Com. v. Vynorius

• Citation: 369 Mass. 17,336 N.E.2d 898
• Parties: COMMONWEALTH v. Victor VYNORIUS.
• Decision Date: 03 November 1975
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 898

336 N.E.2d 898

369 Mass. 17

COMMONWEALTH

v. Victor VYNORIUS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 15, 1975.

Decided Nov. 3, 1975.

Henry A. Follen, Jr., Watertown, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

After a jury waived trial in a jury of six session of the District Court, the defendant was found guilty on complaints charging him with possession of certain controlled substances ¹ and possession of marihuana with intent to distribute. G.L. c. 94C, §§ 32, 34. The case is before us on the defendant's bill of exceptions. G.L. c. 218, § 27A. ²

On February 15, 1974, police officers executed a warrant to search an apartment in Waltham in which the defendant resided. In the course of their search, they discovered and seized from the defendant's bedroom quantities of marihuana, LSD and amphetamines and various paraphernalia useful in the storage, handling and consumption of these substances. The defendant was on the premises at the time of the search. Prior to trial, the defendant seasonably moved to suppress all evidence seized in the course of this search. The judge denied his motion, and he saved an exception to such denial.

The bill of exceptions raises a single issue. The defendant contends that the affidavit submitted in support of the police application for the search warrant did not contain 'facts' sufficient to establish probable cause for a search. Specifically, he argues (1) that the affidavit, which was based in part on hearsay information supplied by an informant, did not satisfy the two-pronged test for reliability of such hearsay developed 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, 27 L.Ed.2d 637 (1969), and (2) that the allegations of the affidavit taken as a whole would not support an inference that a controlled substance, i.e., marihuana, was concealed in the premises to be searched at the time of the issuance of the warrant. ³ Pertinent portions of the affidavit are reproduced in the margin. ⁴

Under the 'two-pronged' test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), the police may rely on hearsay information or informant's tips in their affidavits supporting applications for warrants if the affidavits inform the 'magistrate' ⁵ issuing the warrant of 'some of the underlying circumstances' from which the informant derived the information he supplied the affiant and 'some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable. " See Spinelli v States, 393 U.S. 410, 415--416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Commonwealth v. Hall,--- Mass. ---, ---, ^a 323 N.E.2d 319 (1975), and cases cited; Commonwealth v. Stevens, 362 Mass. 24, 26--27, 281 N.E.2d 224 (1972); Commonwealth v. Stewart, 358 Mass. 747, 750, 267 N.E.2d 213 (1971). If the informant's tip, standing alone, is found to be insufficiently reliable under Aguilar, other independent allegations contained in the affidavit which corroborate the tip should then be considered. Commonwealth v. Anderson,362 Mass. 74, 75--76, 284 N.E.2d 219 (1972). Commonwealth v. Avery,--- Mass. ---, ---, ^b 309 N.E.2d 497 (1974). Spinelli v. United States, supra 393 U.S. at 415, 89 S.Ct. 584.

The principal information supplied by the informant here satisfies the first 'prong' of the Aguilar test. The affidavit relates in detail the informant's story of a sale of marihuana to him by Billy Brody on February 12, 1974, and mentions a previous sale outside the house at 129 Brown Street. It could reasonably be inferred that the informant obtained his information concerning Billy Brody's background in the course of their drug dealings. Of the information supplied by the informant, only the informant's conclusion that Billy Brody lived in the house at 129 Brown Street is unacceptable under the first prong of the Aguilar test. The fact that business was transacted outside the house cannot establish that the seller lived within.

The instant affidavit also recites sufficient information to establish the reliability of the informant, the second 'prong' of the Aguilar test. It describes a past occasion on which the informant had furnished police with accurate information: the information assisted a police investigation and resulted in the recovery of a stolen battery. See Commonwealth v. Hall, --- Mass. ---, ---, ^c 323 N.E.2d 319 (1975); Commonwealth v. Snow, 363 Mass. 778, 783, 298 N.E.2d 804 (1973); Commonwealth v. Kane, 362 Mass. 656, 659, 290 N.E.2d 164 (1972); Commonwealth v. Anderson, 362 Mass. 74, 76, 284 N.E.2d 219 (1972). The affidavit further describes the incident on February 15, 1974, in which the informant, when accosted by police, told the police of his transactions with Billy Brody and, at the same time, admitted participation in violations of the drug laws. Such admissions 'carry their own indicia of credibility--sufficient at least to support a finding of probable cause to search.' United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971) (opinion of Burger, C.J.). Commonwealth v. Stewart, 358 Mass. 747, 752, 267 N.E.2d 213 (1971). United States v. Star, 470 F.2d 1214, 1217 (9th Cir. 1972).

Other information set forth in the affidavit corroborates the informant's story and provides additional grounds for deeming him reliable. Details of the informant's story match the pattern of facts developed by independent police investigations. See Commonwealth v. Stewart, supra 358 Mass. at 752, 267 N.E.2d 213; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). According to information supplied by the affiant, ⁶ the background of William ⁷ Vynorius who lived at the address mentioned by the informant, corresponded closely to that of the informant's marihuana salesman, who used the alias 'Billy Brody.' Vynorius was approximately the same age as Billy Brody and had transferred to the Waltham school system at approximately the time the informant said that Billy Brody had. Like Brody, William Vynorius attended the Waltham Vocational School. Information received by Sergeant Chiasson, another policeman, presumed reliable as a source of information (see United States v. Ventrescas, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)), from other, albeit anonymous and not clearly reliable (see United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (opinion of Burger, C.J.)), sources confirmed that a young man using the name Billy Brody, whose description agreed with that given by the informant, was selling marihuana in the Waltham neighborhood where the informant's purchases had taken place.

Given the reliability of the informant and his information, we turn now to an examination of the sufficiency of the affidavit. In this case, unlike the typical search and seizure case, there is no direct evidence that contraband was stored in the premises. The informant did not observe marihuana in the apartment searched or draw the inference that marihuana was stored there. The inference was drawn by the police and the megistrate issuing the warrant. We must therefore address the question whether, accepting the reliable factual allegations in the affidavit as true, there was probable cause to believe that marijuana was stored in the apartment at the time of the application. We hold that there was such probable cause.

'In dealing with probable cause . . . as the very name implies, we deal with probabilities. . . . 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief . . ..' . . . And this 'means less than evidence which would justify condemnation' or conviction. . . . Probable cause exists where 'the facts and circumstances within . . . (the officers') knowledge and of which . . . (he) had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that" the object of the search is probably on the person or premises to be searched at the time the warrant is issued. Commonwealth v. Stewart, 358 Mass. 747, 749, 267 N.E.2d 213, 214 (1971), quoting from Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the instant case, the affidavit contained, inter alia, the following information relevant to probable cause: that a young man using the name Billy Brody was selling marihuana in a neighborhood in Waltham; that one William Vynorius lived in an apartment in a house at 129 Brown Street in Waltham (Cf. United States v. Bailey, 458 F.2d 408 412 (9th Cir. 1972)); that at some indeterminate time Billy Brody had sold marihuana to a reliable police informant outside the house; that three days prior to the request for the search warrant Billy Brody made a sale of marihuana to the informant at a playground within a ten-minute walk from the apartment; and that Billy Brody had walked from the playground in the direction of the apartment and had returned approximately twenty minutes later with the quantity of marihuana sold. From the sale outside William Vynorius's residence and other information disclosing the close similarity in background and age of Billy Brody and William Vynorius, ⁸ a magistrate could conclude that it was likely that 'Billy Brody' was a pseudonym for William Vynorius. It would then be reasonable to infer from the conclusion and the other information in the affidavit bearing on the location of the seller's marihuana that William Vynorius, alias Billy Brody, had concealed the valuable marihuana for the sales to the informant in the above...