Com. v. Truax

• Decision Date: 25 March 1986
• Docket Number: No. W-3877,W-3877
• Citation: 490 N.E.2d 425,397 Mass. 174
• Parties: COMMONWEALTH v. Scott TRUAX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 425

490 N.E.2d 425

397 Mass. 174

COMMONWEALTH v. Scott TRUAX.

No. W-3877.

Supreme Judicial Court of Massachusetts Worcester.

Argued Dec. 2, 1985.

Decided March 25, 1986.

Claudia R. Sullivan, Asst. Dist. Atty., for Com.

Jeffrey M. Chasse (Robert E. George, Sturbridge, with him) for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

This appeal raises two related issues: first, whether the affidavit of a police officer was so defective in form and construction that it failed to establish probable cause to support the issuance of a search warrant; and, second, whether certain asserted defects in the warrant itself rendered invalid the warrant and the search conducted pursuant to the warrant. Following the execution of a search warrant at his home, the defendant was arrested on complaints charging him with possession of marihuana, possession of a controlled substance (marihuana) with intent to distribute, and possession of fireworks. Subsequently, the defendant's motion to suppress items seized pursuant to the search warrant was allowed by a District Court judge. The Commonwealth appealed, see G.L. c. 278, § 28E (1984 ed.); Mass.R.Crim.P. 15(a ), 378 Mass. 882 (1979), and we transferred the matter here on our own motion. We reverse.

We summarize the facts relevant to this appeal from the affidavit in support of the application for a search warrant. On November 30, 1983, the State Police received a letter from an anonymous informant. The letter stated that Scott Truax of Shepard Road in Sturbridge sold marihuana and hashish in large quantities to dealers in bars (drinking establishments) in Sturbridge and Stockbridge. According to the letter, the marihuana and hashish were obtained from the defendant's wife's sister who resides in Hawaii. In the letter, the writer alleged that the sister had sent four shipments of marihuana and hashish to the defendant during the preceding six months through the United States Post Office at Southbridge and that the defendant had recently received a four-pound shipment of marihuana and a substantial amount of hashish. The writer suggested that the police verify that the defendant's sister-in-law was in Hawaii by checking the defendant's telephone bills. Additionally, the writer stated that two of the defendant's brothers, one of whom was married to the police chief's daughter, sold drugs for the defendant. The informant's letter contained details such as the location of the defendant's money (the freezer) and the location of the defendant's scale (on top of the refrigerator in plain sight) and described the defendant's house as a "white stucco tudor with brown trim." The letter was prefaced by the informant's statement that the information was being provided "because of what [the defendant] did to [the informant's] brother."

On the day the letter was received, State Trooper Bruce P. Pinto verified that Scott Truax lived at 58 Shepard Road, Sturbridge, by checking records in the town hall. The trooper drove to that address and observed that the defendant's house was a "white Tudor stucco with brown trim." In addition, the trooper applied for a "mail cover" for all packages received by the defendant at the Shepard Street address and requested, through the district attorney's office, a list of toll calls made from the defendant's address.

On December 15, 1983, the trooper received a list of toll calls made from the defendant's residence. The list included six telephone calls to Olaa, Hawaii, during September, October, and November, 1983.

On December 19, 1983, the postal inspector informed the State police that a package addressed to the defendant and his wife was being held at the Sturbridge post office. Trooper Pinto, accompanied by another trooper and a "K-9" dog, Shadow, met the postal inspector and the Sturbridge postmaster at the Sturbridge post office. At the post office, the package addressed to the defendant was placed with six other packages and three mail baskets on the loading dock. K-9 Shadow indicated that the defendant's package contained marihuana. K-9 Shadow, a certified narcotic detector dog, had found marihuana successfully on two previous occasions, February 5, 1981, and June 4, 1982, resulting in a student's suspension from school in one case and a criminal conviction in the other.

Shortly after the package was delivered to the defendant's home on December 19, at approximately 5:30 P.M., the police conducted a search of the defendant's home pursuant to a warrant issued the same day. A quantity of marihuana in various forms was seized, along with several types of fireworks (four rockets, four boxes of sparklers, and thirty-five packages of "M80's").

In his findings in support of the ruling allowing the defendant's motion to suppress the items seized during the December 19 search of the defendant's home, the judge cited various defects in the affidavit and warrant as rendering the warrant and subsequent search invalid. On appeal the Commonwealth argues that the judge improperly allowed the defendant's motion to suppress because the affidavit and warrant, when each is viewed as a whole, contained adequate descriptions of the location to be searched, and the items to be seized, to satisfy constitutional and statutory requirements. While we agree with the judge that there were defects in the affidavit and the warrant, we disagree with his conclusion that the defects in the affidavit and warrant invalidated the warrant and search.

1. The affidavit.

Two issues are presented by the Commonwealth's challenge to the judge's rulings concerning the validity of the affidavit. First, we consider whether, disregarding the formal defects in the affidavit upon which the judge centered in his rulings, the facts alleged in the affidavit established probable cause. In cases like this one where the affidavit in support of an application for a search warrant is based on information from an unidentified informant, the magistrate ordinarily must be informed of both the basis of the informant's knowledge and the circumstances from which the affiant concluded that the informant was credible or the information was reliable. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969). Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Commonwealth v. Upton, 394 Mass. 363, 375-376, 476 N.E.2d 548 (1985) (Upton II ). However, other facts alleged in the affidavit corroborating the tip can be used to support a finding of probable cause. Spinelli, supra, 393 U.S. at 415, 89 S.Ct. at 588. Upton II, supra, 394 Mass. at 375, 476 N.E.2d 548. Commonwealth v. Stevens, 362 Mass. 24, 27-28, 283 N.E.2d 673 (1972). Such corroborating allegations were included in the affidavit at issue in the instant case. The State trooper assigned to investigate the allegations contained in the anonymous letter verified that the defendant resided at the address provided in the letter, that the defendant's residence conformed to the description given in the letter, and that, as the letter had indicated, calls to Hawaii were made from the defendant's home. Finally, through a mail cover at the Sturbridge post office and the use of a trained narcotic detector dog, the trooper was able to determine that a package addressed to the Truaxes with a return address of Hawaii contained marihuana. These facts, corroborated by independent police investigation, served to lend credibility to the information contained in the anonymous letter.

Considered together, the facts on which the affidavit was based were sufficient to establish probable cause. Cf. Commonwealth v. Kaufman, 381 Mass. 301, 303-304, 408 N.E.2d 871 (1980). Proof beyond a reasonable doubt is not required to establish probable cause. Commonwealth v. Stewart, 358 Mass. 747, 749, 267 N.E.2d 213 (1971). See Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984); Commonwealth v. Haas, 373 Mass. 545, 555, 369 N.E.2d 692 (1977). To establish probable cause, an affidavit must allege sufficient facts and circumstances "for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched." Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983); Upton II, supra, 394 Mass. at 370-371, 476 N.E.2d 548. "In each case, the basic question for the magistrate is whether he has a substantial basis for concluding that any of the articles described in the warrant are probably in the place to be searched.... Strong reason to suspect is not adequate" (citations omitted). Upton II, supra at 370, 476 N.E.2d 548. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Commonwealth v. Haas, supra, 373 Mass. at 555, 369 N.E.2d 692. The circumstances here clearly meet this standard for determining the existence of probable cause.

Since the factual circumstances of this case cumulatively established probable cause, the second matter to be resolved regarding the affidavit is the Commonwealth's objection to the judge's ruling that certain formal defects in the affidavit would prevent a neutral and detached magistrate from making a determination that probable cause existed to justify the issuance of a search warrant. See Commonwealth v. Sheppard, 394 Mass. 381, 389, 476 N.E.2d 541 (1985) (Sheppard II ); Upton II, supra, 394 Mass. at 377, 476 N.E.2d 548. Section 2B of G.L. c. 276 (1984 ed.), requires that an affidavit be submitted to support an application for a search warrant which "shall contain the facts, information, and circumstances upon which [the affiant] relies to establish sufficient grounds for the issuance of the warrant." We have said that the purpose of G.L. c. 276, § 2B, is to make sure that the Commonwealth could demonstrate by...