Com. v. Rojas

• Decision Date: 08 December 1988
• Citation: 531 N.E.2d 255,403 Mass. 483
• Parties: COMMONWEALTH v. Marcos A. ROJAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 255

531 N.E.2d 255

403 Mass. 483

COMMONWEALTH v. Marcos A. ROJAS.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Oct. 5, 1988.

Decided Dec. 8, 1988.

David A. Grossbaum, Asst. Dist. Atty. (Judith Fabricant, Sp. Asst. Dist. Atty., with him) for Com.

Michael P. Hickey, Newark, N.J., for defendant.

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

LIACOS, Justice.

The Commonwealth, pursuant to Mass.R.Crim.P. 15(b), as amended, 397 Mass. 1225 (1986), appeals from an order of a judge in the Superior Court granting the defendant's motion to suppress evidence. ¹ The Commonwealth maintains that the affidavit in support of the warrant to search the defendant's apartment established probable cause under the "Aguilar- Spinelli test." See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). We disagree. We affirm the order suppressing the evidence seized under the warrant.

We summarize the affidavit in support of the search warrant. On March 12, 1986, State police officer Gregory C. Dern, the affiant, had a conversation "with a confidential and reliable informant [informant] who ha[d] previously provided information which led to the March, 1986 arrest of McEverett Peters of Lynn, Ma. on a warrant for distributing Class 'A' Heroin."

The informant reported that the defendant, Marcos A. Rojas, deals large quantities of cocaine from his first-floor apartment at 27 North Federal Street, Lynn, and distributes it to various clients using a "pager" or "beeper." The informant noted that Rojas constantly monitors a police scanner out of fear of police detection. The informant related that he had seen Rojas in possession of a .357 Magnum pistol, and that Rojas makes cocaine deliveries in a white Toyota automobile with Massachusetts license plate number 553-KCZ.

On March 17, 1986, the informant told the affiant that, while within Rojas' apartment within the previous twenty-four hours, he had seen Rojas with several plastic bags of cocaine, had observed him using his pager, and had watched him leave the apartment to deliver the cocaine. At this time, according to the informant, Rojas was in possession of a .357 Magnum pistol.

On March 13, 1986, the affiant spoke with a "concerned citizen" (citizen), who wished to remain anonymous out of a fear for safety. ² The citizen stated that Rojas was distributing cocaine from his first-floor apartment using a page-call system, and that Rojas was in constant possession of a handgun. ³ The citizen stated that she, or he, personally observed plastic bags containing cocaine in the apartment.

On the basis of this affidavit, a clerk of the Lynn District Court issued a warrant on March 18, 1986, to search 27 North Federal Street, Lynn. Officer Dern executed the search on the same day and seized, among other things: "[o]ne plastic bag with white (brick) substance," "[o]ne tinfoil wrap with white powder," "[o]ne Ohaus Triple Beam Scale with powder residue," "[o]ne .357 Magnum pistol," and "[o]ne Omni Page Beeper."

Subsequently, the defendant was indicted by a grand jury for trafficking in cocaine and for the unlawful possession of a firearm. Prior to trial, the motion judge ordered the suppression of the evidence on the ground that the affidavit failed to establish probable cause.

Under art. 14 of the Massachusetts Declaration of Rights, a magistrate, before issuing a search warrant, must determine that probable cause exists. Commonwealth v. Upton, supra. "In Upton, we held that, under art. 14 ... the test for determining probable cause in cases involving unnamed informants incorporates the principles developed under Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969), and Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964)" (footnote omitted). Commonwealth v. Saleh, 396 Mass. 406, 409, 486 N.E.2d 706 (1985). "Under the Aguilar- Spinelli standard, 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). Aguilar v. Texas, supra [378 U.S.] at 114 . If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause. Spinelli v. United States, supra [393 U.S.] at 415 .' " Commonwealth v. Upton, supra 394 Mass. at 374-375, 476 N.E.2d 548.

We agree with the motion judge that the information in the affidavit regarding the past performance of the informant was not sufficient to satisfy the "veracity prong" of the Aguilar- Spinelli test. ⁴ The only reference to this informant's veracity was the statement that he previously had provided information which led to the March, 1986, arrest of Peters. A naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish an informant's veracity. The magistrate must be furnished with more detail regarding the circumstances of the prior arrest in order to make a meaningful determination of the informant's veracity. The affidavit does not make clear what role the informant played in obtaining the arrest. Nor does it indicate whether any information previously provided to the police by him had been proven correct. See Commonwealth v. Malone, 24 Mass.App.Ct. 70, 72, 506 N.E.2d 163 (1987) (outlining aspects of reliability required and analyzing cases on point). See also 1 W. LaFave, Search and Seizure § 3.3(b) (2d ed. 1987); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 758-761 (1974).

The Commonwealth mistakenly argues that Commonwealth v. Valdez, 402 Mass. 65, 521 N.E.2d 381 (1988), compels this court to find that the informant was reliable in this case. In Valdez, the affidavit at issue recited that the informant recently had provided "information to the police which led to a 'cocaine arrest' on an outstanding 1985 warrant." Id. at 70, 521 N.E.2d 381. The affidavit in that case satisfied the veracity prong because the informant had been proven correct in his revelation of a particular fact, namely, the whereabouts of the arrestee. The court in Valdez did not hold that the fact that an informant gave information leading to a prior arrest was sufficient to establish the veracity of the informant. A careful reading of Valdez reveals that the information provided by the informant was the basis of probable cause for the issuance of the outstanding arrest warrant. This explains the court's comment that "[i]t is fairly inferable ... that the informant provided information as to the arrestee's whereabouts, rather than information helpful to an investigation of crime." Id. at 70-71, 521 N.E.2d 381. Additionally, the court relied, in part, on "police surveillance [which] lent credence to the informant and his statements." Id. at 71, 521 N.E.2d 381. ⁵

We disagree with the Commonwealth's assertion that the information contained in the affidavit was sufficiently detailed to be self-verifying. Cf. Commonwealth v. Atchue, 393 Mass. 343, 348, 471 N.E.2d 91 (1984). 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. 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, 486 N.E.2d 693 (1985) (police investigation corroborated informant's tip); ⁶ Commonwealth v. Atchue, supra (fact informant was identified carried indicia of reliability).

The information given by the...