Commw. v. Alfonso a.

• Decision Date: 28 November 2001
• Docket Number: 99-P-1787
• Citation: 53 Mass. App. Ct. 279
• Parties: COMMONWEALTH vs. ALFONSO A.,(FN1) a juvenile. 99-Massachusetts Court of Appeals County: Suffolk
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs ALFONSO A.,¹ a juvenile

99-P-1787

Massachusetts Court of Appeals

County: Suffolk

April 19, 2001.

November 28, 2001

Present: Gelinas, Dreben, & Cohen, JJ.

Probable Cause. Search and Seizure, Probable cause, Affidavit. Constitutional Law, Probable cause, Waiver of constitutional rights, Parent and child. Waiver.

Complaints received and sworn to in the juvenile session of the West Roxbury Division of the District Court Department on April 1, 1999.

A pretrial motion to suppress evidence was heard by Paul D. Lewis, J., and, on transfer to the Boston Juvenile Court, a second pretrial motion to suppress evidence was heard by Leslie E. Harris, J., and the cases were heard by Stephen M. Limon, J.

Kenneth J. King for the juvenile.

Alex Philipson, Assistant District Attorney, for the Commonwealth.

DREBEN, J.

Prior to his jury waived trial, the juvenile filed two motions to suppress: one motion challenged a search pursuant to a warrant during which physical evidence was seized, and the other sought to suppress incriminating statements of the juvenile obtained at the time of the search. Both motions were denied and the juvenile was adjudicated a delinquent on complaints charging him with breaking and entering in the day time, larceny over $250, and possession of a firearm.² In his appeal, he claims that (1) the search was invalid as the affidavit in support of the warrant failed to establish probable cause; and (2) the statements should be suppressed because he was not accorded the protections set forth in Commonwealth v. A Juvenile, 389 Mass. 128 (1983), and hence, his waiver of the right to remain silent was invalid. We agree that both motions to suppress should have been allowed.

1. Motion to suppress physical evidence. Where, as here, a search is conducted pursuant to a warrant, probable cause must be found only on the facts revealed on the face of the affidavit and any reasonable inferences therefrom. Commonwealth v. Germain, 396 Mass. 413, 415 n.4 (1985). Commonwealth v. Allen, 406 Mass. 575, 578 (1990). See Commonwealth v. Upton, 394 Mass. 363, 367 (1985). We turn to the affidavit which is set forth in relevant part in the margin.³ On January 28, 1999, the affiant, an experienced detective with the Boston police department, sought a warrant for the second floor residence and other specified areas at 21 Montvale Street, in the Roslindale area of Boston. He had, within the last two hours, received information from an informant, referred to as "X" "whose whereabouts and identity [were] known" to him, but who wished to remain anonymous. X told the affiant that he had "observed six rifles, three shotguns, two rifles, and one air pellet rifle" at the locus, and that there were two people currently in the house, one called Ricky who lived there with his parents and the other named Alfonso. Their last names were unknown to the informant and he believed that "the parents" (not identified) were not then at home.

X also told the affiant that Alfonso said "that he took the guns in a Breaking & Entering on the 27th of January, 1999, in West Roxbury." X stated that Ricky was going to put the guns in a black bag and place them in the garage, and that Alfonso "was making several phone calls" to find a buyer. Alfonso was asking three to four hundred dollars for each weapon and had scheduled a meeting with two prospective buyers later in the evening.

The affiant asserted that in fact there had been a breaking and entering at 24 Chestnut Street, in the West Roxbury section of Boston, on January 27, 1999 in which three 12 gauge shotguns, two 20 gauge shotguns, and a pellet gun were taken.

The warrant issued and was executed that evening at which time numerous guns were found.

Recognizing correctly that Massachusetts adheres to the "two pronged test" of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), see Commonwealth v. Upton (Upton I), 390 Mass. 562, 568-571 (1983), rev'd., Massachusetts v. Upton, 466 U.S. 727 (1984), S.C., Commonwealth v. Upton, 394 Mass. 363, 374 (1985) (Upton II),⁴ the motion judge held that both prongs were met. We agree as to the first prong. Not only did X personally observe specific kinds of guns,⁵ i.e., rifles, shotguns, and an air pellet gun, see Commonwealth v. Allen, 406 Mass. 575, 578 (1990) ("First-hand receipt of information through personal observation satisfies the basis of knowledge prong"), but he also heard Alfonso state that he had taken the guns in a breaking and entering on January 27, 1999 in West Roxbury. See Commonwealth v. Lapine, 410 Mass. 38, 41 (1991) (hearing a conversation satisfies the basis of knowledge prong); Commonwealth v. Crawford, 410 Mass. 75, 78-79 (1991) (basis of knowledge test satisfied by defendant's telling informant of plan).

The difficulty lies with the veracity test. None of the common bases for determining reliability is present: the affidavit does not mention successful past performance of the informant, or suggest that he or she made a statement against penal interest, or that the informer is "an ordinary citizen" who provided information as a witness to a crime. See Upton I, 390 Mass. at 569-570, and cases cited. In reaching his conclusion that the veracity prong had been satisfied, the motion judge relied on the following: (1) X had provided details which included the type and number of guns, where they had been obtained, and the plan for disposing of them; (2) similar guns had been stolen in a breaking and entering, thus "essentially corroborat[ing]" X's information; and, (3) X's reliability was bolstered by the fact that the affiant policeman knew X's identity and whereabouts.

We recognize that "[a]n affidavit for a search warrant . . . 'must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . . [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.'" Commonwealth v. Germain, 396 Mass. 413, 418 (1985), quoting from United States v. Ventresca, 380 U.S. 102, 108-109 (1965).

Nevertheless, in this case, each of the three considerations relied on by the motion judge is weak, and, even in combination, when the affidavit is read as a whole, the reliability of the information remains unsupported.

a. The degree of detail is not impressive; indeed, assuming the affidavit is taken to mean that the informant saw six rather than twelve guns,⁶ his claimed observation of "six rifles, three shotguns, two rifles, and one air pellet rifle," while adequate to satisfy the basis of knowledge prong, is not sufficiently accurate or specific to be "self-verifying." See Commonwealth v. Rojas, 403 Mass. 483, 487 (1988). The informant's description of the guns does not match the detailed description of the items stolen, namely, three 12-gauge shotguns, two 20-gauge shotguns, and a pellet gun. Compare the detailed and corroborated description in Commonwealth v. Germain, 396 Mass. at 418 (1985).⁷ Moreover, here, "the informant did not provide particularized distinguishing characteristics of the . . . apartment, possessions, or activities." Commonwealth v. Rojas, 403 Mass. at 487. He did not even know the last names of the persons in the apartment.⁸

Moreover, this court has questioned the notion that detail, alone, uncorroborated by police investigation, is an indication of veracity. Commonwealth v. Oliveira, 35 Mass. App. Ct. 645, 648 (1993). In that case, Justice Kaplan, writing for the court, quoted from Stanley v. State, 19 Md. App. 507, 533 (1974), with approval: "If the informant were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about 'veracity.'" See Grasso & McEvoy, Suppression Matters Under Massachusetts Law, 10-4(c), 10-5(b) (2001).

In sum, the details that satisfied the basis of knowledge test fell short of bolstering the informant's veracity. See Upton I, 390 Mass. at 569.

b. What details there were were not significantly enhanced by police investigation. True, there was here some corroboration. A robbery had taken place on January 27th in West Roxbury and five shotguns and a pellet gun had been stolen. But the circumstances related in the affidavit did not lend credibility to the informant. Where there has been a robbery or other criminal conduct and an informant provides facts which are not publicly known or shows knowledge of criminal behavior before the police are aware of the crime, the likelihood that the information is false is reduced. See 2 LaFave, Search and Seizure 3.3(f), at 170 (3d ed. 1996) & at 19 (2002 Supp.).

Our cases, and cases elsewhere, accord credibility in such circumstances. Thus, in Commonwealth v. Germain, 396 Mass. at 415-418, after listing other factors tending to show the reliability of the informant's disclosure about the robbery,⁹ the court pointed to the detailed description of the items given by the informant which, police investigation confirmed, matched the detailed description given by the victims. Although the court did not specifically so state, it was most unlikely that knowledge about the items described as observed by the informant, a brown suede mask and a gray-colored handgun with rust spots on the top of the barrel, had been revealed to the public. See note 7, supra. See also the following cases where knowledge of unique details corroborated by police investigation supported the informant's credibility. Yielding v. State, 371 So. 2d 951, 957 (Ala. Cr. App. 1979), cert. denied, Ex parte Yielding, 371 So. 2d 962 (Ala. 1979)¹⁰; State v. Jeffcoat, 403 So. 2d 1227, 1229-1230 (La. 1981) (court noted that some items described by the informant, and confirmed by police as having been taken in two different burglaries, were "unusual," e.g., a rug [in fact, a tapestry] showing deer drinking from a stream and an "old time" cap and...