Commonwealth v. Staines, SJC-09144 (Mass. 4/22/2004)

• Decision Date: 22 April 2004
• Docket Number: SJC-09144
• Citation: 441 Mass. 521
• Parties: COMMONWEALTH vs . JOHN K. STAINES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. JOHN K. STAINES.

SJC-09144

Supreme Judicial Court of Massachusetts.

March 1, 2004.

April 22, 2004.

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

Constitutional Law, Search and seizure, Probable cause, Assistance of counsel. Search and Seizure, Affidavit, Probable cause, Warrant. Probable Cause. Practice, Criminal, Assistance of counsel, Disclosure of evidence, Argument by prosecutor, Comment by prosecutor, Instructions to jury, Lesser included offense.

Indictment found and returned in the Superior Court Department on December 18, 1996.

A pretrial motion to suppress evidence was heard by Herman J. Smith, Jr., J.; the case was tried before Raymond J. Brassard, J., and a motion for a new trial, filed on June 27, 2002, was heard by him.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Charles W. Rankin for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

COWIN, J.

In connection with his indictment charging trafficking in cocaine over twenty-eight grams, the defendant filed a motion to suppress the cocaine and cash found in a search of his automobile. The motion was denied and the defendant was convicted by a Superior Court jury.¹ He filed a timely notice of appeal. The Appeals Court allowed the defendant's motion to stay appellate proceedings so that he could pursue a motion for a new trial in the Superior Court. After the trial judge heard and denied the motion for a new trial, the Appeals Court ordered that the appeal from the denial of that motion be heard with the defendant's direct appeal. We transferred the case to this court on our own motion. The primary issues in this case involve questions concerning the issuance and execution of an anticipatory search warrant. We conclude that both the motion to suppress and the motion for a new trial were properly denied and affirm the defendant's conviction and the order denying his motion for a new trial.

1. Motion to suppress. Pursuant to an anticipatory search warrant,² the Marlborough police conducted a search of the defendant's Saab automobile on November 8, 1996, and discovered $320 in cash and three plastic bags, each containing several bags of cocaine. The defendant contends that the warrant was invalid because the affidavit supporting its issuance failed to establish probable cause that his vehicle would contain cocaine at the time of the authorized search. The defendant argues further that, even if the search warrant were facially valid, the authority to search no longer existed at the time of the search, because the police already possessed the object of the warrant, cocaine that the defendant had sold to an undercover officer. We conclude that the evidence was properly seized and that the motion to suppress was properly denied.

We summarize the information in the affidavit submitted to obtain the anticipatory warrant. The affiant, Detective Lieutenant Arthur Brodeur, a Marlborough officer with many years experience and training in drug-related offenses, was involved in an investigation of Staines's cocaine dealing. As part of this investigation, Officer Stephan Lupien working undercover arranged to purchase cocaine from Staines through Debra Place, an individual cooperating with the police. During the month of October, 1996, Lupien made six controlled buys of crack cocaine from Staines. Each controlled buy was carried out in essentially the same manner. Lupien would arrange through Place to purchase cocaine from Staines and would provide Place with money for the buy. Staines, driving a Saab registered to him, would pick up Place and Lupien on a street in Marlborough. Staines would sell Place bags of crack cocaine inside the vehicle before dropping off Lupien and Place. Place later gave the bags of cocaine to Lupien.

During one of these transactions, on October 11, 1996, while Place and Lupien were riding in Staines's Saab, Place asked for more cocaine than her original request. Staines drove to the "Maplewood Ave. area," dropped off Place and Lupien, "drove up the street and then came immediately back" with more cocaine for the additional sale. Brodeur, the affiant, reasoned from this incident that Staines "had more cocaine hidden in the vehicle and didn't want anyone to see where it was hidden." On another occasion, October 31, 1996, Lupien paged Staines and arranged to purchase crack cocaine from him directly. Staines picked Lupien up in his Saab, and while the two men were in the car, Staines sold Lupien crack cocaine for $320.

The affidavit also stated that "[o]n this date" (presumably November 7, 1996, the date on which the affidavit was signed), Lupien planned to buy more cocaine from Staines by "beeping him" and meeting him in Marlborough in his Saab as on "all previous occasions." The affidavit stated that the same procedure would be used for the sale as had been used in the past, and concluded that the requested anticipatory warrant would be "effective" once Lupien had arranged the sale and Staines had picked Lupien up for the transaction. Based on the above information, on November 7, 1996, Brodeur applied for and was issued an anticipatory warrant to search the defendant's Saab for "Cocaine."

There appears to be no dispute concerning events subsequent to the period of time encompassed by the affidavit. We recite them briefly. On November 7, 1996, Lupien arranged to make another controlled buy from the defendant. Moments after this purchase was completed, other officers stopped the defendant's vehicle and arrested him. The defendant's Saab was taken to the police station, where Brodeur searched the vehicle the following morning. The return on the search warrant indicates that three plastic bags, each containing additional bags of cocaine, and $320 in cash, the markings of which matched those of the bills Lupien used in the final controlled buy, were discovered in the Saab.

In denying the defendant's motion to suppress, the judge concluded, inter alia, that the anticipatory warrant was valid because the triggering event was adequately specified; and there was "substantial probability"³ that the contraband would be present in the defendant's vehicle when the warrant was triggered.

The defendant first claims that the affidavit in support of the warrant did not establish probable cause that his car would contain cocaine at the time of the search. In reviewing a finding of probable cause on a motion to suppress evidence seized pursuant to a search warrant, we consider only the facts contained in the affidavit and any reasonable inferences therefrom. See Commonwealth v. Allen, 406 Mass. 575, 578 (1990); Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986). As always, the affidavit is to be read in an ordinary, commonsense manner and is not to be subjected to hypertechnical analysis. Commonwealth v. Cefalo, 381 Mass. 319, 329-330 (1980), citing United States v. Ventresca, 380 U.S. 102, 108-109 (1965).

An anticipatory search warrant is a warrant that takes effect at a specified future time and not on its issuance. United States v. Gendron, 18 F.3d 955, 965 (1st Cir.), cert. denied, 513 U.S. 1051 (1994). We have concluded previously, as have "the great majority of courts which have considered the issue," that anticipatory search warrants are not per se unconstitutional. Commonwealth v. Soares, 384 Mass. 149, 154 (1981). See United States v. Gendron, supra. As with all other search warrants, our inquiry is whether the warrant meets the requirements of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Gauthier, 425 Mass. 37, 42 (1997); Commonwealth v. Cefalo, supra at 327-328. The essential question is whether there is probable cause that the evidence or contraband will be on the premises at the time the warrant is to be executed. Commonwealth v. Soares, supra at 155.⁴,⁵

Here, the information in the affidavit provided probable cause that cocaine would be found in the defendant's Saab when the warrant was executed. Officer Lupien's six controlled buys were all conducted in the defendant's vehicle. The defendant picked up Lupien and Place in his Saab and supplied them each time with a prearranged quantity of cocaine.⁶ Detective Brodeur believed that Staines concealed cocaine somewhere in his vehicle. He based this assumption on Staines's conduct during the one controlled buy when he was asked for additional cocaine. On that occasion, the defendant dropped off Lupien and Place, drove up the street, and returned immediately with more crack cocaine. The affidavit does not state that Lupien kept the defendant's vehicle in view during the brief period of time that elapsed between the moment the defendant dropped off Lupien and Place and the time he returned with the additional cocaine. But given the short time that had elapsed ("Staines dropped . . . them off and drove up the street and then came immediately back"), the reasonable inference is that the defendant obtained the additional cocaine from within the car and not from another location, and that the drive up the street was a charade intended to prevent buyers from learning precisely where the cocaine was stored.

The defendant argues that the facts recited in the affidavit leave open the possibility that the cocaine was retrieved from some other stash location on that street, and that the buyers could have been dropped off to prevent them from discovering that location. However, the affidavit recites that, after the request for additional cocaine, Staines continued driving and did not drop off Lupien and Place until they reached the "Maplewood Ave. area." If the defendant were trying to keep secret some stash location very near the drop-off point, it would make no sense to drive the buyers to that immediate vicinity before dropping them off. The more reasonable...