Com. v. Watson, 92-P-369

• Decision Date: 21 March 1994
• Docket Number: No. 92-P-369,92-P-369
• Citation: 629 N.E.2d 1341,36 Mass.App.Ct. 252
• Parties: COMMONWEALTH v. Rudy Raphael WATSON.
• Court: Appeals Court of Massachusetts

Page 1341

629 N.E.2d 1341

36 Mass.App.Ct. 252

COMMONWEALTH v. Rudy Raphael WATSON.

No. 92-P-369.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 7, 1993.

Decided March 21, 1994.

Bruce W. Carroll, Boston, for defendant.

Daniel A. Less, Asst. Dist. Atty., for the Com.

Before WARNER, C.J., and KASS and SMITH, JJ.

WARNER, Chief Justice.

A Superior Court jury convicted the defendant of trafficking in cocaine in an amount over twenty-eight grams (G.L. c. 94C, § 32E[b ] ). Forty-three small plastic bags containing 31.20 grams of fifty-five percent pure cocaine, along with other physical evidence, were seized during a search executed pursuant to a warrant. On appeal, the defendant contends that his motion to suppress the evidence should have been allowed because (1) the affidavit supporting the search warrant failed to establish probable cause to believe that cocaine would be found in the apartment searched, and (2) the police violated the conditions of the warrant by failing to knock and announce their presence. He also argues that his motion for a required finding of not guilty should have been granted on so much of the indictment as alleged trafficking because insufficient evidence was presented to prove that he had possession of the forty-three bags of cocaine seized during the search. We affirm.

The affidavit. The affidavit supporting the search warrant contained information provided by two unnamed informants, "A" and "B," and by police surveillance. During the second week of January, 1991, Inspector Charles Linehan of the Cambridge police narcotics unit relayed the following information to the affiant, Sergeant Ray J. Martinez of the Somerville narcotics unit. ¹ "A" had previously provided information leading to arrests and convictions for selling cocaine. He had twice given telephone numbers, automobile license numbers, and addresses leading to the seizure of cocaine, the arrests of named individuals, and one conviction. "A" reported that "Gaga," who sold drugs from a house at 30 Hanson Street in Somerville, told "A" that he had a good source of cocaine. "A" could call a certain telephone number to make a buy. "A" provided Gaga's telephone number and described Gaga as a young Hispanic man, approximately twenty to twenty-five years old, five feet eight or nine inches tall, of medium build.

"B" telephoned Sergeant Martinez within forty-eight hours before his application for a search warrant. ² Martinez recognized "B" 's voice as belonging to someone who had previously given him information about cocaine dealing in Somerville. "B" said that cocaine was being sold from the second-floor apartment of a house at 30 Hanson Street and that he had purchased cocaine there during the last couple of days. He would telephone, ask for Gaga, place his order, and drive by to pick up the drugs. He gave the same telephone number that "A" had given, and described Gaga as a Hispanic male, five feet seven or eight inches tall, about one hundred sixty pounds, with a slight mustache, in his mid-twenties. A second Hispanic male, about five feet ten inches tall, very thin, with a small mustache, in his early twenties, was in the apartment as well and spoke only in Spanish. "B" described the apartment as sparsely furnished, with a couch and small glass coffee table in the living room, a television in the kitchen, and another unfurnished room.

After receiving Inspector Linehan's information, Sergeant Martinez verified that the telephone number "A" provided was listed to Maria Lora at 30 Hanson Street. He and his partner then began a two-week surveillance of the building, which contained three apartments. Both day and night they saw automobiles double parking, people running inside, then coming out a few minutes later, sometimes via the back exit, and driving off. They all went to the second-floor apartment, which could be seen from the street. Two Hispanic-looking men frequently entered the building and remained there. One fit "A" 's and "B" 's descriptions of Gaga.

An affidavit based on information provided by a confidential informant must satisfy the two-pronged test set forth 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). Commonwealth v. Upton, 394 Mass. 363, 377, 476 N.E.2d 548 (1985). Article 14 of the Declaration of Rights of the Massachusetts Constitution requires that the affidavit "inform the magistrate of the underlying circumstances which support both the informant's basis of knowledge and his reliability or veracity." Commonwealth v. Spano, 414 Mass. 178, 184, 605 N.E.2d 1241 (1993). Both prongs of the Aguilar- Spinelli test must be independently satisfied. Independent police corroboration in the affidavit may be used to buttress a tip that fails to satisfy either or both prongs of the test. Commonwealth v. Upton, 394 Mass. at 376, 476 N.E.2d 548. Commonwealth v. Parapar, 404 Mass. 319, 321-322, 534 N.E.2d 1167 (1989).

"B" 's recitation of the procedure for obtaining drugs, including Gaga's telephone number, his own recent drug buys, the physical descriptions of Gaga, his accomplice, and of the apartment, all indicated that his information was based on personal observation. "B" 's tip satisfied the "basis of knowledge" prong of the Aguilar- Spinelli standard. See Commonwealth v. Parapar, 404 Mass. at 322, 534 N.E.2d 1167. The defendant does not argue any inadequacy in this regard. Indicia of "B" 's veracity, on the other hand, are weak. The affiant's general statement that "B" had previously given him information about drug dealing is insufficient to establish his veracity. See Commonwealth v. Rojas, 403 Mass. 483, 486, 531 N.E.2d 255 (1988); Commonwealth v. Santana, 411 Mass. 661, 664-665, 583 N.E.2d 1288 (1992). Nor does "B" 's assertion that he had purchased drugs from Gaga gain credibility as a statement against his penal interest. There is no reason to believe that this anonymous informant would realistically have feared prosecution for the offense. See Commonwealth v. Allen, 406 Mass. 575, 579-580, 549 N.E.2d 430 (1990); Commonwealth v. Melendez, 407 Mass. 53, 56-58, 551 N.E.2d 514 (1990); Commonwealth v. Filippidakis, 29 Mass.App.Ct. 679, 685, 564 N.E.2d 596 (1991). The affidavit does, however, establish the reliability of "B" 's tip through corroborating information provided by the police investigation and by "A."

The police observed a pattern of short visits to the second-floor apartment suggestive of drug trafficking. See Commonwealth v. Parapar, 404 Mass. at 323, 534 N.E.2d 1167; Commonwealth v. Soto, 35 Mass.App.Ct. 340, 344, 619 N.E.2d 629 (1993). They confirmed that a man fitting "B's" description of Gaga, and another man fitting his description of Gaga's partner, remained in the building for long periods of time. They also confirmed the telephone number "B" provided, which was not registered in the defendant's name, and thus not readily available to the general public. Contrast Commonwealth v. Motta, 34 Mass.App.Ct. 921, 922, 609 N.E.2d 1228 (1993), where the police corroborated only information "easily obtainable by an uninformed bystander."

The correspondence between "A" 's and "B" 's tips further buttressed the reliability of "B" 's information. "A" corroborated "B" 's report of the operation's location, the method of obtaining the drugs, the dealer's physical description, ³ pseudonym, and telephone number. "A" was a credible informant, having supplied information leading to drug seizures, arrests, and a conviction. See Commonwealth v. Byfield, 413 Mass. 426, 431, 597 N.E.2d 421 (1992); Commonwealth v. Mendez, 32 Mass.App.Ct. 928, 929-930, 587 N.E.2d 248 (1992). ⁴ The weakness in "A" 's tip lay in the affidavit's failure to state when "A" had obtained his information. Since drugs are easily movable, the tip must give reason to believe that the contraband will be found on the premises to be searched at the time the warrant issues. See Commonwealth v. Reddington, 395 Mass. 315, 322-323, 480 N.E.2d 6 (1985). Both "B" 's tip, which reported criminal activity occurring within four days of the search, and the police surveillance, which occurred within a few days of the search, ⁵ were sufficiently recent to indicate that the drugs would be at the apartment at the time of the search. See Commonwealth v. DiStefano, 22 Mass.App.Ct. 535, 540-541, 495 N.E.2d 328 (1986), and cases cited. These sources supported "A" 's tip by indicating that the activities "A" reported had occurred recently.

The informants' mutually corroborative information, buttressed by the information gathered during police surveillance, provided probable cause for the search. See Commonwealth v. Rojas, 403 Mass. at 488, 531 N.E.2d 255, quoting from Commonwealth v. Nowells, 390 Mass. 621, 627, 458 N.E.2d 1186 (1983) (tips that do not alone provide probable cause for the issuance of a search warrant may meet Aguilar- Spinelli standards if they contain detailed mutually corroborative information); Commonwealth v. Parapar, 404 Mass. at 323-324, 534 N.E.2d 1167 (unnamed informant's tip, corroborated by another unnamed informant and by police investigation, established probable cause); Commonwealth v. Luce, 34 Mass.App.Ct. 105, 110, 607 N.E.2d 427 (1993) (three unnamed informants' mutually corroborative information established probable cause). ⁶

The knock and announce provision. The defendant contends that the police officers failed to knock and announce their identity and purpose before executing the warrant as they were required to do. The judge conducted an evidentiary hearing on the motion to suppress, and we accept his findings of fact absent clear error. Commonwealth v. Harmon, 410 Mass. 425, 428-429, 573 N.E.2d 490 (1991).

The motion judge found that on January 25, 1991, Somerville police Detective Hyde arrived at 30 Hanson Street, apartment number 2, for the alleged purpose of making a cocaine buy. He had...