Com. v. Singer

Citation564 N.E.2d 1037,29 Mass.App.Ct. 708
Decision Date27 February 1991
Docket NumberNo. 90-P-518,90-P-518
PartiesCOMMONWEALTH v. Jonathan SINGER.
CourtAppeals Court of Massachusetts

Harold H. Hakala, Boston, for defendant.

Jane A. Donohue, Asst. Dist. Atty., for Com.

Before DREBEN, KAPLAN and PORADA, JJ.

DREBEN, Justice.

On October 9, 1986, the defendant, Jonathan Singer, was stopped in his automobile and advised that the drug control unit of the Boston police department had a warrant to search his apartment on the first floor, righthand side, of 38 Spring Park Avenue, Jamaica Plain. Singer accompanied Officer Murray and other drug control unit officers to his apartment (in a building of four apartments) and unlocked the door. Once in the living room, one of the officers, Officer Geary, pushed a blank wall at the lefthand side of the fireplace; the wall lifted up, "like an elephant trunk," revealing a secret passageway to the basement. The police descended and, in a locked room in the basement opened with the defendant's keys, discovered cocaine (later determined to weigh 116.10 grams) and drug paraphernalia. Money was found in a locked safe. The defendant was arrested and subsequently convicted in a jury-waived trial on an indictment charging him with trafficking in cocaine. 1

In his appeal, the defendant claims that he made a substantial preliminary showing that the confidential informant whose information provided the basis for the issuance of the search warrant did not exist and that he was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He also claims that even if a Franks hearing was not required, his request for an in camera hearing should have been granted under Commonwealth v. Amral, 407 Mass. 511, 522-523, 554 N.E.2d 1189 (1990), since he had asserted facts casting "reasonable doubt on the veracity of material representations made by [the officer in his affidavit supporting the warrant] concerning a confidential informant." We affirm the conviction.

The affidavit in support of the search warrant, set forth in its entirety in the appendix, was signed by Officer Joseph Geary. It alleged that Geary was experienced in drug investigations and had participated in approximately 400 arrests involving cocaine; that he had information from a confidential and reliable informant who had provided him with information in the last six months which had led to the arrest of one Stanley Strouble for trafficking in cocaine and a seizure of cocaine, and with information which had led to the arrest of Eddie Reynolds for possession of cocaine with intent to distribute, resulting in a seizure of cocaine and a conviction; that the informant told him that the defendant was selling cocaine in various quantities from the first floor right-side apartment at 38 Spring Park Avenue, Jamaica Plain, and from a room in the cellar which contained a safe; that the informant was physically present when a white male purchased cocaine in that apartment and that he saw the white male make an additional purchase of cocaine which was taken from a locked safe in a locked room in the cellar. Based on this information, Officer Geary asserted that he and other members of the drug control unit set up observations of 38 Spring Park Avenue; that Geary observed individuals known to him to be involved in cocaine dealing enter that building and depart within a few minutes; that he saw the defendant, who had become known to Geary through police records, photographs, and other investigative means, enter a 1978 Lincoln automobile registered to him which was parked in the driveway of 38 Spring Park Avenue; that Geary followed the vehicle to the intersection of St. James Avenue and Berkeley Street; that he saw a white male, approximately 5' 6"' tall, weighing 150 pounds, approach the Lincoln, converse with the defendant, and hand him money; that he observed the defendant take out a small clear wrapper containing a white substance and hand it to the white male; and that based on his experience as a narcotics investigator, he believed that the incident was a drug transaction.

The application was successful, and a warrant issued authorizing a search for, inter alia, cocaine, keys, money, and drug paraphernalia in:

"all rooms, closets and storage areas inside the first floor right side apartment, located at 38 Spring Park Avenue ..., a large floor model safe ... and the room in the cellar ... in which the large floor model safe is located. And all common areas inside 38 Spring Park Avenue which the occupants of the first floor right side apartment have access to including the cellar."

On execution of the warrant, the police, as recited earlier, found drugs and other incriminating material.

Prior to trial, the defendant moved for an "evidentiary Franks hearing" and for the disclosure of the identity of the unnamed informant. Franks v. Delaware, 438 U.S. at 155-156, 98 S.Ct. at 2676, held that if a defendant "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." See also Commonwealth v. Honneus, 390 Mass. 136, 142, 453 N.E.2d 1053 (1983). If the defendant makes the requisite showing at such a hearing, and if the remaining content of the affidavit after the offending material is excised is insufficient, the "search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Franks 438 U.S. at 156, 98 S.Ct. at 2676.

The defendant made three attempts before two motion judges to receive a Franks hearing. Using the two arrests listed in Geary's affidavit as a starting point, counsel for the defendant examined the affidavits in support of search warrants for those two cases and found therein the names of persons whose criminal activities appear to have been revealed by the same informant. At the time of the first argument on the defendant's motion (October 27, 1988), counsel's investigation disclosed that the informant apparently had provided information leading to nine seizures of drugs and arrests for possession and trafficking of cocaine and marijuana. Counsel urged that the data provided involved so many diverse socioeconomic backgrounds and geographical areas that it was implausible that the information came from only one informant. In addition, counsel argued that the claim that the informant had led to the arrest and seizure of drugs relating to William Papageorge was knowingly false 2 because Geary's own testimony at the grand jury hearings prior to Papageorge's indictment indicated that no informant was involved in that case. The defendant's motion was accompanied by the Papageorge grand jury minutes, four search warrants, a chart showing interrelations among the persons named in the various affidavits, and an affidavit of counsel.

After taking the matter under advisement, the first motion judge denied the defendant's request, concluding that there was nothing remarkable about one informant's presence at drug deals in Jamaica Plain, Mattapan, Dorchester, and the South End over the course of a year, as the informant could be a supplier to those locations. The judge also noted (correctly) that the defendant had provided no evidence regarding the socioeconomic diversity of the people arrested. As to the Papageorge grand jury minutes, the judge concluded that at least three persons were in a position to have acted as an informant. More will be said about the Papageorge case later on.

Buttressed by adverse publicity concerning police practices in the Boston Globe in March, 1989, in connection with the Lewin case, see the subsequent opinion in Commonwealth v. Lewin, 405 Mass. 566, 542 N.E.2d 275 (1989), the defendant, on April 12, 1989, sought reconsideration of the judge's ruling. He presented the results of additional investigation showing that fifteen more affidavits appeared to rely on the same informant. These affidavits were submitted to the judge as well as a chart purporting to show that the informant here relied upon had given information leading to more than thirty arrests. 3 The Papageorge transcript of trial was also included. The motion for reconsideration was denied without a hearing.

The defendant next brought the matter before a second motion judge, arguing this time that although the informant probably existed (the description of the apartment was too accurate to be invented), his prior track record was misrepresented in order to procure the warrant. Counsel again pointed to the Papageorge transcript and the similarity of language in the warrants. The second judge ruled that there had been no substantial preliminary showing as required by Franks.

1. Right to a "Franks hearing."

To substantiate his claim that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in Geary's affidavit, the defendant, in this appeal, refers to the Papageorge case and also to the large number (approximately twenty) of affidavits appearing to rely on the same informant. See Commonwealth v. Lewin, 405 Mass. at 582, 542 N.E.2d 275. His showing is insufficient.

We turn to the facts as appearing in the Papageorge trial transcript. Papageorge rented a car from Hertz on September 24, 1985, to be returned on October 1. The Hertz car control office was notified on October 15, 1985, by a representative of the Copley Place public parking facility that the Hertz car had been in the same space in that facility for more than twenty days and that the facility wanted it removed. It was suggested that the managers believed the...

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