Commonwealth v. ALFONSO A., A JUVENILE.

• Decision Date: 08 October 2002
• Citation: 780 NE 2d 1244,438 Mass. 372
• Parties: COMMONWEALTH v. ALFONSO A., a., juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 372

780 NE 2d 1244

COMMONWEALTH v. ALFONSO A., a., juvenile.

Supreme Judicial Court of Massachusetts, Suffolk.

October 8, 2002.

January 6, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Alex G. Philipson, Assistant District Attorney, for the Commonwealth.

Kenneth J. King for the juvenile.

SOSMAN, J.

The juvenile was adjudicated a delinquent on a complaint charging possession of a firearm.¹ On appeal, the juvenile claimed that his motion to suppress physical evidence and his motion to suppress statements were erroneously denied. The Appeals Court reversed, opining that both motions to suppress should have been allowed. Commonwealth v. Alfonso A., 53 Mass. App. Ct. 279, 295 (2001). We granted the Commonwealth's application for further appellate review. For the following reasons, we conclude that the motion to suppress physical evidence was properly denied, and that further findings are required with respect to the motion to suppress the juvenile's statements. We therefore remand the matter for further proceedings.

1. Motion to suppress physical evidence. On January 28, 1999, the police executed a search warrant at 21 Montvale Avenue in the Roslindale section of Boston, seizing three twelve-gauge shotguns, two twenty-gauge shotguns, and a pellet gun. The warrant was based on the affidavit of an experienced Boston police detective. The affidavit recited the following facts.

Within the two hours preceding the preparation of the affidavit, the detective had received information from a source whose whereabouts and identity were known to the detective but who wished to remain anonymous. The informant stated that he had "observed six rifles, three shotguns, two rifles, and one air pellet rifle" at the 21 Montvale Street address. There were two persons then at the house. The informant knew their first names ("Ricky" and the juvenile, whom we refer to by the pseudonym "Alfonso"), but no last names. He reported that "Ricky" lived in the house with his parents, but did not think that the parents were presently in the house. "Alfonso" had stated "that he took the guns in a Breaking & Entering on the 27th of January, 1999, in West Roxbury." In fact, the detective knew that there had been a break-in at 24 Chestnut Street in the West Roxbury section of Boston, on that date (which was the day prior to the informant's report), in which three twelve-gauge shotguns, two twenty-gauge shotguns, and a pellet gun had been taken. The informant reported that "Ricky" was going to put the guns in a black bag and store them in the garage. Meanwhile, "Alfonso" was making phone calls to find a buyer for the weapons. "Alfonso's" asking price was $300 to $400 a weapon. According to the informant, "Alfonso" had scheduled a meeting later that night with two individuals for a possible sale of the weapons. Based on that information, the detective sought and obtained a warrant to search the premises for "6 rifles, black bag, drugs and drug paraphernalia."²

The juvenile contends that the information from the informant failed to satisfy either prong of the "two pronged test" of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). See Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985). Like the Appeals Court, we readily conclude that the affidavit satisfied the "basis of knowledge" prong of the Aguilar-Spinelli test. Commonwealth v. Alfonso A., supra at 281-282. In context, it is apparent that the informant was reporting his own observation of the guns in question (describing the specific types and number of weapons he had seen, and the nature, color, and location of the container in which they were being placed) and his own overhearing of both the juvenile's admission as to how he had obtained the guns (including the date and location of the break-in) and the juvenile's telephone calls seeking to arrange sales of the guns (including such details as prices and the approximate time of a planned meeting with some potential purchasers). The affidavit expressly states that the informant "observed" the guns, and the level of detail provided is consistent with personal observation, not mere recitation of a casual rumor. See Commonwealth v. Welch, 420 Mass. 646, 651-652 (1995) (level of detail permits inference that informant "had direct knowledge"); Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting Spinelli v. United States, supra at 416 ("it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation").

With regard to his conclusion that the veracity prong of the Aguilar-Spinelli test had been satisfied, the motion judge relied on the extent of detail in the informant's information, police corroboration of a portion of that detail, and police knowledge of the identity and whereabouts of the informant. In combination, those factors provided sufficient reason to treat the informant's information as reliable. While we must, of necessity, parse each of the items proffered as evidence of the informant's reliability, we must simultaneously bear in mind that the Aguilar-Spinelli test is not to be applied "hypertechnically." Commonwealth v. Upton, supra at 374. Rather, we consider whether, taken as a whole and read in a commonsense fashion, the affidavit adequately demonstrates that the informant has provided reliable information. See Commonwealth v. Germain, 396 Mass. 413, 418 (1985), quoting United States v. Ventresca, 380 U.S. 102, 108-109 (1965) (search warrant affidavit should be interpreted "in a commonsense and realistic fashion").

The informant here was not anonymous. The police knew his "identity" and his "whereabouts." Although the informant was not named in the affidavit,³ he was not an untraceable, unknown source. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 103-104 (1997) (informant "reachable by authorities"); Commonwealth v. Welch, 420 Mass. 646, 651 (1995) (police "would be able to contact" informant); Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992), quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984) ("identification of the instant informant to the police strengthened his or her credibility and `carrie[d] with it indicia of reliability of the informant'"); Commonwealth v. Cast, 407 Mass. 891, 898-899 (1990) (informant met with Federal agents and gave telephone number at which he was later reached); Commonwealth v. Love, 56 Mass. App. Ct. 229, 232-234 (2002), and cases cited.⁴ Although police knowledge of the informant's "identity" and "whereabouts" would not be adequate standing alone to confirm the informant's reliability, it is a factor that weighs in favor of reliability.

The information provided was detailed. As discussed above, the details provided by the informant pertained to many aspects of what he had heard and seen. As to the contraband itself, the informant gave details of the number and type of guns seen, the nature of the container in which they were being placed, and the precise location where they were being stored. He identified, albeit by first name only, the two persons there, indicating that it was the home of one of them. He provided detail of how and when the guns had been obtained, i.e., by way of a break-in in West Roxbury the day before. He identified that one of the named occupants of the house was making telephone calls to locate a buyer for the guns; he knew the price being asked; and he knew of a planned meeting that night with two potential buyers. See Commonwealth v. Va Meng Joe, supra at 103, and cases cited. While we agree with the Appeals Court that detail, by itself, does not ordinarily suffice to establish reliability, Commonwealth v. Alfonso A., supra at 284, citing Commonwealth v. Oliveira, 35 Mass. App. Ct. 645, 648 (1993),⁵ it remains a factor in the over-all assessment of the informant's reliability. See Commonwealth v. Aarhus, 387 Mass. 735, 744 (1982) ("precise description of the location of the knife from an informant known to the authorities tended to demonstrate the reliability of his information").

Here, a critical component of the detail provided by the known informant was corroborated by police knowledge of the break-in the day before. While detail alone does not confirm the informant's reliability (see note 5, supra), police corroboration of that detail is a strong indicator of reliability. See Commonwealth v. Alfonso A., supra at 284-286, and cases cited. The informant's description of the weapons, and the reported admission by the juvenile that they had been taken during a break-in the previous day at a location in West Roxbury, matched the weapons that the police knew had been taken during a break-in at 24 Chestnut Street, West Roxbury, on that date.

The juvenile argues that the number of weapons did not match, interpreting the affidavit as describing twelve guns possessed by "Ricky" and "Alfonso," as compared with the six guns taken in the West Roxbury incident known to the police. The juvenile misinterprets the plain meaning of the affidavit. The affidavit refers to the informant observing "six rifles," which are then more precisely described as "three shotguns, two rifles, and one air pellet rifle." If, as the juvenile contends, the "six rifles" are in addition to the "three shotguns, two rifles, and one air pellet rifle," there would not be any separate reference to both "six rifles" and "two rifles" — that category of weapons would have been described simply as "eight rifles." Without needing to dissect the grammar and punctuation of the affidavit, the application itself, in support of which the affidavit was submitted, unambiguously requested issuance of a warrant to search for "6 rifles," not twelve rifles. The number of weapons seen by the...