Com. v. Zorn

• Decision Date: 03 May 2006
• Docket Number: No. 05-P-373.,05-P-373.
• Citation: 66 Mass. App. Ct. 228,846 N.E.2d 423
• Parties: COMMONWEALTH v. Robert H. ZORN.
• Court: Appeals Court of Massachusetts

846 N.E.2d 423

66 Mass. App. Ct. 228

COMMONWEALTH v. Robert H. ZORN.

No. 05-P-373.

Appeals Court of Massachusetts, Norfolk.

Argued January 13, 2006.

Decided May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Diane M. Jeffers, Dedham, for the defendant.

Present: RAPOZA, GREEN, & KATZMANN, JJ.

KATZMANN, J.

A criminal complaint was filed on May 16, 2003, charging the defendant, Robert H. Zorn, with indecent assault and battery on a child under the age of fourteen, along with several other charges. Upon reconsideration, a District Court judge allowed the defendant's motion to suppress all evidence discovered by means of a search warrant executed at the defendant's residence. The judge ruled that the information in the warrant affidavit was unreliable because the affiant received all her information through so-called "totem pole" hearsay and never spoke with the victim or her mother. We conclude that there was sufficient evidence of reliability to support probable cause and thus reverse the suppression order.

Background. On April 11, 2003, Massachusetts State police Trooper Laura Hayes filed an application for a search warrant to search the defendant's residence at 144 Ledgewood Road in Dedham. Trooper Hayes submitted a nine-page affidavit in support of the application. Much of the information averred by Trooper Hayes came to her through two independent chains of hearsay reporting the victim's account. The validity of Trooper Hayes's reliance on this hearsay is the heart of the dispute in this case.

In the affidavit, Trooper Hayes stated that she received a copy of a Department of Social Services (DSS) statement under G.L. c. 119, § 51A, on or about April 10, 2003.¹ The statement had been written by a DSS screener Catherine Murdock, who took the information from the mother of the alleged victim, an eight year old girl.² Murdock wrote that the mother filed a report with the DSS on or about April 9, 2003, claiming that approximately six weeks earlier, the defendant, the victim's paternal grandfather, had sexually assaulted the victim when she stayed at his home.

As recited in the 51A statement and recounted in the search warrant affidavit, the mother stated that on April 6, 2003, a piece of paper fell out of the pocket of the victim's twelve year old sister. The paper had the Internet address of a pornographic website written on it. The victim's sister told her parents that she had gotten the Internet address from the victim, who had said that she and the defendant had visited the website together on the night she and her sister had stayed at his residence. The victim's sister also stated that she and the victim subsequently had tried to reach the website again on the defendant's computer, but were unsuccessful. The victim confirmed this account to her mother, stating that when she and her sister had stayed at the defendant's residence in February, 2003, the defendant had showed her "porn sites" while they were alone in his basement.³ She also stated that she had sat on the defendant's lap while viewing the websites and that he had "touched [her] private spots under [her] panties, rubbing [her] with one of his fingers." She stated that the two of them had been in the basement from 11:00 P.M. to 2:00 A.M., after which the defendant had instructed her not to tell anyone about the incident. The mother also reported to Murdock that she had brought the victim to see Dr. Thomas S. Doherty, a therapist the family had used in the past, and that the victim had repeated the same story to Dr. Doherty, who had referred them to the DSS.

Trooper Hayes contacted Murdock on April 11, 2003, and Murdock confirmed that she had conducted the intake on this case and that the mother had relayed the information voluntarily. Murdock also indicated that Erin Senges, an investigator for the DSS, had been assigned to investigate the complaint of sexual abuse.

Trooper Hayes stated that after speaking with Murdock, she next spoke with Senges. Senges told Trooper Hayes that as part of the investigation, she contacted Dr. Doherty, who repeated what the victim had told him about the incident with the defendant. The victim had told him that she had sat on the defendant's knees while they had been looking at pornography from computer discs. She stated that she had become "nervous and uncomfortable," and then the defendant had put his right hand under her underwear and had begun to fondle her vagina, but there had been no penetration. She said she had felt "uncomfortable and weird," so she had gone to another room, where the defendant later had told her not to tell anyone what had just happened. The victim said she had told her sister about the pornographic website and several days later the sisters again had gone to their grandfather's house and had been able to access it. The victim's sister had written down the website on a piece of paper. This paper had fallen out of the coat pocket of the victim's sister and had been found by the victim's father. Finally, Trooper Hayes asked Senges if she had spoken with the victim or the mother directly, to which Senges replied that the DSS had been denied access to the children.

The rest of the affidavit concerned the manner in which computers store data and the reasons why there was probable cause to believe that relevant evidence was still present on the defendant's computer. The search warrant sought computer components, data files, and other specified information constituting evidence of a violation of G.L. c. 272, § 28, all located at the defendant's Dedham residence. The search warrant was granted, and was executed at the residence on April 11, 2003. The evidence collected under the warrant led to the charges filed against the defendant.

Discussion. The question is whether the totem pole hearsay evidence⁴ relied on by Trooper Hayes is sufficient to support probable cause for the warrant. To establish probable cause, "[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Donahue, 430 Mass. 710, 711-712, 723 N.E.2d 25 (2000), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 Mass. U.S. 860 (1983). Enough of the underlying circumstances must be recited for the magistrate to perform her detached function and not be simply a rubber stamp for law enforcement. See Commonwealth v. James, 424 Mass. 770, 777, 678 N.E.2d 1170 (1997). Yet, the affidavit should be interpreted as a whole, in a commonsense, rather than hypertechnical, manner. See Commonwealth v. Atchue, 393 Mass. 343, 346, 471 N.E.2d 91 (1984). "[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Ibid., quoting from United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

When hearsay is relied upon to supply probable cause, under art. 14 of the Massachusetts Declaration of Rights, we employ the Aguilar-Spinelli⁵ standard to test its reliability. See Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985); Commonwealth v. Peterson, 61 Mass.App.Ct. 632, 634, 813 N.E.2d 870 (2004). This standard requires that an affidavit contain information about (1) some of the underlying circumstances from which the informant concluded that the contraband was where it is said to be (the basis of knowledge prong), and (2) some of the underlying circumstances from which the affiant concluded that the informant was `credible' or her information `reliable' (the veracity prong). Commonwealth v. Upton, supra.⁶ The defendant bears the burden of showing that the evidence seized pursuant to a warrant was illegally obtained. See Commonwealth v. Taylor, 383 Mass. 272, 280, 418 N.E.2d 1226 (1981).

As we have noted, the thrust of the defendant's argument for suppression is that Trooper Hayes relied solely on chains of hearsay, and never spoke directly with the victim or her mother. To begin, we review the two chains of hearsay. In the first chain, the victim relayed her personal observations to her mother, who made a few observations of her own. The mother then reported the information to DSS intake screener Murdock, who documented the information and transmitted it to the affiant. In the second chain, the victim relayed her personal observations to Dr. Doherty, the family therapist, who repeated them to DSS investigator Senges, who documented them and provided them to the affiant. The facts of the alleged assault reported through each chain were essentially the same.

Turning to the first prong of the Aguilar-Spinelli standard, the defendant argues that the affidavit rests on an insufficient basis of knowledge because all the persons the affiant relied upon predicated their knowledge of the alleged assault upon the victim's account. It is well established that hearsay, standing alone, can satisfy the basis of knowledge prong, if reliable. See, e.g., Commonwealth v. Grzembski, 393 Mass. 516, 521, 471 N.E.2d 1308 (1984); Commonwealth v. Harding, 27 Mass.App.Ct. 430, 435-436, 539 N.E.2d 83 (1989); Commonwealth v. Peterson, 61 Mass.App.Ct. at 635, 813 N.E.2d 870. When dealing with a chain of hearsay, however, each link must be tested and found reliable under Aguilar-Spinelli. See Peterson, supra. See generally Smith, Criminal Practice and Procedure § 208 (2d ed.1983 & Supp.2005).

In this case, the first link in the chain, the victim, presumptively meets the basis of knowledge test because her information was based upon personal observation. See, e.g., Commonwealth v. Allen, 406 Mass. 575, 578, 549 N.E.2d 430 (1990). The other informants in both chains all based their knowledge on the victim's...