

Kevin J. Ross, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

This appeal presents the question whether unnamed informants' independent tips, none of which alone would support a finding of probable cause to issue a search warrant, may collectively provide a sufficient basis for concluding that the informants were credible or that their information was reliable and thus justify the issuance of a search warrant under the standards of the Fourth Amendment to the Constitution of the United States. A judge of the Superior Court denied the defendant's motion to suppress evidence obtained pursuant to a warrant issued in such circumstances. Thereafter another judge in a jury-waived trial found the defendant guilty of (1) the unauthorized possession of a shotgun with a barrel less than eighteen inches in length (G.L. c. 269, § 10 [c] ), and (2) possession of marihuana with intent to distribute (second offense) (G.L. c. 94C, § 32C). The defendant was sentenced to serve a prison term on the indictment charging him with the unauthorized possession of the sawed-off shotgun. The indictment for possession of marihuana with intent to distribute was placed on file. We selected the case for direct appellate review. We conclude that the motion to suppress should have been allowed.

The only evidence presented on the motion to suppress was the warrant, the affidavit in support of the issuance of a warrant to search the defendant's apartment, and the return. The significant portion of the affidavit consisted of tips from three undisclosed informants. It was sworn to on June 3, 1980, by an undercover narcotics officer of the Metropolitan District Commission police. With letters we have added at the beginning of each paragraph to identify each informant, the affidavit stated:

"[A] On or about May 10th, 1980, I was introduced to a party who stated that a[n] individual in Melrose by the name of Samuel H. Nowells of 307 Main Street has been for approximately two years and is now selling Cocaine and handguns out of that apartment. The informant knows this to be fact after having been in the apartment on some fifty (50) occasions and witnessing the guns and drug transactions. The informant knows also that Samuel H. Nowells has on occasion bought as much as fifty (50,000) thousand dollars of Cocaine at a time for distribution and sale. Which Cocaine he keeps in his apartment.

"[B] On May 20, 1980, I stopped a motor vehicle that was operated by a party who had a name similar to Nowells. When I questioned him in error, the subject stated that he was not the party that was dealing the guns and drugs, that the party that I was interested in was 'Nowells,' and that he knew him, and that he knew that he had guns for sale and he kept them secreted in a panel in the walls of the apartment.

"[C] On Tuesday, June 3, 1980, I met with another informant who states that: On or about Thursday, May 27, 1980, the occupant of the apartment at 307 Main St., Melrose, Samuel H. Nowells, invited the informant inside the apartment. While in the apartment to get (turned on) with cocaine the informant observed a dresser drawer with numerous handguns. The informant also saw sawed-off shot gun under the bed and was shown by Samuel H. Nowells an automatic rifle described as a military M-16. It was at this time that Samuel H. Nowells attempted to sell the informant a handgun. The informant also stated that Nowells is extremely dangerous and may attempt to get to his weapons when approached by police."

A separate analysis of the statements of each informant and what the balance of the affidavit says about each informant shows that there is no basis for concluding that the "veracity" prong of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), was met. There was no showing of "some of the underlying circumstances from which the officer concluded that [any] informant ... was 'credible' or his information 'reliable.' " Id. Except as the cumulative, reinforcing nature of the informants' tips may provide the necessary support, there is no allegation in the affidavit that would corroborate the information supplied so as to support a finding of probable cause. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969).

The question of mutually supportive tips is presented in this case in a pure form because, as we shall demonstrate, there is no other support in the affidavit for a determination that the informants' information was reliable or that any informant was credible. In a case in which independent police corroboration also supported the finding of probable cause, the Appeals Court said that tips which might not stand on their own "gained force from other tips which corroborated their assertions." Commonwealth v. Kiley, 11 Mass.App. 939, ---, 416 N.E.2d 980 (1981). Cf. Commonwealth v. Gisleson, 6 Mass.App. 911, 378 N.E.2d 1012 (1978) (three unnamed informants, none of whose tips was based on personal knowledge, could not reinforce each other so as to show the basis of their knowledge). The cumulative reinforcement of information provided by unidentified informants has been given weight in other cases. See United States v. McEachin, 670 F.2d 1139, 1143-1144 (D.C.Cir.1981) (four disinterested, unnamed eyewitnesses to a crime identified the defendant by name and address); United States v. Dauphinee, 538 F.2d 1, 4 (1st Cir.1976) (although police corroboration of details of informer A's information was an adequate basis for finding probable cause, the court relied in part on the fact that informant B gave limited corroboration of A's statements).

The subject of mutually reinforcing informants' tips has been considered by the Court of Appeals for the Fifth Circuit more than by any other court. That court has acknowledged that "where informers give tips that substantially corroborate each other that factor helps establish the reliability of the tips." United States v. Martin, 615 F.2d 318, 326 (5th Cir.1980) (corroboration "in close detail"). In most cases considered in that court, the informants' tips were corroborated at least in part by independent investigation. Id. at 326. See Williams v. Maggio, 679 F.2d 381, 391 (5th Cir.1982); United States v. Hyde, 574 F.2d 856, 863 (5th Cir.1978) (detailed information of criminal conduct from ten informants agreed in many particulars; some information was verified by independent police investigation). Of the cases in that court, only one involved the issue whether mutually supporting tips standing alone could provide an adequate ground for a finding of probable cause. In Williams v. Maggio, supra, the issue was raised in the context of the convicted defendant's claim of ineffective assistance of counsel. He argued that his counsel should have moved to suppress certain inculpatory statements he made following his allegedly illegal arrest for the crime of murder. The argument was that the affidavit in support of the arrest warrant relied solely on information from two confidential informants and that neither the informants' credibility nor the reliability of their information was shown. Each confidential informant stated that he had heard the defendant talking with other identified persons about having robbed a food store and having killed a guard. Each informant gave specific detail, the second informant largely corroborating the information of the first. The court concluded that the failure of counsel to challenge the admissibility of the defendant's statements was not ineffective assistance of counsel.

We turn to an analysis of the affidavit submitted in support of the search warrant in this case. We shall refer to the informants as informants A, B, and C, as set forth in the lettered paragraphs of the affidavit quoted above. Informant A and informant C gave the name and address of the defendant. Informant B did not. Informant A referred to seeing handguns and drug transactions while in the apartment on many occasions. This statement adequately supplied the basis of his knowledge of the presence of handguns and drugs in the defendant's apartment. Informant B provided no basis for his assertions concerning illegal sales of guns and drugs. Informant C said that he had been in the apartment and had seen numerous handguns, an automatic rifle, and a sawed-off shotgun. He made no reference to seeing drugs. Informant C, therefore, provided the basis of his knowledge of the presence of weapons at the defendant's apartment.

None of the information provided by each informant itself provides a basis for concluding either that he was credible or that his information was reliable, the second or "veracity" prong of the test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as amplified in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Although the standards of the Aguilar and Spinelli cases were relaxed by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Gates case, advancing a totality of the circumstances analysis, did not eliminate the requirement that there be some showing of the veracity of the information provided by an unnamed informant. See Commonwealth v. Upton, ante 390 Mass. 562 at ---, 458 N.E.2d 717 (1983); Illinois v. Gates, supra 103 S.Ct. at 2327.

The Commonwealth seeks to find support for the reliability of the information provided by informant C because informant C stated that he entered the defendant's apartment "to get (turned on) with cocaine." The Commonwealth...