Com. v. Parapar

• Decision Date: 13 March 1989
• Citation: 404 Mass. 319,534 N.E.2d 1167
• Parties: COMMONWEALTH v. Jose A. PARAPAR (and a companion case 1 ). Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1167

534 N.E.2d 1167

404 Mass. 319

COMMONWEALTH v. Jose A. PARAPAR (and a companion case ¹ ).

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 5, 1988.

Decided March 13, 1989.

Marc C. Laredo, Asst. Atty. Gen., (Kevon J. Cunningham, Asst. Atty. Gen., with him), for the Com.

Manny Daskal, Boston, for Jose A. Parapar.

Richard Landrigan, Somerville, for Israel Acosta, was present but did not argue.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The Commonwealth challenges an order of a Superior Court judge in Middlesex County suppressing all evidence illegally seized from the defendants, Jose Parapar and Israel Acosta. A single justice of this court allowed the Commonwealth's application, under Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979), for leave to appeal and transferred the case to the full court. We now reverse the order allowing the defendants' motion to suppress. Our decision is based upon art. 14 of the Massachusetts Declaration of Rights; any references to Federal case law are for purposes of analogy.

In an affidavit in support of an application for a search warrant, State trooper Carol Harding provided the following information. In July, 1987, Trooper Harding received information that confidential informant "A" was an alleged cocaine distributor. "A" had a record of criminal activity including robbery, larceny, and firearm convictions. As part of an undercover investigation, Trooper Harding made three cocaine purchases from "A." Trooper Harding communicated with "A" via his electronic beeper, a device commonly used to disguise illegal activities. The third purchase, 112 grams, was in "rock" form indicating that it had been broken off of a larger quantity. Trooper Harding arrested "A" for trafficking in cocaine.

After being informed of his rights, "A" told troopers that he had obtained the cocaine at a certain apartment at an address on Auburn Street in Cambridge. "A" stated that "Jose," a Hispanic male, was the occupant of that apartment, that Jose was only at the apartment between 7 and 10 P.M., that Jose was always "strapped," meaning carrying a weapon, and gave the apartment's telephone number. "A" also stated that "Clark" was a runner for Jose, gave Clark's telephone number, said that Clark drove a blue Oldsmobile, said that Clark had a roomate named Donald Hill, and that both Hill and Clark had criminal records.

Telephone company records indicated that the telephone number "A" gave as Jose's was listed, as an unpublished number, to Leticia Sandoval, at the apartment on Auburn Street in Cambridge. The telephone number "A" gave as Clark's was listed as belonging to Clark Caraven, at an address on Hubbard Avenue in Cambridge. Trooper Harding also learned that a 1984 blue Oldsmobile parked in front of the Hubbard Avenue address was registered to Clark, that Donald Hill had telephone service to him at that address, that both Clark and Hill had criminal records, and that Hill had a past record of narcotic violations.

"A" had told Trooper Harding, before the sale, that he wanted the "deal to go down" in Cambridge, because the "stash pad" (a location used by drug dealers to deal from and cut the product) was in Cambridge across the street from the Cambridge police department. Trooper Harding learned that Auburn Street is near the Cambridge police station.

During surveillance of the Auburn Street building, two troopers observed numerous people enter the building and leave a short time later. The troopers opined, based upon the amount of traffic at the location, that there was a large scale drug operation there.

At the same time troopers arrested "A," they arrested confidential informant "B." "B" took a trooper to the same building on Auburn Street, pointed out the door that "A" went into, showed the trooper where "A" parked the car, and said that "A" had gone into the building to get cocaine, and came out with cocaine.

A judge issued a search warrant for cocaine, any controlled substances, and materials and equipment used to manufacture and distribute controlled substances. Troopers executed the warrant, seized cocaine, cash, and drug-related items, and arrested the defendants for trafficking in cocaine. A Superior Court judge granted the defendants' motion to suppress. The Commonwealth appeals.

For an unidentified informant's information to pass muster under art. 14 of the Massachusetts Declaration of Rights, an affidavit must apprise the magistrate of facts and circumstances showing both (1) the underlying circumstances from which the informant concluded that contraband was where he or she claimed it was (the basis of knowledge test), and (2) the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable (the veracity test). Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985). See Spinelli v. United States, 393 U.S. 410, 414-415, 89 S.Ct. 584, 588-589, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).

Each prong of the Aguilar- Spinelli test, the basis of knowledge and the veracity of the informant, must be separately considered and satisfied. If an informant's tip fails to satisfy one of the two prongs, independent corroboration in the affidavit may supplement the informant's tip to support a finding of probable cause. Commonwealth v. Saleh, 396 Mass. 406, 410, 486 N.E.2d 706 (1985), citing Commonwealth v. Upton, supra, and Spinelli, supra, 393 U.S. at 415, 89 S.Ct. at 588.

The basis of knowledge test is clearly satisfied here, and the defendants do not challenge the judge's findings below regarding the first prong. "A" had personally obtained the cocaine which he sold to Trooper Harding on three occasions from Jose at the apartment on Auburn Street in Cambridge. The informant concluded that contraband was at Parapar's apartment based upon his personal observations. Commonwealth v. Valdez, 402 Mass. 65, 70, 521 N.E.2d 381 (1988). Commonwealth v. Borges, 395 Mass. 788, 795, 482 N.E.2d 314 (1985).

To satisfy the veracity prong of the Aguilar- Spinelli test the affidavit must establish either the general veracity of the informant or the specific reliability of his statement in this instance. Commonwealth v. Borges, supra, 395 Mass. at 794, 482 N.E.2d 314. The Commonwealth argues that "A's" statements were against his penal interest and therefore establish his credibility. We have previously stated that an informant's declaration against his or her penal interest is a factor that a magistrate may properly...