Commonwealth v. Monteiro

• Decision Date: 28 June 2018
• Docket Number: No. 16–P–1633,16–P–1633
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Paulo MONTEIRO.

93 Mass.App.Ct. 478

103 N.E.3d 1230

COMMONWEALTH

v.Paulo MONTEIRO.

No. 16–P–1633

Appeals Court of Massachusetts, Bristol..

Argued January 12, 2018

Decided June 28, 2018

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

David R. Rangaviz, Committee for Public Counsel Services, for the defendant.

Present: Vuono, Agnes, & McDonough, JJ.

AGNES, J.

In this interlocutory appeal by the Commonwealth, we must decide whether the information provided by a first-time, confidential police informant (CI) was sufficiently corroborated by a single, imperfectly executed controlled "buy" of cocaine for the purposes of establishing probable cause for the issuance of a warrant to search the defendant's apartment. We conclude that the affidavit was sufficient to establish the CI's basis of knowledge and veracity, and that the information provided by the CI, along with information gathered by the police, as set forth in the affidavit in support of the search warrant, established probable cause. Accordingly, we reverse the order allowing the defendant's motion to suppress.

Background. The affidavit filed as part of the warrant application contained the following facts.

In November, 2015, Detective Gracia of the New Bedford police department spoke with the CI, whose identity and whereabouts were known to the police.¹ The CI stated that they had contacted the defendant, Paulo Monteiro, by telephone or had "show[n] up [at] his residence" in New Bedford to purchase cocaine in the past. The CI informed Detective Gracia that they continue to purchase cocaine from the defendant. The CI provided Detective Gracia with a physical description of the seller ("a Cape Verdean male 20 years old approx 6' tall with a medium build") and the seller's address. Detective Gracia confirmed via the police department's computer system that a person named Paulo Monteiro had the same listed address as that provided by the CI. Detective Gracia also reviewed the defendant's criminal record and determined that he was on probation for statutory rape. A booking photograph of the defendant was shown to the CI. The CI stated that the person in the photograph, whom the CI identified as the defendant, was the person who had sold cocaine to the CI in the past.

Detective Gracia later met the CI to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money. Detective Gracia then gave the CI money to purchase cocaine from the defendant. Detective Gracia and other members of the New Bedford police department maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant's apartment building.² A short time later, the CI was seen leaving the walkway leading to the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until the CI met Detective Gracia at a predetermined location where the CI provided Detective Gracia with a quantity of what the CI said was cocaine. The CI stated that they purchased the cocaine from the defendant inside his first-floor apartment. The CI was again searched and determined to be free of money and contraband. The material the CI turned over to the police was field tested and found to be cocaine.

Detective Gracia applied for, and a magistrate subsequently issued, a warrant to search the defendant's apartment. Upon execution of the search warrant, the police found narcotics and drug paraphernalia inside the defendant's apartment. An indictment was returned against the defendant for trafficking in cocaine. See G. L. c. 94C, § 32E(b ). The defendant moved to suppress the contraband and related drug paraphernalia found during the search on the basis that the affidavit provided to the magistrate did not establish probable cause. The defendant's motion to suppress was allowed after the motion judge concluded that the affidavit failed to establish both the CI's basis of knowledge and veracity. For the reasons set forth below, we reverse.

Discussion. Article 14 of the Massachusetts Declaration of Rights requires that a search warrant issue only upon a showing of probable cause. Commonwealth v. Foster, 471 Mass. 236, 241, 28 N.E.3d 427 (2015). In determining whether the probable cause standard was met, our inquiry "begins and ends with the ‘four corners of the affidavit’ " supporting the application for the search warrant. Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428, 657 N.E.2d 237 (1995). "Because a determination of probable cause is a conclusion of law, we review a search warrant affidavit de novo." Foster, supra at 242, 28 N.E.3d 427.

In Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985) ( Upton II ), the Supreme Judicial Court determined that "art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment" to the United States Constitution. When an affidavit in support of a search warrant is based on information supplied by an unknown informant, art. 14 requires the magistrate called upon to issue a search warrant to apply the so-called Aguilar– Spinelli test to assess whether the affidavit is sufficient to establish probable cause to issue the warrant. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).³

"Where information from an unidentified informant is relied on to supply probable cause to search, art. 14 ... requires that the affidavit apprise the magistrate of (1) some of the underlying circumstances from which the informant concluded that contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable (the veracity test)."

Commonwealth v. Warren, 418 Mass. 86, 88, 635 N.E.2d 240 (1994).

The defendant concedes, and we agree, that the basis of knowledge test was satisfied by the CI's statement that they had purchased cocaine from the defendant inside the target apartment within seventy-two hours of the warrant issuing. See Commonwealth v. Desper, 419 Mass. 163, 166, 643 N.E.2d 1008 (1994).

We next examine whether the veracity prong has been satisfied. The affidavit submitted to the magistrate indicated that the CI was a first-time, confidential police informant, which rendered the statements made by the CI contained in the affidavit, standing alone, insufficient to satisfy the veracity prong of the Aguilar– Spinelli test. See Commonwealth v. Alfonso A., 438 Mass. 372, 376, 780 N.E.2d 1244 (2003) ("Although police knowledge of the CI'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"); Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787, 911 N.E.2d 206 (2009) (information from first-time informant "ordinarily would not meet the veracity requirements imposed by art. 14").

However, "a properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants." Figueroa, supra at 787–788, 911 N.E.2d 206. See Commonwealth v. Luna, 410 Mass. 131, 134, 571 N.E.2d 603 (1991) (two controlled purchases of narcotics by confidential informant were sufficient, standing alone, to provide probable cause to search defendant's home); Warren, 418 Mass. at 87, 89, 635 N.E.2d 240 (tip containing detailed information about defendant's apartment and location of drugs contained therein, coupled with single controlled buy, sufficient to establish informant's veracity); Villella, 39 Mass. App. Ct. at 427–428, 657 N.E.2d 237 (probable cause established where police corroborated portions of informant's detailed tip and informant made single controlled buy at defendant's residence through intermediary). See also Commonwealth v. Cruz, 430 Mass. 838, 842 n.2, 724 N.E.2d 683 (2000), citing Warren, supra.⁴ In Desper, 419 Mass. at 168, 643 N.E.2d 1008, the Supreme Judicial Court set forth the essential components of a controlled buy:

"(1) a police officer meets the informant at a location other than the location where is it suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance."

Here, the affidavit does not indicate that the affiant observed the CI's physical entry into, or exit from, the building housing the defendant's apartment during the course of the controlled buy.⁵ The defendant argues that this deficiency in the controlled buy rendered the information provided by the CI unreliable for the purposes of establishing probable cause.

Although "the steps customary in a controlled buy should be taken" when a controlled buy is being used to corroborate a statement made by a confidential informant that otherwise would not be sufficient to establish probable cause, id. at 170, 643 N.E.2d 1008, probable cause may nevertheless be established where the police fail to comply with one of the four investigatory steps customarily associated with a controlled buy.⁶ See id. at 170–171, 643 N.E.2d 1008 (probable cause requirement was met where police failed to search confidential informant for contraband before two controlled buys). Here, the magistrate was not compelled to...