Com. v. Oliveira, 92-P-1218

• Decision Date: 22 December 1993
• Docket Number: No. 92-P-1218,92-P-1218
• Parties: COMMONWEALTH v. Antone D. OLIVEIRA, Jr. (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 598

624 N.E.2d 598

35 Mass.App.Ct. 645

COMMONWEALTH v. Antone D. OLIVEIRA, Jr. (and a companion case ¹).

No. 92-P-1218.

Appeals Court of Massachusetts,

Bristol.

Argued Sept. 23, 1993.

Decided Dec. 22, 1993.

Juliane Balliro, Boston, for Antone D. Oliveira.

Francis M. O'Boy, Taunton, for Suzanne M. Oliveira.

Kevan J. Cunningham, Asst. Dist. Atty., for Com.

Before DREBEN, KAPLAN and GILLERMAN, JJ.

KAPLAN, Justice.

After joint trial by jury in Bristol Superior Court the defendants Antone Oliveira and Suzanne Oliveira were severally found guilty of trafficking in cocaine in a weight of 200 grams or more (G.L. c. 94C, § 32E). They had applied pretrial to suppress the physical evidence, asserting that it was seized in violation of art. 14 of the Declaration of Rights of the Massachusetts Constitution because the affidavit presented to the magistrate to secure a search warrant did not disclose probable cause. The main claim in these appeals from the convictions is that the judge erred in denying a motion to suppress. There are further claims that a Franks motion was erroneously denied and, in respect to the defendant Suzanne Oliveira, that there was not enough evidence at trial to convict. We uphold the first claim and deny the others, with the result that the convictions will be reversed for a new trial.

1. We invite attention to the Appendix to this opinion, setting out the material section of the affidavit upon which the magistrate issued the warrant. The affiant was Charles Pelletier, an Acushnet police officer, who recounted what Kenneth Cotta of the Dartmouth police told him about statements made to Cotta by an unnamed informant. The judge summarized the highlights of the informant's statements thus:

"Here, the informant described with particularity the defendant A. Oliveira's activities. He described speaking to A. Oliveira, who told the informant that he was going to be getting two kilos of cocaine, that he planned to keep it at 60 Middle Road, and that he was not going to keep it for long because he had customers already lined up for New Year's Eve. The informant described one of the customers. He specifically described the activities of the individual who would bring the cocaine up from Florida, and he described the activities of guards. In addition, he detailed the defendant's alleged plan to cut the cocaine up and get rid of it as quickly as possible. The informant also described seeing cocaine inside 60 Middle Road on the second floor and in the finished cellar. He also described the existence of an apartment over the garage which served as a 'watchtower.' "

Implicitly the judge found that the Pelletier affidavit satisfied the "basis of knowledge" test of the Aquilar- Spinelli standard, ² and we agree, since the informant averred direct contact with Antone Oliveira.

The judge found, and we agree, that the affidavit did not satisfy the "veracity" test (credibility of the unnamed informant or reliability of the information provided) in any customary way. Thus the Pelletier affidavit says that the unnamed informant assisted in one arrest, but arrest is not the equivalent of conviction, see Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988). According to the affidavit, Antone Oliveira had been arrested for drug offenses, but apart from the fact that arrests were mentioned, not convictions, the arrests were too remote in time (1970 and 1976) to count as corroboration in any calculus of the informant's veracity. See Commonwealth v. Allen, 406 Mass. 575, 579, 549 N.E.2d 430 (1990). The suggestion in the affidavit that enforcement agencies suspected Antone Oliveira of keeping weapons did not add much (and note that keeping weapons is not necessarily a crime, for possession may be licensed).

As the "veracity test" concededly came up negative on any usual basis, the judge was reduced to saying that "veracity" was "self-proved" in this affidavit, that is to say, the affidavit, in his view, was so detailed that it satisfied both the basis of knowledge and the veracity requirements. There is much difficulty in following the judge.

There are, indeed, cases where the affidavit describes the characteristics of the targeted person or the person's activities in such detail that a court may infer that the informant had direct contact with the person, see, e.g., United States v. Myers, 538 F.2d 424, 426 (D.C.Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), thus establishing basis of knowledge. One may say that such an inference is a kind of self-proof, but this is very different from the judge's proposition here.

The judge's proposition--that the mere proliferation of detail in an affidavit may serve as adequate proof of an unidentified informant's veracity--cannot be accepted as a flat rule. If so accepted, it would open up an interesting prospect: we would see informants guilefully providing what Pooh-Bah in "The Mikado" calls "detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative." Moylan, J., makes the point in Stanley v. State, 19 Md.App. 507, 533, 313 A.2d 847 (1974): "If the informant were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about 'veracity.' " And the judge says again in Stanley, quoting from a law review note: ³ " 'Uncorroborated detail of any amount hardly supports an inference that the informer is trustworthy, for even a wealth of detail is easily fabricated. For this reason, detail of this sort goes only to the first test of Aguilar, the basis test.' " Ibid. ⁴ Taking the same position, see United States v. Martin, 615 F.2d 318, 325 n. 9 (5th Cir.1980); Waldrop v. State, 424 So.2d 1345, 1349 (Ala.Crim.App.1982); People v. Lindner, 24 Ill.App.3d 995, 999, 322 N.E.2d 229 (1975); State v. Smith, 28 Wash.App. 387, 393, 624 P.2d 191 (1981). Professor Wayne LaFave reaches the same conclusion, and attacks convincingly a decision, State v. Chapman, 24 N.C.App. 462, 467, 211 S.E.2d 489 (1975), that suggests a contrary view. 1 LaFave, Search and Seizure § 3.3(e) at 672 (2d ed. 1987). Professor Yale Kamisar agrees in his article, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L.Rev. 551, 557-558 (1984).

An affidavit of whatever detail as to basis of knowledge would still need some distinct indication of the reliability of the source of the information. Statements that the informant had helped the police in the past to secure criminal convictions for similar offenses, or that the police had conducted a surveillance that corroborated by actual observation material averments attributed to the informant in the affidavit, often serve as indicators of veracity. So also there are indicators of veracity in the special cases where informants put themselves at actual risk by their assertions to the police, and here we look to detail and may speak of a kind of self-proof. Take a statement in the affidavit that the informant has admitted to acting in concert with the targeted person in the commission of particular offenses like that being charged to the person--an admission against interest that involves the informant in real danger of prosecution if he or she is later found to have borne false witness. Or assume a statement in the affidavit that the informant recounted specific facts (other than innocent or innocuous) about the person that the informant at the time would have understood to be open to definite confirmation by police observation, but that, unknown to the informant, was actually not confirmable. ⁵

The judge below cited, in support of his flat proposition about detail in the affidavit, the cases of Commonwealth v. Atchue, 393 Mass. 343, 348, 471 N.E.2d 91 (1984), and Commonwealth v. Rojas, 403 Mass. at 487, 531 N.E.2d 255. These opinions envisage the possibility of a self-proving affidavit in which basis-of-knowledge materials might do double duty as indicators of informants' veracity or reliability. But that general idea did not control decision in either case, and both are consistent with our discussion above. In Atchue the informant was named in the affidavit, a conventional corroborative element. Nor was the idea applied in Rojas; it was not reached because there was insufficient detail or specificity to begin with. The court said: "For an informant's tip to be considered reliable, despite failing to satisfy the requirements of the veracity prong, it must contain a high degree of specificity. In this case, the informant did not provide particularized distinguishing characteristics of the defendant's apartment, possessions, or activities." And the court then added significantly: "We note that, in recent cases endorsing the notion of the self-verifying tip, other indicia of reliability were present to support a finding of veracity. See Commonwealth v. Germain, 396 Mass. 413, 418, (1985) (police investigation corroborated informant's tip); Commonwealth v. Atchue, supra (fact informant was identified carried indicia of reliability)." 403 Mass. at 487, 531 N.E.2d 255 (footnote omitted). We may add that in Commonwealth v. Parapar, 404 Mass. 319, 322-324, 534 N.E.2d 1167 (1989), there was corroboration by police work and other means. ⁶

Declining endorsement of the judge's proposition, taken broadly, obviates the task of formulating and enforcing a standard of specificity apposite to the problem, discourages fabrication or exaggeration on the part of informants and affiants, and encourages a due amount of police work in appropriate cases to confirm or disprove informants' allegations. ⁷

As a separate ground of decision in the present case, we say that if, contrary to our submission above, no corroborative indicia are required, then very considerable specificity should be demanded as to basis of knowledge. The judge's finding herein about detail and specificity did not, we suppose, take...