Com. v. Upton

• Citation: 458 N.E.2d 717,390 Mass. 562
• Parties: COMMONWEALTH v. George L. UPTON.
• Decision Date: 12 December 1983
• Court: United States State Supreme Judicial Court of Massachusetts

Page 717

458 N.E.2d 717

390 Mass. 562

COMMONWEALTH v. George L. UPTON.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Jan. 3 and Sept. 12, 1983.

Decided Dec. 12, 1983.

Nancy Gertner, Boston (Susan Sturm and Josephine Ross, Boston, with her), for defendant.

Gary A. Nickerson, Asst. Dist. Atty., for the Commonwealth.

Francis X. Bellotti, Atty. Gen. and others, amici curiae, submitted a brief.

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

WILKINS, Justice.

The defendant, in his appeal from numerous convictions, principally challenges the lawfulness of a search conducted pursuant to a search warrant. He asserts that the affidavit presented in support of that search warrant failed to establish probable cause to issue it. The search produced substantial amounts of stolen property that led to the several indictments on which the defendant was convicted. We conclude that, under controlling principles announced by the Supreme Court of the United States, the search was unreasonable in violation of the Fourth Amendment to the Constitution of the United States because there was no demonstrated probable cause to issue the search warrant. We thus reverse the convictions. ¹

About noon on September 11, 1980, Lieutenant Beland of the Yarmouth police department assisted in the execution of a search warrant for a room at the Snug Harbor Motel in West Yarmouth. The search warrant mentioned one Kelleher. The police found various items, some containing the name of one Pendergast whose premises had been burglarized earlier that month. In the middle of the afternoon, Beland received a telephone call from an unidentified woman who, according to Beland's affidavit in support of the warrant, said that "a motor home full of stolen stuff [is] parked behind # 5 Jefferson Ave., the home of [the defendant] and his mother." The affidavit, the significant portions of which appear in the margin, ² sets forth the conversation further. The informant described the stolen items generally and said that the defendant was going to move the motor home because Kelleher's motel room had been raided. She said the defendant had purchased the stolen items from Kelleher. She said she had seen the items, although she did not state when and where she had seen them. In further conversation, she agreed to Beland's suggestion that she was Lynn Alberico, a former girl friend of the defendant. Later that day Beland went to 5 Jefferson Avenue and saw a motor home parked on the premises. He then prepared the application for a search warrant, obtained the warrant while other officers watched the premises, and, with four other officers, executed the warrant on the evening of the same day. Numerous items were seized in the course of searching the motor home.

The defendant filed two motions to suppress the evidence seized at the motor home. A Superior Court judge heard and denied the first motion, filed with respect to charges set forth in an initial group of indictments. When further indictments were returned involving additional charges against the defendant, he filed another motion to suppress. A second Superior Court judge heard that motion and denied it. The judges' findings concerning the issuance of the warrant to search the motor home were substantially the same. ³

At the trial before a third Superior Court judge, Kelleher testified to his participation in breaking and entering certain homes with one Jimmy Ellis. He testified that the defendant served as a lookout and that the defendant paid him for the stolen objects which were taken to the motor home. The defendant sought unsuccessfully to obtain immunity from the trial judge for Jimmy Ellis. The defendant asserted that Ellis would testify that the defendant had nothing to do with the house breaks at the Pendergast residences and that Kelleher had disposed of the stolen property after dropping Ellis off at his house. We turn first to the defendant's challenge to the search warrant.

1. This case was argued before us in January, 1983, in terms of the application to this case of principles expressed in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), concerning search warrants issued on the basis of disclosure by unnamed informants. On June 8, 1983, the Supreme Court of the United States decided Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The opinion of the Court in the Gates case, joined in by five Justices, states that the existence of probable cause to issue a search warrant should be determined by considering the "totality of the circumstances" shown in the affidavit in support of the issuance of the warrant. Id. at 2332. In so stating the standard to be applied where an affidavit relied on an informant's tip, the Court repudiated overly technical interpretations of the "two-pronged test" generally understood to be applicable under that Court's opinions in the Aguilar and Spinelli cases. The "two-pronged test" required that the magistrate be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was "credible" or his information "reliable" (the veracity test). Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. at 1513. If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause. Spinelli v. United States, supra 393 U.S. at 415, 89 S.Ct. at 588.

In the Gates opinion, the Court noted that "veracity" and "basis of knowledge" are highly relevant in determining the value of an informant's disclosures, but it rejected the idea that these were "separate and independent requirements to be rigidly exacted in every case." Illinois v. Gates, supra 103 S.Ct. at 2327-2328. "[A] deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 2329. As the Court viewed the matter, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed. Jones v. United States, [362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) ] .... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli." Illinois v. Gates, supra 103 S.Ct. at 2332. In view of this new standard, said to be "flexible" and "easily applied," like some commercial product, this court issued an order on June 30, 1983, asking for supplemental briefs and further oral argument in light of the Gates opinion. ⁴

It is not clear that the Gates opinion has announced a significant change in the appropriate Fourth Amendment treatment of applications for search warrants. Looking at what the Court did on the facts before it, and rejecting an expansive view of certain general statements not essential to the decision, we conclude that the Gates opinion deals principally with what corroboration of an informant's tip, not adequate by itself, will be sufficient to meet probable cause standards. The Court granted that the affidavit in the Gates case "might well not permit a sufficiently clear inference regarding the [anonymous informant's] 'basis of knowledge' " (Illinois v. Gates, supra at 2326), but concluded that corroboration of details in the tip, including prediction of the defendants' future conduct, was sufficient to warrant a finding of probable cause. In this respect, the Court's treatment of the information disclosed was similar to the treatment of the informant's information in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where the accurate prediction of the defendant's future, seemingly innocent conduct provided a substantial basis for crediting the informant's hearsay information. ⁵

We do not view the Gates opinion as decreeing a standardless "totality of the circumstances" test. The informant's veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensible to a finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant's "veracity" and any direct statement of the "basis of [his] knowledge." We shall analyze the affidavit in support of the application for a warrant to search the defendant's premises in light of our view of the Gates opinion, mindful that we should not have a "grudging or negative attitude ... towards warrants" (United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 [1965] ), that we should pay great deference to the magistrate's determination of probable cause (Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 [1969] ), and that a "practical, common-sense judgment [is] called for in making a probable cause determination" (Illinois v. Gates, supra 103 S.Ct. at 2335).

Prior to the Gates opinion, we might have been inclined to go directly to the veracity test and to pass by the question whether the...