Com. v. Welch

• Decision Date: 22 June 1995
• Citation: 651 N.E.2d 392,420 Mass. 646
• Parties: COMMONWEALTH v. Stephen P. WELCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 392

651 N.E.2d 392

420 Mass. 646

COMMONWEALTH v. Stephen P. WELCH.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 2, 1995.

Decided June 22, 1995.

Alan D. Tuttman, Somerville, for defendant.

Thomas F. Robertson, Sp. Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

The defendant was found guilty of trafficking in cocaine in violation of G.L. c. 94C, § 32E(b )(1) (1992 Ed.), and possession with intent to distribute marihuana in violation of G.L. c. 94C, § 32C (a ) (1992 Ed.). The defendant timely appealed from his convictions and from the denial of his three motions to suppress evidence obtained during searches of his person, his automobile, and a locker at a Medford fire station. We transferred the case here on our own motion. We affirm.

We summarize the facts as found by the motion judge. On January 29, 1993, an officer of the Cambridge police department received information from a confidential source that the defendant would deliver a quantity of cocaine to an individual he would meet at the corner of Massachusetts Avenue and Bigelow Street in Cambridge, approximately in front of the Central Square YMCA. The informant told the officer the defendant's name and his telephone number, identified him as a Medford firefighter, described his physical appearance, said that he would be driving a Ford station wagon, and gave the approximate time for the drug delivery as between 7:30 and 8 P.M. The informant did not reveal how he had obtained this information, and he had not previously provided such information to the police.

In response to this tip, the officer confirmed the telephone number as being listed to the defendant. Thereafter, a surveillance was set up of the area in front of the YMCA on Massachusetts Avenue. Shortly before 8 P.M., the police observed a Mercury station wagon ¹ arrive in the area. The vehicle stopped briefly on one side of the street and then made a U-turn to stop near a bank of public telephones at the corner of Massachusetts Avenue and Bigelow Street. A person, later identified as the defendant, got out of the vehicle and approached the telephones. He did not appear to make or to receive a telephone call. The police observed that his description matched the one given by the informant. They also observed a fire department decal on the rear window of the station wagon, checked the registration plate of the vehicle, and confirmed that it was registered to the defendant. After a short time at the telephones, the defendant got back into his automobile and started the engine, apparently preparing to leave.

With the details of the informant's prediction confirmed to their satisfaction, the police approached and asked the defendant to get out of his vehicle. As the defendant did so, he said, "I'm a Medford firefighter, and I'm married. Why don't you guys give me a break?" A search of the defendant's vehicle was then conducted without a warrant. The search yielded a packet of white powder, subsequently identified as cocaine, weighing just under twenty-eight grams. The police arrested the defendant, and thereafter marihuana was found in the spare tire well in the back of the station wagon, and on searching the defendant, the police found $327.

While these events were taking place, the police also had the defendant's house under surveillance. The police were able to obtain the defendant's address by checking the telephone listing supplied to them by the informant. The defendant had not appeared at his house during the time of the surveillance.

After the defendant's arrest, the officer contacted a detective of the Medford police department and reported the events which had taken place. Thereafter, the detective went to Medford fire department headquarters and spoke with the deputy fire chief, telling him that the defendant had just been arrested in Cambridge. The deputy chief stated that the defendant was supposed to have been on duty at the Park and Salem Streets station.

The detective and the deputy chief proceeded to the fire station and went to the "lieutenants' room," which is located on the second floor of the station. This room is used by lieutenants in the fire department while they are on duty at the station. The lieutenants' room is a single, open room, containing a cot and four metal lockers, as well as some other furniture. Apart from the lockers, which are assigned to individual officers, the room is a common room, shared by the various officers while on duty. The deputy chief did not know which locker was assigned to the defendant and did not know whether there were keys to the lockers.

The detective arranged to have a narcotics detection dog from the Medford police department brought to the fire station. The dog is trained to detect by smell the presence of certain illegal drugs. The dog's handler brought the dog to the lieutenants' room and the dog started to bark and to scratch when it got to the area in front of the lockers. The dog actually stopped in front of one of the lockers, one that was not identified as the defendant's, but the dog's handler testified that the dog's detection of drug odors could not be so specific as to identify a particular locker because the dog's own motions, as it grew more excited, moved the air in its vicinity, making it more difficult to distinguish one locker from the others.

On the basis of the information gathered at the station, the Medford detective applied for and was issued a search warrant for the defendant's locker in the lieutenants' room. The warrant was executed and the police discovered $3,400 in cash rolled up in a sock, a notebook purportedly tracking drug transactions, and some cocaine residue.

The defendant contends that his right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution and under art. 14 of the Massachusetts Declaration of Rights was violated by the warrantless search of his person, his automobile, and his locker, and by the seizure of evidence. He alleges that the requisite showing of probable cause required for a search and seizure based on information provided by an unnamed informant was not met. The defendant also contends that he had a reasonable expectation of privacy in his living quarters and in his locker such that the search conducted by the police and the narcotics detection dog violated his constitutional rights. The defendant further alleges that the application for the search warrant for his locker was facially deficient, thereby rendering the search warrant invalid because of the omission of an attachment, which contained material information regarding the qualifications of the narcotics detection dog. Finally, the defendant contends that the affidavit filed in support of the application for the search warrant was overly broad with respect to the area to be searched and rendered the warrant invalid. ²

1. Probable cause. In order to have had probable cause to arrest and to search the defendant and his automobile, the police would have had to have known enough facts and circumstances "to warrant a person of reasonable caution in believing" that the defendant possessed cocaine. Commonwealth v. Cast, 407 Mass. 891, 895, 556 N.E.2d 69 (1990), quoting Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982). When analyzing probable cause, we are mindful that we are dealing with probabilities, which are factual and practical considerations of everyday life. See Commonwealth v. Cast, supra, quoting Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). We also note that "[r]easonable inferences and common knowledge are appropriate considerations for determining probable cause." Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979), and cases cited.

Where an unnamed informant's tip is relied on by the police as supplying probable cause to arrest and to search, art. 14 requires that the information satisfy the two-pronged standard 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). ³ As a rule, the Commonwealth must demonstrate some of the underlying circumstances from which (a) the informant gleaned his information (the "basis of knowledge" test), and (b) the law enforcement officials could have concluded the informant was credible or reliable (the "veracity" test). Commonwealth v. Cast, supra, 407 Mass. at 896, 556 N.E.2d 69. Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985). In relying on this type of confidential information, we have said that the tip must come not only from a credible person, but the informant "must be shown to be relying on something more than a casual rumor or an individual's general reputation." Commonwealth v. Robinson, 403 Mass. 163, 165, 526 N.E.2d 778 (1988), quoting Commonwealth v. Avery, 365 Mass. 59, 63, 309 N.E.2d 497 (1974). The reliability of an informant may be bolstered by the fact that the police know the informant's identity and address or telephone number and would be able to contact him or her. See Commonwealth v. Cast, supra, 407 Mass. at 898-899, 556 N.E.2d 69. Moreover, an informant's detailed tip, plus independent police corroboration of those details, can compensate for deficiencies in either or both prongs of the Aguilar- Spinelli standard and thus satisfy the art. 14 probable cause requirement. Commonwealth v. Cast, supra at 896, 556 N.E.2d 69. Commonwealth v. Upton, supra, 394 Mass. at 375, 476 N.E.2d 548. The motion judge concluded that the police had probable cause to search the defendant and his automobile. He ruled that the police corroboration of the specific details of the informant's tip and the accuracy of the informant's predictive information were sufficient to satisfy both prongs of the Aguilar- Spinelli standard. The...