Com. v. Perez-Baez
| Decision Date | 08 May 1991 |
| Docket Number | PEREZ-BAEZ |
| Citation | 410 Mass. 43,570 N.E.2d 1026 |
| Parties | COMMONWEALTH v. Jose M. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Nijole Makaitis, Asst. Dist. Atty., for the Com.
John D. Hodges, Jr., for defendant.
Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY, JJ.
We are called upon to determine whether a clerk-magistrate, relying in part on information provided by an unnamed informant, was justified in finding probable cause to issue a search warrant. The Commonwealth appeals from the suppression of evidence seized during the execution of the warrant. We determine that the affidavit in support of the warrant application set forth sufficient facts to justify the issuance of the warrant. We therefore set aside the order of suppression.
Sometime after September 4, 1988, Detective Donald Gosselin communicated with a confidential informant (referred to in the affidavit as "IT"). This informant had provided information in the past which, on separate occasions, had led to the arrest of two persons for possession of cocaine and the attendant seizure of the cocaine. The persons arrested were, at the time of the warrant application, awaiting trial.
The informant told Detective Gosselin that a man named Luis Garcia (this name is an alias for the defendant) picked up the informant and a friend and drove the two to 153 Brighton Avenue in the Brighton section of Boston. The informant stated that Luis Garcia drove a grey Audi automobile. Garcia, a man in his mid-twenties, led them to apartment 9 on the second floor. The informant's companion exchanged several hundred dollars for a plastic bag filled with white powder which Garcia had retrieved from another room.
On September 8, 1988, Gosselin applied to a clerk-magistrate in Brighton for a search warrant. Detective Gosselin supported his application with an affidavit alleging, in substance, the facts outlined above. The warrant was granted, drug related paraphernalia were seized, and the defendant was arrested. The defendant moved to suppress the evidence at trial. Based largely on our holding in Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255 (1988), the judge of the Superior Court granted the motion. We now reverse.
In order for a search to be valid under art. 14 of the Declaration of Rights of the Commonwealth, it must be supported by probable cause. 1 Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). The information contained in the unknown informant's tip was sufficient, if the magistrate could properly rely upon it, to support a finding of probable cause. In Upton, we stated that "if an affidavit is based on information from an unknown informant, the magistrate must 'be informed of (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)' " (citations omitted). Id. at 374-375, 476 N.E.2d 548.
In this case, the basis of the informant's knowledge is established. He was present at the sale and therefore had personal knowledge based upon what he saw. The only inquiry remaining, therefore, is into the veracity of the informant.
This test may be satisfied by demonstrating that the informant has provided information in the past which has proved to be accurate. Commonwealth v. Valdez, 402 Mass. 65, 71, 521 N.E.2d 381 (1988). In this case, the affidavit stated that the informant had provided information which had led to two separate arrests for possession of cocaine and seizure of the cocaine incident to those arrests. 2 At the time, the cases were still pending in the District Court. The defendant argues that because the affidavit here states that the prior tips have led to mere arrests, rather than convictions, the case of Commonwealth v. Rojas, 403 Mass. 483, 531 N.E.2d 255 (1988), precludes reliance upon the information.
In Rojas this court held that "[a] naked assertion that in the past the informant had...
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