Com. v. Valdez
| Decision Date | 04 April 1988 |
| Citation | 521 N.E.2d 381,402 Mass. 65 |
| Parties | COMMONWEALTH v. Daniel VALDEZ. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert J. Bender, Asst. Dist. Atty. (Brian T. O'Keefe, Asst. Dist. Atty., with him), for Com.
John F. Tierney, Salem, for defendant.
Before HENNESSEY, C.J., and WILKINS, NOLAN and O'CONNOR, JJ.
The Commonwealth, pursuant to Mass.R.Crim.P. 15(b), as amended, 397 Mass. 1225 (1986), sought leave before a single justice of this court to appeal a Superior Court judge's allowance of a motion to suppress evidence. The single justice granted the request and referred the matter to the full court. We agree with the Commonwealth that the Superior Court judge erred in suppressing the evidence.
The defendant was arrested in a second floor apartment at 68 Rockaway Street in Lynn on July 31, 1986, and charged with, inter alia, cocaine trafficking. The police had obtained a search warrant for the premises earlier that day. The request and supporting affidavit were filed by a State police officer who had been investigating Controlled Substance Act violations full-time for four years.
The affidavit states as follows: (1) The officer met with a confidential and reliable informant on July 27, 1986. (2) The informant previously had provided information which led to the arrest of an individual wanted on an outstanding warrant for possession of cocaine. (3) At the meeting the informant related that on July 28, 1986, he had been in the apartment where the defendant was subsequently arrested and observed an "unknown Spanish male" in possession of a large bag of what the informant believed was cocaine. (4) The informant stated that the Spanish male was the apartment's occupant. (5) The officer and informant met again on August 30, 1986, and the informant related that he had returned to the apartment within the previous forty-eight hours and had observed the Spanish male in possession of "numerous small plastic bags containing cocaine." (6) The bags were, according to the informant, being offered for sale. (7) The affiant and other officers had conducted surveillance at the apartment building at 68 Rockaway Street over the "last few days and more recently the last several hours...." (8) During the surveillance the officers observed "several known drug users" entering and leaving the building in three to five minute intervals, a "type of activity," according to the affiant's experience, which is "consistent with the purchase of drugs." One of the "known drug users" was identified in the affidavit.
Following his arrest, the defendant filed a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, where a defendant makes a preliminary substantial showing that an affidavit contains intentionally false statements, or statements made with reckless disregard for the truth, which were necessary to the determination of probable cause, he is entitled to a full hearing on the issue. If intentionally false statements, or statements made with reckless disregard of the truth, are found to exist in the affidavit, and such statements were material to the finding of probable cause, they are excised. If the affidavit as redacted fails to establish probable cause, then any evidence seized pursuant to a warrant issued on the basis of the affidavit is suppressed. Franks, supra at 155-156, 98 S.Ct. at 2676.
The defendant also filed a motion to suppress the evidence obtained during execution of the warrant. As grounds for suppression, the defendant argued that the warrant had been issued without probable cause, that the affidavit was facially insufficient, that as a matter of public policy the warrant should not have issued where the supporting affidavit contained statements which, at minimum, were made with reckless disregard for their truth, and that the warrant had been improperly executed. 1
In his memorandum in support of the motion for a Franks hearing, the defendant pointed out a number of misstatements in the affidavit. First, the affidavit indicates that the affiant had a conversation with the informant on July 27, 1986, about events which occurred on July 28, 1986. Second, although the warrant was issued on July 31, 1986, the affidavit refers to a conversation between the affiant and informant on August 30, 1986. Third, the individual identified as one of the known drug users observed during surveillance was, according to the defendant, out of the country during the surveillance period. This assertion was supported by affidavit and accompanying proof.
At a preliminary hearing on the Franks issue, the Commonwealth indicated that the affidavit's date discrepancies were the result of typographical errors. Further, in its memorandum in opposition to holding a Franks hearing, the Commonwealth argued that, even if the affidavit contained a misstatement concerning the identity of one of the known drug users, that statement was immaterial to the finding of probable cause. The judge agreed with the Commonwealth's arguments and denied the defendant's motion for a Franks hearing. He concluded that "at best [the] defendant has demonstrated only negligent (typographical) errors contained in the subject affidavit, which are insufficient to mandate a Franks hearing, as well as a possibly intentional or reckless error (or misrepresentation) which was not necessary to a finding of probable cause for issuance of the search warrant."
Three weeks after the defendant's request for a Franks hearing had been denied, a hearing on his motion to suppress was held. A different judge presided at this hearing. The defendant's motion to suppress was granted.
In his order the judge did not address the defendant's arguments that the affidavit did not establish probable cause to issue the warrant, that the affidavit was facially insufficient, or that the warrant had been improperly executed. Instead he concentrated on the errors contained in the affidavit. He had heard testimony from the affiant that the erroneous dates contained in the affidavit were typographical errors 2 and that an honest mistake in identifying one of the observed known drug users had been made. 3 After finding, on sufficient evidence, that the person identified had been out of the country during the surveillance period, the judge concluded that
The Commonwealth first contends that it was error for the second judge to suppress the evidence on the basis of errors in the affidavit, after the first judge had denied the defendant's motion for a Franks hearing, and the defendant had not asked the first judge to reconsider his ruling. We disagree. Because the defendant failed to make the required preliminary showing, a Commonwealth v. Douzanis, 384 Mass. 434, 443, 425 N.E.2d 326 (1981).
While the judge was free to conduct a Franks hearing, it is not clear that he suppressed the evidence on the basis of Franks. His order does not rely on that opinion nor does it cite any of our decisions construing it. Rather, the order simply states, without citation, that, given the number of errors in the affidavit, there was no basis to "legally or morally allow for the issuance of the warrant...." Thus, the basis of the judge's order may have been, in essence, that the "[c]areless and unnecessary defects in form and construction of the affidavit ... constitute[d] a violation of G.L. c. 276, art. 14 of the Declaration of Rights of the Constitution of the Commonwealth, or the Fourth Amendment of the United States Constitution, so as to render [the] search invalid." Commonwealth v. Truax, 397 Mass. 174, 182, 490 N.E.2d 425 (1986).
We conclude that the judge erred in suppressing the evidence, whether he did so on the basis of Franks or on the presence of "[c]areless and unnecessary defects" in the affidavit. The judge's suppression order properly can be based on Franks "only if he found that the warrant affidavit contained a deliberate or reckless misrepresentation of a material fact...
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