Com. v. Snow

• Decision Date: 27 June 1973
• Citation: 298 N.E.2d 804,363 Mass. 778
• Parties: COMMONWEALTH v. William H. SNOW, Jr. (and nine companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 804

298 N.E.2d 804

363 Mass. 778

COMMONWEALTH v. William H. SNOW, Jr. (and nine companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 2, 1972.

Decided June 27, 1973.

William A. Schroeder, Boston (Charlotte A. Perretta, Boston, with him), for defendants.

Robert Sinider, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.

QUIRICO, Justice.

This is an interlocutory report by a judge of the Superior Court under G.L. c. 278, § 30A, inserted by St.1954, c. 528, ² of five questions relating (a) to the validity of a warrant for the search of the premises on which the defendants were arrested, and (b) to the validity of the search and arrest of the defendants. After holding a hearing on the defendants' pre-trial motions to suppress the evidence obtained in the searches of the premises and of their persons, the judge made findings on the factual issues raised by the motions. He then reported his findings and five questions of law arising therefrom for decision by this court. We summarize the pertinent portions of the facts thus found and of the record.

On February 20, 1970, Officer Thomas R. Matheson of the Boston Police Drug Control Unit who had been involved in narcotics investigations for three years applied to a District Court for a warrant to search the first floor and basement of a building identified as the Sportsman Hair Styling Salon, situated and numbered 312 Blue Hill Avenue in the Dorchester district of Boston, for 'any narcotic drug, article, implement or other paraphernalia used in, for, or in connection with the unlawful possession or use of any narcotic drug,' believed to be there 'kept or deposited by Tony Biggs,' one of the defendants. The warrant was issued authorizing the officers executing it (a) to enter the described premises, (b) to seize any drug or related implement or paragraphernalia found therein, and (c) 'to arrest the person or persons in whose possession . . . (any drug) is found, together with all persons present.'

Officer Matheson, together with Sergeant Doris and Officers Finnell, Cotter and Montgomery of the Boston police, then went to the area of the premises in question (barbershop) to execute the search warrant. They stopped within two blocks of the barbershop and Sergeant Doris gave Officer Montgomery who was working 'undercover' two ten dollar bills after making a note of their serial numbers. Officer Montgomery went alone to the barbershop where he used the two bills to purchase two decks of heroin from the defendant Biggs. Just after the purchase Biggs went over to the defendant Snow who was in the barbershop, spoke with him, and something passed between them.

Three or four minutes after Officer Montgomery had left the other officers, they received a call from him by 'walkie-talkie' radio equipment telling them he had just left the barbershop and describing what he had done and seen there. Sergeant Doris and the other officers went to the barbershop and entered it within two or three minutes after receiving the call. Officer Matheson entered first and announced in a voice loud enough for all inside to hear that they were police officers, that they had a search warrant, and that all persons in the place were to remain where they were. There were three barber chairs along the right side of the shop and six chairs for waiting customers on the left side. At the rear of the shop there was a stairway down to a lower level where there were a ladies' hair salon, a coat rack and a toilet.

Before they entered the barbershop the police knew that the defendants Biggs and Snow were in the shop but did not know that any other persons would be there. There were approximately eight persons in the shop at the time, including the four defendants. The defendant Marsh was seated in the first barber chair and the defendant Biggs was standing at the same chair. The defendant Snow was seated in the first of the six chairs on the left side of the shop and the defendant Herron in the fourth of those six chairs.

As the police entered the barbershop, Herron ran to the rear of the shop with Sergeant Doris in close pursuit, and while running he threw twenty-one bags of heroin to the floor just before the sergeant caught and arrested him. The sergeant also found eleven additional bags of heroin in a wastebasket where Herron was standing when arrested, but he did not see Herron put those bags there.

After entering the barbershop the police officers allowed no one to leave and they searched everyone present. On the defendant Biggs's person they found three decks of heroin, and on the defendant Snow's person they found the two ten dollar bills which Officer Montgomery had previously used for his purchase of heroin from Biggs as described above. They founded a deck of heroin in a cost hanging on a wall hook in the barbership and when they asked who owned the coat the defendant Marsh admitted that it was his. After the four defendants were arrested and taken to the police station, the police made a further search and found six decks of heroin on Snow's person and twenty-four decks of heroin on Marsh's person.

As a result of the events described above, the defendants have been charged in ten separate indictments with the following crimes: each defendant has been charged with the unlawful possession of heroin, each defendant has been charged with having heroin in his possession with the intent unlawfully to seel it, the defendant Biggs has been charged with unlawfully selling heroin to Officer Montgomery, and the defendant Marsh has been charged with the unlawful possession of marihuana, a narcotic drug. ³

We now consider the five questions of law which the judge determined, after finding the facts described above, to be 'so important or doubtful as to require the decision of the Supreme Judicial Court thereon prior to trial in the interests of justice.' Trial of the indictments was continued generally pending our decision on the questions reported.

1. Question 1 asks whether 'the affidavit for the search warrant . . . set forth sufficient facts to establish probable cause for the issuance of a search warrant.' The affidavit was signed by Officer Matheson and it includes the following statements: 'I am a Police Officer of the City of Boston, Drug Control Unit. . . . On 2--17--70 a reliable informant who has proved reliable in the past in the arrest and conviction of Pedro Pareda, Amado Duran, Erasmo Velasquez, Daniel Griffin and Louis Jones. All for the sale of Heroin and convicted within the past year. My informant now tells me that at 312 Blue Hill Ave., Dorchester, Sportsman Hair Styling Salon, that a man known to him as Tony Biggs is selling Narcotic Drugs, to wit: Heroin, Marijuana, Cocaine and that Tony Biggs keeps the Narcotic Drugs on his person or in his tool cabinet and that he also keeps a large amount of Narcotic Drugs in the back room (first floor) and basement at the above mentioned premises. On 2--18--70 and 2--19--70, Sgt. John Doris, Ptl. Dennis Casey and Ptl. Thomas R. Matheson while at 312 Blue Hill Ave., observed numerous known narcotic addicts entering and leaving the above premises. Tony Biggs is employed as a barber at the above premises and works at the barber chiar located next to the front door at 312 Blue Hill Ave.'

The defendants contend that the affidavit fails to meet the 'two-pronged test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as interpreted by Spinelli v. United States, 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637, that it contain (a) a statement 'of the 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusion' that drugs were kept unlawfully in the barbershop, and (b) statements of the affiant officer to support his claim that his informant was 'credible' or that his information was 'reliable.' We reject both contentions.

Treating the second requirement first, '(t)he informant's reliability was established by setting forth previous examples of his assistance in apprehending drug offenders.' COMMONWEALTH V. ANDERSON, MASS., 284 N.E.2D 219, 220,^A and cases cited. ⁴

As to the first requirement of the Aguilar and Spinnelli cases, the defendants argue that the statements which are attributed to the unnamed informant in the affidavit were insufficient as matter of law to constitute probable cause for the issuance of the warrant. Such an argument assumes, without legal foundation, that the sufficiency of the affidavit rests entirely on the statements of the informant. It does not. It is not necessary for this court to determine whether those statements, standing alone, are sufficient because, even if they were insufficient, '(i)t does not follow . . . that the search warrant was issued without probable cause.' Commonwealth v. Anderson, supra, at 221. ^b

'The sufficiency of the affidavit is to be decided on the basis of a consideration of all of its allegations as a whole, and not by first dissenting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone.' Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213, 216.

The allegation in the affidavit that on the two days preceding the application for the search warrant three police officers had 'observed numerous known narcotic addicts entering and leaving' the barbershop substantially corroborated the statements of the informant. That statement is entitled to weight in the decision of the magistrate to issue the warrant. The statement in Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, that an 'allegation that Spinelli was 'known' to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in...