Commonwealth v. Cruz

• Decision Date: 02 March 2000
• Citation: 430 Mass. 838,724 NE 2d 683
• Parties: COMMONWEALTH v. MELQUIDIA E. CRUZ (and nine companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 838

724 NE 2d 683

COMMONWEALTH v. MELQUIDIA E. CRUZ (and nine companion cases¹).

Supreme Judicial Court of Massachusetts, Plymouth.

January 3, 2000.

March 2, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Paul M. Koziell for Melquidia E. Cruz.

Frank H. Spillane for Carlos A. Villar.

Elizabeth Doherty for Berto Solano.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

Richard J. Shea, for Jaime Gonzalez, submitted a brief.

SPINA, J.

Following a joint trial, a jury convicted the defendants, Melquidia E. Cruz, Jaime Gonzalez, Berto Solano, and Carlos A. Villar, of trafficking in cocaine. On appeal, Cruz, Gonzalez, and Villar claim that the affidavit offered in support of the application for the search warrant for Cruz's apartment failed to establish probable cause and failed to meet the requirements for an anticipatory warrant. Additionally, Villar and Solano claim that the trial judge erred in admitting hearsay statements by Gonzalez because there was insufficient nonhearsay evidence to establish their participation in a criminal joint venture. Solano also claims error in the denial of his motion for a required finding of not guilty, and the refusal to instruct the jury on the lesser included offense of simple possession of cocaine. We transferred the defendants' appeals here on our own motion. We reject their claims. We affirm the convictions.

1. Background. On March 31, 1995, Cruz, Gonzalez, and Villar were arrested by police in Cruz's apartment at 15 Eagle Avenue, apartment no. 5, in Brockton. Just prior to the arrests, police had executed a warrant to search Cruz's apartment, the culmination of an undercover investigation into drug trafficking activity operating from her apartment. At the time police entered the premises to execute the warrant, they saw Villar and Gonzalez in the kitchenette. Villar was holding a sifter in his hand. On the kitchen counter was a quantity of cocaine, later determined to be 173.64 grams. In the freezer, the police found a plate of cocaine, determined to be 111.55 grams. In the kitchen cabinet the police found a bag of cocaine determined to be 0.90 grams. Various paraphernalia used in the preparation and distribution of cocaine, such as Inositol powder, baggies, and scales, were found in the kitchenette. Villar and Gonzalez were wearing pagers. Cruz was found in another room of the apartment, where police found a bag containing what was determined to be 13.17 grams of cocaine in a pair of baby's pajamas. In total, police recovered nearly 300 grams of cocaine from the apartment. Solano was arrested three days later on April 3, 1995. During a search of his vehicle pursuant to a warrant, police discovered an electronically controlled secret compartment which could be used for hiding and transporting cocaine.

2. Motion to suppress. Cruz, Gonzalez, and Villar argue that the affidavit supporting the search warrant for Cruz's apartment executed on March 31, 1995, failed to establish probable cause because the information was stale. See G. L. c. 276, § 1 (warrants may be issued only on showing of probable cause). Additionally, they contend that the warrant was an anticipatory search warrant which was executed without appropriate safeguards, see Commonwealth v. Gauthier, 425 Mass. 37, 42, 43-45 (1997); Commonwealth v. Soares, 384 Mass. 149, 155 (1981), thus entitling them to a new trial. These arguments are without merit.

To establish probable cause to search, "[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. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). Probable cause demands more than mere suspicion, but less than the quantum required for a conviction. See Commonwealth v. Hason, 387 Mass. 169, 174 (1982). The affidavit should be read in an ordinary, commonsense manner, without hypertechnical analysis. See United States v. Ventresca, 380 U.S. 102, 109 (1965); Commonwealth v. Blake, 413 Mass. 823, 827 (1992).

We summarize the information in the affidavit. In late February, 1995, State police Trooper Anthony E. Thomas, a narcotics investigator assigned to the Plymouth County district attorney's office, received information from a confidential source regarding the distribution of cocaine in Brockton. The informant told Thomas that cocaine could be purchased from either of two named men by calling a particular Brockton telephone number and placing an order. The source provided the telephone number, identified the locations where the purchases occurred, and provided the registration number of the vehicle driven by one of the men, as well as physical descriptions of them. The telephone number was a nonpublished service listed to Melquidia E. Cruz at the apartment, and the vehicle, a 1987 Buick automobile, was registered to Cruz at the same address. Cruz's name also appeared on the apartment's lease.

On February 22, 1995, Thomas, acting in an undercover capacity, called the telephone number provided by the informant. He spoke with an individual identified as "Imy" and scheduled a cocaine purchase in the parking lot at the apartment. Thomas arrived in the parking lot at 4:25 P.M., at which time he saw a man, later identified as Gonzalez, leave a second-floor apartment, come directly outside, and enter Thomas's automobile. Inside Thomas's vehicle, Gonzalez sold Thomas one-sixteenth of an ounce of cocaine for $60. Thomas and Gonzalez discussed the possibility of purchasing one-half ounce of cocaine later that day. Gonzalez told Thomas to call him later, after 5:30 P.M. At 5:50 P.M., Thomas called Gonzalez, who agreed to sell him the cocaine. At 6:05 P.M., Thomas once again drove to the parking lot at 15 Eagle Avenue. Inside Thomas's vehicle, Gonzalez sold Thomas one-half ounce of cocaine for $450. The two men then discussed additional purchases of larger amounts of cocaine. Gonzalez advised Thomas to call in advance so that he could be ready, explaining that he worked with a partner when arranging the sale of larger amounts of cocaine.

Over the next three weeks, Gonzalez sold increasingly larger amounts of cocaine to Thomas. On March 1, Gonzalez sold one ounce of cocaine to Thomas for $900, and sold him another ounce two hours later for another $900. Gonzalez was able to provide the first ounce sold to Thomas on demand. He sold the second ounce to Thomas that day after contacting his "partner." On March 8, Gonzalez sold four ounces of cocaine to Thomas for $3,600 in cash. On March 15, Gonzalez sold another four ounces of cocaine to Thomas for $3,600 in cash. The manner in which the transactions occurred remained consistent with the pattern established over the first two days of their relationship. When Thomas called to buy cocaine, Gonzalez either arranged a meeting at the Eagle Avenue parking lot to consummate the deal or told Thomas to call again so that he could secure delivery of larger quantities of drugs from his partner. Police surveillance revealed that an individual later identified as Solano arrived at 15 Eagle Avenue immediately prior to the March 8 and March 15 sales to Thomas, and stayed for approximately thirty seconds. On Solano's March 8 visit to Gonzalez prior to Thomas's purchase of cocaine, Gonzalez was seen leaving Solano's car with a noticeable bulge in his pocket.

Between March 15 and March 29, Thomas spoke with Gonzalez about purchasing cocaine in amounts from ten ounces to one-half kilogram. Gonzalez agreed to sell the larger amounts, but explained that he would need to contact his partner beforehand in order to make the necessary delivery arrangements.

On March 31, 1995, Thomas applied for and received warrants to search the apartment and Solano's car. The affidavit in support of the application described in detail the events outlined above. Thomas also offered the opinion, based on facts documented from surveillance, that Gonzalez and Solano were operating a cocaine distribution business from the targeted premises, that Gonzalez had a readily available supply of cocaine, and that Solano supplied Gonzalez with cocaine, at times "fronting" or extending credit to Gonzalez on transactions involving large amounts of cocaine. An assistant clerk-magistrate issued the warrants with no special limitations on police indicative of an anticipatory warrant. Police executed the search warrant for the apartment the same day it was issued.

The clerk-magistrate could have inferred from the averments in the affidavit that (1) Gonzalez was a cocaine dealer; (2) he was able to sell between one-sixteenth and one ounce of cocaine to a customer² on demand without contacting his supplier, and most likely kept his supply at the apartment; (3) Gonzalez and Villar used Cruz's apartment, car, and telephone number in order to conceal their activities from law enforcement agents; (4) Gonzalez had relatively easy access to larger amounts of cocaine through Solano, his supplier; (5) Gonzalez and Solano were engaged in an ongoing commercial enterprise to sell and distribute cocaine, and (6) a significant amount of activity related to the cocaine enterprise took place at the apartment. Such inferences would have been reasonable, and therefore permissible. See Commonwealth v. Taglieri, 378 Mass. 196, 199, cert. denied, 444 U.S. 937 (1979). Taken as a whole and interpreted in a commonsense fashion, the affidavit provides a substantial basis on which the clerk-magistrate could properly conclude that the defendants were distributing cocaine, and that evidence related to the distribution of cocaine would be found at the apartment.

a. Staleness. We are not persuaded by the defendants' argument that the information in the affidavit was stale. Facts...