Commonwealth v. O'DAY

• Decision Date: 05 September 2003
• Parties: COMMONWEALTH vs. THOMAS J. O'DAY, THIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 296

798 NE 2d 275

COMMONWEALTH vs. THOMAS J. O'DAY, THIRD.

Supreme Judicial Court of Massachusetts, Plymouth.

September 5, 2003.

November 7, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Nona E. Walker, Committee for Public Counsel Services, for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

COWIN, J.

The defendant, Thomas J. O'Day, III, was found guilty of possession of an infernal machine in violation of G. L. c. 266, § 102A.¹ He appealed from the denial of his motion to suppress evidence seized in his residence and his motion to dismiss the indictment charging possession of a grenade simulator that was destroyed by the Commonwealth prior to trial. The Appeals Court concluded that the motion to suppress should have been allowed and therefore reversed the judgment. Commonwealth v. O'Day, 56 Mass. App. Ct. 833, 840 (2002).² We granted the Commonwealth's application for further appellate review and affirm the conviction.

1. Motion to Suppress. On November 6, 1997, the State police executed a search warrant at the defendant's residence at 10 Hunt Street in Brockton, and they seized 1.64 grams of cocaine, a revolver, and a grenade simulator. The search warrant was issued based on the affidavit of John Brooks, a State trooper experienced in controlled substance investigations. The affidavit recites information supplied by a confidential informant and by State troopers who participated in surveillance of the defendant. The defendant concedes that the affidavit contained "substantial information" concerning the presence of drugs at DJ's Pub in Brockton where the defendant worked as a doorman, but claims there was no probable cause to believe that drugs were located at his home.³

We note that the motion judge made findings of fact. However, our inquiry as to the sufficiency of the search warrant application always begins and ends with the "four corners of the affidavit." Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). See Commonwealth v. Cefalo, 381 Mass. 319, 328-330 (1980) ("Our reading of the affidavit . . ."); Commonwealth v. McRae, 31 Mass. App. Ct. 559, 559-560 (1991) (citing G. L. c. 276, § 2B). The magistrate considers a question of law: whether the facts presented in the affidavit and the reasonable inferences therefrom constitute probable cause. That conclusion of law is neither buttressed nor diminished by other evidence. Thus, we determine whether, based on the affidavit in its entirety, the magistrate had a substantial basis to conclude that a crime had been committed, Commonwealth v. Donahue, 430 Mass. 710, 715 (2000), and that the items described in the warrant were related to the criminal activity and probably in the place to be searched. Commonwealth v. Upton, 394 Mass. 363, 370 (1985). The motion judge was correct that the affidavit established probable cause to search the defendant's residence, and we uphold on that basis. His findings of fact were superfluous. We summarize the facts recited in the affidavit.

a. Facts. From a confidential informant, State Trooper John Brooks learned of a cocaine-selling operation at DJ's Pub on South Main Street in Brockton. The informant had purchased powdered and "crack" cocaine from sellers at the pub during the previous year. According to the informant, the sales were made face-to-face in remote areas of the bar primarily during the evening, and the sellers kept the cocaine "on their person." The informant described one of the sellers as "Tommy," a doorman at DJ's Pub who also supplied young males with cocaine for distribution. "Tommy" was known to Trooper Brooks as the defendant, who resided at 10 Hunt Street in Brockton. Brooks also was aware that the defendant had "a lengthy record," which included thirty-two arraignments and on three occasions charges of unlawful possession of a firearm.

Based on this information, Brooks, with three other State troopers, conducted a series of surveillances. The first surveillance was of DJ's Pub on the evening of September 27, 1997. The defendant arrived in a truck registered to his girl friend and walked into the bar. Two men immediately approached him. Before the defendant's arrival, these two men had been pacing back and forth anxiously, looking out the front door, and were the only people in the bar who were not drinking. After a brief conversation, the defendant and these two men walked into the men's room together. A short time later, the defendant's companions left the bar after emerging from the bathroom with him. Trooper Marc Lavoie, another officer who appeared to have an extensive background in narcotics, stated that this behavior was consistent with drug distribution.⁴ The defendant repeated similar transactions with several other individuals in the bar that evening. The troopers also had the confidential informant make a controlled buy of cocaine from the defendant that evening at the bar.

A second surveillance took place on the evening of October 9, 1997. At approximately 7 P.M., Brooks and four other State troopers set up surveillance of the defendant's residence at 10 Hunt Street. Several vehicles were parked in front of the residence and in his driveway. Brooks observed "other" visitors arrive and depart from the defendant's residence after a "brief stay." Based on his experience, Brooks determined this behavior was consistent with narcotics distribution. The defendant was seen leaving his residence and departing in his truck at 8:13 P.M. Mobile surveillance followed the truck from the residence to DJ's Pub. At approximately 8:15 P.M., the defendant entered the bar, where interior surveillance had already been established. An anxious male immediately greeted the defendant, and the two sat at a table while exchanging something under it. At least four times on this evening, Brooks observed the defendant leave the bar and speak briefly on a cellular telephone as he looked up and down Main Street. At one time during the surveillance, the troopers observed the defendant leave the bar and enter the truck. An unknown male also left the bar and approached the truck. The man stood for two minutes at the open passenger side door of the truck, then closed the door and returned to the bar. Trooper Brooks believed that this activity was "consistent with the manner in which narcotics [sales] are transacted." The defendant then participated in a series of exchanges beneath a table in the bar with several individuals. The confidential informant made a controlled buy from the defendant in a similar manner, and the buy was observed by an undercover trooper.

A third surveillance of DJ's Pub and the defendant's residence occurred on November 1, 1997. State troopers observed the same pattern of visitors to the defendant's residence as on the previous occasion: "several vehicles that arrived and departed . . . after a brief stay." The defendant departed his residence at 8:04 P.M. and drove directly to DJ's Pub. Surveillance within the bar established that the defendant went into the men's room several times with a different male, each visit of short duration. The confidential informant engaged in a third controlled buy of cocaine from the defendant. Again, the defendant spoke on his cellular telephone in brief conversations outside the bar. At one point, he went to his truck, reached inside the passenger door, and immediately returned to the bar.

Brooks learned that electrical service for the defendant's residence was in his girl friend's name. Based on years of investigative experience, Brooks was aware that "individuals who are involved in illegal activity frequently deploy others to register their vehicles and establish essential utilities [in order to] conceal [their] identity, place of residence, and to frustrate the efforts by law enforcement." The trooper's description of the defendant's house stated that signs warning "Beware of Dog" and "Prohibita el Paso" were affixed to the doors of the residence.

The judge denied the motion to suppress, concluding, as do we, that based on the information in the affidavit, there was probable cause for the magistrate to believe that the defendant's residence was "connected to the ongoing drug activity," and that the confidential informant's reliability had been established.

b. Probable cause. "The Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights] do not define `probable cause' . . . ." Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980). To establish probable cause to obtain a search warrant, the affidavit must "contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched." Id. "Where information from a confidential informant is relied on to supply probable cause to arrest and to search, art. 14 requires that the affidavit apprise the magistrate of some facts and circumstances showing both (1) the basis of the informant's knowledge, and (2) the credibility of the informant or the reliability of his information." Commonwealth v. Blake, 413 Mass. 823, 826 (1992).⁵ Independent police corroboration of an informant's tip can compensate for deficiencies in either or both prongs to satisfy the probable cause requirement of art. 14. Id. at 826-827. "Furthermore, the affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis." Id. at 827. "In each case, the basic question for the magistrate is whether he has a substantial basis for concluding that any of the articles described in the warrant are probably in the place to be searched." Commonwealth v. Upton, 394 Mass. 363, 370 (1985).

The information in the affidavit satisfied both prongs of the Aguilar-Spinelli test. See Commonwealth v. Upton, supra at 374, citing ...