Commonwealth v. Ponte

• Decision Date: 13 February 2020
• Docket Number: No. 18-P-1539,18-P-1539
• Citation: 142 N.E.3d 617,97 Mass.App.Ct. 78
• Parties: COMMONWEALTH v. Joseph PONTE.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 78

142 N.E.3d 617

COMMONWEALTH

v.Joseph PONTE.

No. 18-P-1539

Appeals Court of Massachusetts, Bristol..

Argued December 9, 2019.

Decided February 13, 2020.

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

Fred J. Burkholder, Boston, for the defendant.

Present: Green, C.J., Blake, & Kinder, JJ.

BLAKE, J.

This interlocutory appeal by the Commonwealth stems from an order allowing the defendant's motion to suppress evidence based on the lack of probable cause to support the issuance of a search warrant.¹

This appeal presents the question whether a controlled buy of narcotics from an apartment within a large multiunit apartment building, in which police observe a confidential informant (CI) enter and leave the building but do not observe which apartment the CI approaches to complete the purchase, is sufficient corroboration of the CI's veracity to satisfy that prong of the Aguilar-Spinelli reliability test.²On the facts of this case, we conclude that more was required and therefore affirm the order allowing the motion to suppress.

1.Motion to suppress.The defendant moved to suppress the evidence seized, contending that the police did not have probable cause to conduct the search.Both the Fourth Amendment to the United States Constitutionandart. 14 of the Massachusetts Declaration of Rights "require a magistrate ‘to determine that probable cause exists before issuing a search warrant.’ "Commonwealth v. Cavitt, 460 Mass. 617, 626, 953 N.E.2d 216(2011), quotingCommonwealth v. Byfield, 413 Mass. 426, 428, 597 N.E.2d 421(1992).We review a search warrant affidavit de novo to determine if it establishes probable cause.SeeCommonwealth v. Jordan, 91 Mass. App. Ct. 743, 748, 81 N.E.3d 340(2017).We do so by looking within the four corners of the affidavit.Commonwealth v. Estabrook, 472 Mass. 852, 866, 38 N.E.3d 231(2015).

Here, the search warrant application and supporting affidavit of Detective Kevin Barbosa of the New Bedford Police Department, dated January 29, 2016, sought permission to search 280 Acushnet Avenue, apartment 2F, in New Bedford.The police had received information from a CI, and they knew both the name and the address of the CI.The CI was an admitted cocaine user who had personally purchased cocaine from a "Joe Ponte" at apartment 2F in the past.The CI was familiar with terminology related to cocaine purchases, including packaging and street level sales.The affidavit did not contain any information about the track record or prior history of the CI.The affidavit also did not indicate what the CI's history had been with the police department though it did state that the information provided by the CI had been given in the past thirty days.The CI expressed fear of physical retaliation by the defendant if the CI's identity were disclosed.

The affidavit stated that the CI provided Barbosa with the defendant's telephone number and indicated that the number had been used to arrange to buy cocaine.The CI described the process as follows.The CI would go to 280 Acushnet Avenue and enter through the front entrance; the defendant would "buzz" the CI in, and the CI would take the elevator to the second floor.The CI would exit the elevator and take an immediate left, and would then be in front of apartment 2F.The CI would knock and the defendant would open the door.

The CI provided a description of the defendant to the police, who then compared it to a photograph of the defendant.The two were consistent.Barbosa met with the building manager of 280 Acushnet Avenue and was "then able to access the tenants that currently reside in the building."

Apartment 2F was "labeled [as the address for]Joseph Ponte."This, as well as information gained independent of the CI, confirmed that the defendant lived at that address.The defendant's board of probation records showed twenty-nine adult arraignments, which included narcotics offenses and charges of assault and battery by means of a dangerous weapon.The affidavit did not describe the dispositions of any of these offenses.

The police arranged a controlled buy using the CI.Barbosa instructed the CI to contact the defendant for the purpose of buying cocaine.The CI did so and arranged a meeting.The CI was searched by the police and given money to make the buy.The police watched the CI enter the building through the front entrance.They did not see the CI interact with anyone before or after the buy, and the affidavit fails to demonstrate that the CI purchased the drugs from apartment 2F.The police met with the CI after the buy and retrieved the substance that the CI said it³ had purchased from the defendant at apartment 2F.A subsequent search of the CI revealed that the only difference between the two searches was that the CI no longer had the money for the buy.The substance was field tested and had a positive reaction for cocaine.

The application for the search warrant described the apartment building as a "multi-unit housing structure with six floors and a brick facade.The building has the numbers 280 attached to the left of the front door and the apartment has 2F attached to the door."Barbosa did not detail the total number of units in the building nor the number of units per floor.The motion judge found that there were more than a few, as 2F "likely indicates there were at least six apartments on that floor."The search warrant return indicated that the police seized 109 grams of cocaine in twelve plastic bags, $3,866 in cash, a safe, a scale, sandwich bags, inositol, a pair of scissors, a calibration weight, and records in the defendant's name.

2.Aguilar - Spinelli test."Probable cause means a ‘substantial basis’ to conclude 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. Long, 482 Mass. 804, 809, 128 N.E.3d 593(2019), quotingCommonwealth v. Alexis, 481 Mass. 91, 102, 112 N.E.3d 796(2018)."Probable cause is a ‘fact intensive inquiry, and must be resolved based on the particular facts of each case.’ "Long, supra, quotingCommonwealth v. Holley, 478 Mass. 508, 522, 87 N.E.3d 77(2017).When a search warrant affidavit is based on information supplied from an informant, art. 14 requires the magistrate to apply the familiar Aguilar-Spinelli standard, which requires that an affidavit based on information from a CI establish the CI's basis of knowledge and veracity.SeeSpinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637(1969);Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964);Commonwealth v. Upton, 394 Mass. 363, 374-376, 476 N.E.2d 548(1985)."[T]he affidavit is considered as a whole and in a commonsense and realistic fashion,"Commonwealth v. Dorelas, 473 Mass. 496, 501, 43 N.E.3d 306(2016), quotingCavitt, 460 Mass. at 626, 953 N.E.2d 216, and "[a]ll reasonable inferences which may be drawn from the information in the affidavit may also be considered."

Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25(2000).

To establish the reliability of the CI, the Commonwealth must show the basis of knowledge of the CI, known as the basis of knowledge test, and the underlying circumstances demonstrating that the CI's information was credible or reliable, known as the veracity test.Commonwealth v. Depiero, 473 Mass. 450, 454, 42 N.E.3d 1123(2016).Independent police corroboration may make up for deficiencies in one or both prongs of the Aguilar-Spinelli analysis.Id.

a. Basis of knowledge.The defendant concedes, and we agree, that the basis of knowledge test was satisfied by the CI's statement that the CI purchased cocaine from the defendant inside the target apartment within seventy-two hours of the warrant issuing.SeeCommonwealth v. Desper, 419 Mass. 163, 166, 643 N.E.2d 1008(1994).Therefore, the issue is whether the CI met the veracity test.

b. Veracity.Here, the informant's "identity" and "whereabouts" were known to the police, which alone do not confirm the CI's reliability.

Commonwealth v. Alfonso A., 438 Mass. 372, 375, 780 N.E.2d 1244(2003).The affidavit does not indicate that the CI had a prior history with the police department, and thus the judge inferred that the CI was a first-time informant.SeeCommonwealth v. Monteiro, 93 Mass. App. Ct. 478, 479 n.1, 103 N.E.3d 1230(2018).The CI's veracity was not established by the statement to the police that the CI had purchased and used cocaine in the past.More specifically, the statement was not against the CI's penal interest because the CI "would [not] have had a reasonable fear of prosecution," particularly without physical evidence of the drugs.Commonwealth v. Melendez, 407 Mass. 53, 56, 551 N.E.2d 514(1990).SeeCommonwealth v. Ilges, 64 Mass. App. Ct. 503, 509, 834 N.E.2d 276(2005).

As to the details provided by the CI, the police verified innocent details, including that the defendant resided in apartment 2F at 280 Acushnet Avenue.The CI further described the steps taken to purchase cocaine from the defendant, but the police did not have highly specific details that were either self-verifying or that they in fact verified.CompareCommonwealth v. Tapia, 463 Mass. 721, 730, 978 N.E.2d 534(2012)("The informant's description of the defendant's method of operation closely matched the practice corroborated by the police in three controlled purchases, thus establishing the informant's veracity"), and Alfonso A., 438 Mass. at 377, 780 N.E.2d 1244(police knowledge of CI's description of weapons recently stolen was "strong indicator of reliability"), with Commonwealth v. Mubdi, 456 Mass. 385, 397, 923 N.E.2d 1004(2010)(corroboration only of "innocent facts" like location of vehicle and number of passengers does not establish CI's veracity).

As to the defendant's relevant criminal history, the affidavit detailed...