Commonwealth v. Alphonse

• Decision Date: 18 February 2022
• Docket Number: 20-P-1323
• Citation: 100 Mass.App.Ct. 1125,182 N.E.3d 345 (Table)
• Parties: COMMONWEALTH v. Jammy Montine ALPHONSE.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1125

182 N.E.3d 345 (Table)

COMMONWEALTH

v.Jammy Montine ALPHONSE.

20-P-1323

Appeals Court of Massachusetts.

Entered: February 18, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with trafficking one hundred grams or more of cocaine in violation of G. L. c. 94C, § 32E (b ), possession of a firearm without a firearm identification card in violation of G. L. c. 269, § 10 (h ), possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10 (h ) (1), possession of a firearm while in the commission of a felony in violation of G. L. c. 265, § 18B, and possession of counterfeit credit cards in violation of G. L. c. 266, § 37C. The defendant moved to suppress 2,023 grams of cocaine, paraphernalia consistent with trafficking, $77,630 in cash, a revolver, ammunition, a laptop computer with a credit card reader/encoder attached, an embossing machine, and various other items seized from the defendant's residence in Revere pursuant to a search warrant. The motion was allowed, and the Commonwealth has brought this interlocutory appeal, which was allowed by a single justice of the Supreme Judicial Court and referred to this court. We reverse the order allowing the motion to suppress.²

Background. The search warrant at issue permitted a search of 540 Revere Beach Boulevard, apartment 503, Revere, for "credit card embossing machines, credit card reader/encoder devices, documents indicating residency, any photo identification, credit cards, cards that can be magnetically encoded, credit card receipts, any credit card applications, documents related to the purchase of furniture from Bernie and Phyl's, notes containing credit card numbers," as well as the furniture from two orders placed at Bernie and Phyl's. A judge of the Superior Court concluded that the affidavit in support of the search warrant lacked probable cause.

Whether an affidavit contains probable cause to justify issuance of a search warrant is a question of law, reviewed de novo. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). The "inquiry as to the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit" (quotation and citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). Consequently, we turn to the affidavit of Detective Frank Morello of the Saugus police department submitted in support of the search warrant application.

In his affidavit, Detective Morello stated the following: On December 26, 2017, the Saugus police received information from an attorney that represented Bernie and Phyl's Furniture regarding two fraudulent purchases of furniture that had occurred in October 2017. On October 12, 2017, an order was placed by telephone to the Saugus Bernie and Phyl's store under the name Michael Alphonse. The order totaled $2,937.87, and was charged to a Visa credit card. The furniture was delivered on October 17, 2017. The delivery address was 5000 Inwood Drive in Woburn. At the time of delivery, a "Mr. Alphonse" signed the delivery receipt. The next day, "the credit card company disputed the charges and Bernie and Phyl's received a chargeback notice."

An order was placed by telephone to the same store on October 18, 2017, by a person identifying himself as Jeffrey Menard. This order totaled $3,977.10, and was charged to a Mastercard. Delivery was made on October 20, 2017, to 6000 Inwood Drive, Woburn. On November 7, 2017, "Bernie and Phyl's received notice of an additional chargeback." On December 6, 2017, a Bernie and Phyl's employee went to 6000 Inwood Drive, apartment 6301, "and spoke to a person there who claimed to be Mr. Menard, but not Jeffrey Menard. That person told the Bernie and Phyl's employee that he had to get ready for school, and he never came back to the door."

The detective discovered through a "public records check" that a person named Jammy Alphonse was reported to use the address 6000 Inwood Drive, apartment 6301, Woburn. He also discovered through the same public records check that Alphonse had a prior address of 14A Arlington Street, Everett, and that at the same time that Alphonse was reported to live at the Everett address, "a second person was attached to the same address. That person's name was Tedje Menard."

The defendant challenges the reliability of the information from the public records check, challenging both the basis of the officer's knowledge and the veracity of the information. The only relevance of this information, however, is that it provided the detective with the defendant's name, Jammy Alphonse. The relationship of Alphonse to the apartment was corroborated when on September 21, 2018, as described in the affidavit, the detective "requested the assistance of U.S. Postal Inspectors" to determine whether Jammy Alphonse or Tedje Menard were currently receiving mail at 6000 Inwood Drive, apartment 6301, in Woburn. On February 23, 2018, the affidavit reports, the detective received a reply from a postal inspector which indicated that Jammy Alphonse was currently receiving mail at that address, but that Menard had not received anything between February 21 and 23, 2018. We would caution police to provide more detail in explaining the nature of records checks and online searches they perform. However, even if the information from the records check linking the defendant to the apartment in Woburn would, by itself, have been unreliable, it was corroborated here by the postal inspector, such that the affidavit contains reliable information linking the defendant and the apartment.

The affidavit also recites that the detective did a police records search of Jammy Alphonse and discovered a police report from the Taunton police department dated October 4, 2017 (police report). The police report included the Taunton police incident number. According to the affidavit, the police report detailed an incident in which fraudulent credit cards were used in an attempt to obtain furniture from Jordan's Furniture, also in October 2017. The affidavit states that "Taunton Detective Robert McDonald was made aware of the fraudulent purchase and established surveillance at the time the furniture was to be picked up. A man, later identified as Jammy Alphonse, arrived on scene and presented himself to be Stanley Julce, a man who was authorized to pick up the furniture order." Ultimately, according to the police report as recounted in the affidavit, Alphonse and two codefendants were arrested. Alphonse was charged with operating a motor vehicle with a suspended license (subsequent), credit card fraud over $250, larceny over $250 by false pretense, identity theft, and attempt to commit a crime.

The police report, of course, is hearsay, and the defendant challenges both the affiant's basis of knowledge of the information in it, and the veracity of that information. See Aguilar v. Texas, 378 U.S. 108, 114 (1964) ; Spinelli v. United States, 393 U.S. 410, 415 (1969). It is well established that reliable hearsay evidence, standing alone can satisfy the basis of knowledge prong of the Aguilar-Spinelli standard, particularly where the "first link" in the hearsay chain personally observed the defendant's criminal behavior. Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 232-233 (2006) (holding that Department of Social Services report predicated on hearsay could form the basis of affidavit that provided probable cause for search warrant). Further, the veracity of the hearsay declarant is bolstered when he or she is a named informant and his or her actions, such as reporting the behavior to the authorities, corroborate the allegations and dispel suspicions of "inarticulated self-interest." Id. at 234, quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984). The affidavit here recounts the name of a police detective who personally observed someone with the defendant's name presenting himself to pick up furniture and using a false name to do so. The affidavit says this resulted in a police report, identified by the affiant by its number, which stated that the defendant had been charged with a series of crimes. This evidence suffices to meet the requirement...