Com. v. Toledo

• Decision Date: 12 July 2006
• Docket Number: No. 05-P-1010.,05-P-1010.
• Citation: 66 Mass. App. Ct. 688,849 N.E.2d 1281
• Parties: COMMONWEALTH v. Fernando TOLEDO (and a companion case<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

849 N.E.2d 1281

66 Mass. App. Ct. 688

COMMONWEALTH v. Fernando TOLEDO (and

a companion case¹).

No. 05-P-1010.

Appeals Court of Massachusetts,

Suffolk.

Argued March 7, 2006.

Decided July 12, 2006.

Chrystal A. Murray, Jamaica Plain (Barry C. Abelson with her) for the defendant.

Paul B. Linn, Assistant District Attorney (William Freeman, Assistant District Attorney, with him) for the Commonwealth.

Present: LAURENCE, BERRY, & DOERFER, JJ.

LAURENCE, J.

Pursuant to a search warrant, Boston police officers seized firearms, ammunition, and drugs from the residence of defendant Fernando Toledo (Fernando) at 80 West Dedham Street, Boston. Fernando moved to suppress the evidence seized, asserting that (1) the warrant was constitutionally and statutorily invalid because it failed to describe with sufficient particularity the premises to be searched; and (2) the search was illegal because the affidavit in support of the warrant failed to establish probable cause. A codefendant, Pablo Charles Toledo (Pablo), joined in that motion.² After hearing arguments of counsel but without an evidentiary hearing, a Superior Court judge denied the motions to suppress. The defendants each filed an application for interlocutory appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). Both applications were allowed and the cases reported to this court for determination. See ibid. Pablo subsequently filed a motion to intervene, requesting permission to join in the brief and argument of codefendant Fernando. See Mass.R.A.P. 16(j), 365 Mass. 863 (1974). We allowed that motion and consolidated the two appeals. See Mass. R.A.P. 3(b), 365 Mass. 846 (1974). We affirm.

Background.³ We summarize the relevant facts from the affidavit filed in support of the search warrant.⁴ On August 10, 2004, a confidential informant known as "Jibaro" told Officer Juan Jose Seoane of the Boston police department that a man, known to him only as "Fernando," was attempting to sell three firearms⁵ for at least $2,000. Jibaro described Fernando as a white Hispanic male, about fifty years old and six feet tall, with a light complexion and tattoos on both arms. Jibaro told Officer Seoane that he had seen the firearms inside Fernando's apartment that very day, shortly after noon, and that "Fernando resides in Villa Victoria at 80 West Newton St. apartment # 1310 and his doorbell number is 0224." Jibaro also supplied Fernando's home and cell phone numbers and informed Officer Seoane that Fernando was "looking to sell [the firearms] today or tomorrow [at] the latest."

Following his receipt of this information, Officer Seoane immediately undertook several investigative efforts in an attempt to identify Fernando, including a reverse phone number inquiry, a motor vehicle license search, a board of probation check, and a firearm permit check. These inquiries revealed that the home phone number belonged to a Fernando Toledo of "80 West Dedham St., Boston"; that a car was registered to Fernando Toledo whose home address was "80 West Dedham St. apartment 1310, Boston"; and that the Fernando Toledo at that address had no license to carry any firearm, had been issued a firearms identification card that had expired in 1999, and was not listed as a legal gun owner.

Officer Seoane then contacted and met with Jibaro, who identified the motor vehicle license photo of Fernando Toledo that Seoane had obtained as the same "Fernando" whom he had seen inside "80 West Dedham St. apartment # 1310" with the firearms he had described. Based on Jibaro's information and the results of his own investigations, Officer Seoane's affidavit expressed his belief that Fernando Toledo "of 80 West Dedham St., Boston" was illegally keeping the specified firearms in his apartment for sale and stated that Seoane was submitting the affidavit "in support of an application of [sic] a search warrant for 80 West Dedham St. Apartment # 1310, Boston."

With the foregoing information in hand in affidavit form, Officer Seoane filed an application for a warrant to search for the specified firearms and related materials, as well as any personal papers or effects showing occupancy or control of "80 West Newton St. apartment # 1310," "inside 80 West Newton st. apartment # 1310, Boston," and all common areas "of 80 West Newton St. # 1310." The application described the target building as a brown, multi-unit apartment building made of brick and concrete with "the number 80 West Dedham Poder Unidad" on top of the front entrance. Apartment 1310 was described as being on the thirteenth floor, to the left of the elevator, and the last apartment on the right side of the hallway.⁶

A Roxbury District Court clerk-magistrate issued a warrant on the basis of that application, authorizing a search of "80 West Newton st. apartment # 1310, Boston." The warrant is essentially a verbatim copy of Officer Seoane's application; it mentions "80 West Newton St." four times but describes the locus of the search as a "multi unit apartment building brick and concrete structure . . . [which] is brown and has the number 80 West Dedham Poder Unidad on top of the front entrance." The warrant similarly gave the precise location of the apartment on the thirteenth floor to be searched.

Pursuant to this warrant, Officer Seoane led a police team that executed a search of apartment 1310 at 80 West Dedham Street, Boston, where they found and seized the sought firearms, along with drugs, drug paraphernalia, and three individuals, including the instant defendants.

Discussion. 1. Probable cause. The defendants' contention that the facts in Officer Seoane's affidavit were insufficient to establish probable cause to issue the warrant under the standards set forth in Commonwealth v. Upton, 394 Mass. 363, 373-376, 476 N.E.2d 548 (1985), need not detain us. We agree with the Commonwealth's argument that the information supplied by Jibaro — who was not an anonymous informant but rather one whom police could and did contact, whose basis of knowledge was established by his firsthand observations inside Fernando's apartment, and whose veracity was reflected in his detailed description of the contraband, of Fernando's plans for it, and of the precise location of Fernando's apartment — was amply sufficient to support probable cause to search under the tests of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).⁷ That information was, in any event, rendered even more abundantly sufficient by the independent corroborative efforts of Officer Seoane.⁸ The Commonwealth has adequately distinguished the numerous cases on which the defendant misplaced his reliance regarding this issue.

2. Sufficiency of the warrant. Both the Federal Constitution⁹ and our statutes¹⁰ require "particularity" in a warrant's identification of the place to be searched as well as the things to be seized. See Commonwealth v. Pope, 354 Mass. 625, 628-629, 241 N.E.2d 848 (1968). The precise degree of required particularity cannot be definitively stated as a generally applicable principle since it depends on the circumstances of each case (although a total failure to describe the place to be searched is manifestly inadequate, see Commonwealth v. Douglas, 399 Mass. 141, 144, 503 N.E.2d 28 [1987] [describing the place as "premises to be identified by (executing officer) prior to execution of the warrant" does not pass constitutional muster]). While "elegant precision," Commonwealth v. Hall, 366 Mass. 790, 799, 323 N.E.2d 319 (1975), or "[a] conveyancer's precision of language," Commonwealth v. Pellier, 362 Mass. 621, 625, 289 N.E.2d 892 (1972), is not required on the face of the warrant or in the supporting affidavit, and "the description given . . . [need not be] technically accurate in every detail," Commonwealth v. Cohen, 6 Mass.App.Ct. 653, 655, 382 N.E.2d 1105 (1978), neither are those documents to be read "with[] poetic license," Commonwealth v. Hall, supra at 799, 323 N.E.2d 319. The particularity of the description must be sufficient "to enable the executing officer to locate and identify the premises [to be searched] with reasonable effort . . . [so that there is no] reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant." Commonwealth v. Treadwell, 402 Mass. 355, 359, 522 N.E.2d 943 (1988), quoting from Commonwealth v. Rugaber, 369 Mass. 765, 768, 343 N.E.2d 865 (1976).

In this case, the defect in the warrant relied on by the defendants is not so much lack of particularity as ambiguity in identification of the locus to be searched, which the defendants maintain led to "[f]actual inaccuracies . . . going to the integrity" of the warrant and the affidavit. Cf. Commonwealth v. Murray, 359 Mass. 541, 548, 269 N.E.2d 641 (1971). The defendants argue that the search was invalid because the warrant, by its specific terms, commanded the search of 80 West Newton Street, not 80 West Dedham Street, so the police did not search the address stated in the warrant but rather another location altogether. Moreover, the defendants contend that the warrant should never have issued in the first place because of the unresolved ambiguities in the supporting affidavit. That affidavit — while expressly stating that it sought a warrant to search 80 West Dedham Street and setting forth several corroborating police efforts that established 80 West Dedham Street as Fernando's address and identified Fernando as the "Fernando" implicated in illicit gun traffic by Jibaro — nonetheless reported the informant as initially telling Officer Seoane that "Fernando resides in Villa Victoria[¹¹] at 80 West Newton Street apartment # 1310" (although the affidavit subsequently had Jibaro confirming that Fernando was the "Fernando" who was "the resident of 80 West Dedham St. apartment # 1310," where the...