Commonwealth v. Corniel, 19 Mass. L. Rptr. No. 27, 616 (MA 6/23/2005), ESCR20040571.
| Decision Date | 23 June 2005 |
| Docket Number | No. ESCR20040571.,ESCR20040571. |
| Citation | 19 Mass. L. Rptr. No. 27, 616 |
| Parties | Commonwealth of Massachusetts v. Junet Antonio Corniel |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The defendant, Junet Antonio Corniel, is charged with trafficking in cocaine. He has filed a motion to suppress evidence consisting of seven hundred (700) grams of cocaine found in the back seat of his car. Based on the credible evidence presented at the hearing on the motion to suppress, I make the following findings of fact and rulings of law.
Around 11 p.m. on March 29, 2004, the Lawrence police arrested Miguel Rivera after he sold more than fourteen grams of cocaine to Officer Mark Rivet. Rivera agreed to cooperate with the police by providing information to them. He said that the name of his supplier, the defendant, was "J," and that he was a chubby Hispanic male who was about five-feet, six-inches tall. He further told the police J's street address and said that J would be traveling from his home on Graynard Terrace to South Lawrence for a drug pick-up in a maroon Dodge Stratus that night. Rivera was neither released from custody, nor did the police make any promises to Rivera in exchange for this information.
The police set up surveillance around Graynard Terrace at the alleged address of the defendant. The police observed a chubby Hispanic male, who was about 5'6" exit the house and enter a maroon Dodge Stratus. The Hispanic male did not have anything in his hands. Officer Rivet followed the car from Graynard Street to Bailey Street in South Lawrence. The defendant exited the car and entered a house. After a short period of time, the defendant exited the house with what appeared to be an opaque plastic bag. The bag was offered into evidence as exhibit 1.
The defendant started driving back towards North Lawrence, but the police stopped his vehicle. At this time, there were about four police cars with a total of four to five officers involved in the stop. As Rivet approached, the defendant rolled down his window. Rivet saw the opaque bag in the backseat of the car and he testified that he smelled a strong odor, an odor that he claimed were adulterants emanating from the bag. Officer Rivet told the defendant to get out of the
car. He performed a pat-down frisk. At this point, Rivet removed the bag from the car. Upon opening the bag, Rivet saw that it contained two other bags in which there appeared to be white powder which was later determined to be 700 grams of cocaine. The cocaine was packaged in a zip-lock bag, inside two other plastic bags and the outer bag was knotted. During the entirety of the stop, the defendant was polite and cooperative.
At trial, Officer Rivet identified the defendant as the man driving the car, although he was much thinner in court. He also testified, over an objection, to the following: although pure cocaine has no odor, the chemicals used by the original packagers in South America cause cocaine to give off the same odor regardless of the methods used to process it or the varying dilutants added to cut it. The odor that the cocaine gave off in court was the same odor that cocaine always gave off. He said that the odor is strong. In his fifteen years working in drug investigation, this was only Officer Rivet's third time detecting the odor of cocaine, while standing outside a vehicle. Rivet based his opinion about the odor of cocaine from previous investigations and information obtained from State Police Trooper Masterson. However, Rivet's ability to smell cocaine had never been tested or measured.
The Commonwealth called state Trooper Masterson to the stand as an expert on cocaine's characteristic odor. The defense objected, but the court took Trooper Masterson's testimony, de bene, and declared that the court would rule on the objection later. He is a nine-year veteran and was assigned to the Suffolk County Drug Task Force. Previously, he served as a member of the Essex County Drug Task Force. He received his training in narcotics investigation from federal law enforcement agencies and from other states including Massachusetts. His Curie Vitae was offered into evidence. He testified as to the following: officers in the drug task force are trained to smell the distinct odor of cocaine because in their undercover capacity they have to be able to distinguish between real and counterfeit cocaine. Masterson is trained to identify drugs by sight, smell and touch. Cocaine comes to Lawrence via Mexico from South America. Cocaine is extracted from the coca leaf by harsh chemicals such as gasoline, ether or ethanol. The leaves are crushed and mixed into a paste which is then processed and turned into powder where it is packaged and shipped to the United States. It is then diluted multiple times with a variety of substances including lidocaine, acetone, baby powder, rat poison and other white or off-white powders. These dilutants may affect cocaine's characteristic odor but regardless of the process, the odor of cocaine is fairly constant. Larger quantities of cocaine emit stronger odors and more pure cocaine also emits stronger odors. However, he also said that pure cocaine is odorless. The odor is the result of the chemical breakdown of the coca leaf but he admitted that he had no knowledge of the specific chemical reaction that results from processing cocaine. Trooper Masterson has previously used his sense of smell to locate cocaine hidden in vehicles. The cocaine that was in evidence in this case still had the distinctive odor that he associated with cocaine. In his opinion, Officer Rivet could detect the odor of cocaine that had been in the car for only a few minutes, while standing outside the vehicle, even though it was tightly wrapped inside several plastic bags. Trooper Masterson had not conducted any experiments to confirm his view about the distinctive odor of cocaine, nor were the result of any other experiments offered into evidence.
Based on the information provided by the informant, and the police investigation that corroborates that information, Officer Rivet had probable cause to arrest the defendant prior to seizing the bag. The police conducted a valid search incident to arrest; therefore, the motion to suppress is denied.
Probable cause to arrest a suspect based on information provided by an informant exists when the Commonwealth satisfies the familiar two-part test derived from Spinelli v. United States, 303 U.S. 410 (1969), and Aguilar v. Texas 378 U.S. 108 (1964). See Commonwealth v. Upton, 394 Mass. 363 (1985). The informant must have a basis of knowledge for the information that he provides, Spinelli, 303 U.S. at 410 and the informant must be reliable. Aguilar, 378 U.S. at 108.
An informant, who provides specific information derived from personal observations, establishes a basis of knowledge. Commonwealth v. Alvarez, 422 Mass. 198, 207 (1996). The informant claimed to have bought drugs from the defendant in the past which suggest that the informant observed his seller and where the drugs were being sold. Also, highly detailed information is indicative of first-hand knowledge. Commonwealth v. Welch, 420 Mass. 646, 651-52 (1995). In this case, Rivera provided very specific information: the defendant was a chubby Hispanic male who was about 5'6," he would be driving a maroon Dodge Stratus, the defendant goes by the nickname "J," the defendant's address, and the defendant would be making a drug deal in South Lawrence that night. The facts of this case suggest that the informant had a basis of knowledge for the information that he gave.
Reliability can be shown by: (1) an informant's declaration against penal interest, (2) self-verifying detail, (3) corroboration by the police, (4) history with the informant that proves that he was reliable, and (5)
a defendant's recent conviction of a crime similar to the one which is the subject of the tip. Commonwealth v. Meija, 29 Mass.App.Ct. 665, 668 (1991); citing Commonwealth v. Atchue, 393 Mass. 343, 348 (1984); Commonwealth v. Pellier, 362 Mass. 621, 625 (1972); Commonwealth v. Germain, 396 Mass. 413, 418 n.7 (1985); Commonwealth v. Selah, 396 Mass. 406, 410 (1985); Commonwealth v. Parapar, 404 Mass. 319, 323 (1989). The first three factors are the only ones that are relevant to this analysis.
When the Commonwealth relies on a statement against an informant's penal interest to prove that the information is reliable, the Commonwealth must show that the police knew the informant's identity, Commonwealth v. Allen, 406 Mass. 575, 579 (1990), and that the informant had a reasonable fear of prosecution. Commonwealth v. Melendez, 407 Mass. 53, 57 (1990). Cf. Commonwealth v. Rosenthal, ...
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