Com. v. Saleh

• Decision Date: 17 December 1985
• Citation: 486 N.E.2d 706,396 Mass. 406
• Parties: COMMONWEALTH v. Ali M. SALEH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 706

486 N.E.2d 706

396 Mass. 406

COMMONWEALTH v. Ali M. SALEH.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Sept. 12, 1985.

Decided Dec. 17, 1985.

William T. Walsh, Asst. Dist. Atty., for Commonwealth.

George M. Nassar, Springfield, for defendant.

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

ABRAMS, Justice.

Pursuant to Mass.R.Crim.P. 15(b)(2), ¹ the Commonwealth appeals from an order granting the defendant's motion to suppress. The Commonwealth asserts that the affidavits in support of the warrant to search the defendant's apartment establish probable cause under the "two-pronged test" of 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). See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). We agree with the Commonwealth. We reverse the order of suppression and remand this matter to the Superior Court for trial.

The search warrant was issued on the basis of two affidavits. The first affidavit was submitted by an officer of the Springfield police department and stated, in part, "Today, August 11, 1982 at about 10:30 A.M. I [was] assigned by Capt. Thomas Fitzgerald of the Springfield Police Department Crime Prevention Bureau, to assist Inspector William Bushka of the Federal Bureau of Investigation, and Sgt. Gil Bello of the Ludlow Police Department along with Lt. Richard Duffy of the Springfield Police Crime Prevention Bureau, in executing an arrest based on a warrant obtained by Sgt. Bello. The warrant named Ali Saleh 29 years old, D.O.B. 11/10/53 of Apt. 2404 at 10 Chestnut St. Springfield.

"At about 10:40 A.M. I assisted the above officers to Apt. 2404 at 10 Chestnut St. and we knocked on the door there. Ali Saleh responded to the door and we identified ourselves and explained to Ali Saleh that we had an arrest warrant for him charging that he received stolen property, a motor vehicle. Ali Saleh was dressed only in his underwear at the time and he stated that he wanted to get dressed. I followed Saleh into a middle bedroom and I observed a plastic bag on the shelf in the closet that was open. The bag contained black capsules and a brown substance which appeared to be hashish. I confiscated the plastic bag at that time and Sgt. Gil Bello advised Saleh of his Miranda warning at that time. Ali Saleh acknowledged that he understood his rights and stated that the contents in the bag were for his own use....

"On the basis of the foregoing information, ... I have probable cause to believe that [there] is a quantity of narcotics in the apartment, other [than] what I have already found and seized, therefore on the basis of the foregoing information, I believe that I have probable cause to search Apt. 2404 located at 10 Chestnut St., for illegal drugs and paraphernalia which I believe to be located there. (Hashish, cocaine and monies and bankbooks)".

The record reveals that the officer originally submitted only his own affidavit. Commendably, the magistrate refused to issue the warrant because the affidavit was insufficient to support a finding of probable cause. The officer then called an agent from the Federal Drug Enforcement Agency (DEA), who prepared a second affidavit. ² The DEA agent's affidavit stated in part: "I have a reliable informant known as CI-1, who has negotiated with Ali Saleh for purchases of drugs in excess of $4000 [within] the last week. CI-1 states that he believes that Ali Saleh ... stores the drugs he was going to buy at Saleh's apartment, 2404, in the Chestnut Towers. CI-1 has been working for me for over six months as a cooperating individual and is responsible for three arrests and federal indictments at the present time, CI-1's information has been true and accurate in the past. I also have another source of information CI-2 who has provided reliable information in the past that Ali Saleh deals hashish and cocaine out of Apt. 2404 in the Chestnut Towers, Springfield." With the addition of the second affidavit, the magistrate issued a search warrant. The search yielded various amounts of marijuana, hashish, cocaine, and heroin. The defendant was indicted for possession of controlled substances with intent to distribute. ³

The defendant filed a motion to suppress the evidence seized pursuant to the search warrant, alleging no probable cause. ⁴ In ruling on the motion, the judge applied the traditional "two-pronged test" of 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). The judge assumed that the second affidavit established the reliability of the two informants, thus satisfying the first or "reliability" prong of the Aguilar-Spinelli test. He also found, however, that the affidavit failed the second, or "basis of knowledge" part of the test because it did not show how the informants obtained the information that the defendant stored drugs in the apartment. The judge further found that the discovery of a package of hashish was insufficient to establish probable cause for the issuance of the search warrant. The judge therefore granted the motion to suppress. The Commonwealth appealed, and the single justice reported the case to the full bench.

We have recently reviewed the general rules governing search warrants. See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985). In Upton, we held that, under art. 14 of the Massachusetts Declaration of Rights, ⁵ 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). Thus, to establish probable cause, an affidavit based on information from an unnamed informant must provide the magistrate with facts showing some of the underlying circumstances leading to the informant's knowledge, as well as his reliability. Commonwealth v. Upton, supra 394 Mass. at 375, 476 N.E.2d 548. See Aguilar v. Texas, supra 378 U.S. at 114, 84 S.Ct. at 1514. If the informant's tip fails to satisfy one of these portions of the Aguilar test, independent corroboration in the affidavit may supplement the informant's tip to support a finding of probable cause. Commonwealth v. Upton, supra. See Spinelli v. United States, supra 393 U.S. at 415, 89 S.Ct. at 588. Nevertheless, "[e]ach prong of the Aguilar-Spinelli test--the basis of knowledge and the veracity of the informant--presents an independently important consideration." Commonwealth v. Upton, supra 394 Mass. at 375-376, 476 N.E.2d 548.

We turn now to the two affidavits and consider them together. See Commonwealth v. Daly, 358 Mass. 818, 266 N.E.2d 870 (1971); United States v. Dudek, 560 F.2d 1288, 1293 (6th Cir.1977), cert. denied, 434 U.S. 1037, 98 S.Ct. 774, 54 L.Ed.2d 786 (1978). Each affidavit contributes to the total picture from which the magistrate determines probable cause. Commonwealth v. Kaufman, 381 Mass. 301, 303, 408 N.E.2d 871 (1980). The DEA agent's affidavit reports a tip from an informant designated "CI-1" who "has been working for me for over six months as a cooperating individual and is responsible for three arrests and federal indictments at the present time [and his] information has been true and accurate in the past." This record of prior police cooperation is sufficient to establish the reliability of informant "CI-1." ⁶ Commonwealth v. Hall, 366 Mass. 790, 797, 323 N.E.2d 319 (1975).

The informant reportedly stated that he had negotiated with the defendant within the past week for purchases of drugs in excess of $4,000 and that he believed that the defendant was storing at his apartment the drugs the informant was going to buy. This information is sufficient to support an inference that, at the time of the issuance of the warrant, the defendant was distributing drugs. There is nothing in the affidavit from which the magistrate could determine that the items sought may reasonably be expected to be located in the place to be searched. Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980), and cases cited. Thus, the informant's tip does not indicate the basis of knowledge for his belief that the defendant stored drugs in his apartment and, standing alone, is insufficient to establish probable cause to search the defendant's apartment under the Aguilar-Spinelli standards. However, that information is not standing alone in this case. Prior to the receipt by the Springfield police of the tip, the police found hashish at the defendant's apartment. In these circumstances, the issue is not really whether the informant's tip is sufficiently corroborated, but rather whether the independent police observation of criminal activity bridges the gap between the Aguilar-defective informant's tip and a finding of probable cause. See State v. Gomez, 101 Idaho 802, 807, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981), citing 1 W. LaFave, Search and Seizure § 3.3(e), at 566-567 (1978). See also United States v. McNally, 473 F.2d 934, 939-940 (3d Cir.1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974). We believe that it does. "[T]he tip, even though not qualifying under Aguilar, may be used to give such additional color as is needed to elevate the information acquired by police observation above the...