COMMONWEALTH v. LUGO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from an order by a judge of the District Court allowing the defendant's motion to suppress evidence obtained during the execution of a search warrant. Because we conclude that the affidavit in support of the search warrant was sufficient to establish the confidential informant's veracity, we reverse.

Under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution, a magistrate must “determine that probable cause exists before issuing a search warrant.” Commonwealth v. Byfield, 413 Mass. 426, 428 (1992). We review this determination de novo, Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), looking solely to the “four corners of the affidavit” (citation omitted), Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), reading the document “as a whole, not parsed, severed, and subjected to hypercritical analysis,” Commonwealth v. Blake, 413 Mass. 823, 827 (1992), and “drawing reasonable inferences and relying on common knowledge,” Commonwealth v. Atchue, 393 Mass. 343, 346 (1984).

Probable cause was established here in large part by information from a confidential informant known as CI-1. In pertinent part, CI-1 told the officer-affiant that the defendant was dealing cocaine from his apartment located at 31 Nye Street # 1, and CI-1 had seen the defendant at that location with a nine millimeter firearm together with cocaine packaged for street-level sale.

Where, as here, an affidavit is based on information from a confidential informant, it must meet the two-pronged Aguilar-Spinelli test, see Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964), by establishing the informant's basis of knowledge and veracity. Byfield, 413 Mass. at 429, citing Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). The defendant does not challenge the first prong of the test (basis of knowledge); instead, at issue is solely the second prong: CI-1's veracity. To satisfy the veracity prong, an affiant must apprise the magistrate of “some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable” (citation omitted). Commonwealth v. Desper, 419 Mass. 163, 166 (1994).

Here, CI-1's credibility was “established by showing that information provided in the past by this informant has proved to be accurate.” Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 104 (2016), quoting Commonwealth v. Crawford, 410 Mass. 75, 79 (1991). The officer's affidavit stated that CI-1 had in the past provided “detailed information regarding the storage of a ‘block gun’ in a specific location in the North End of the city. As a direct result of the information provided by CI-1[, the affiant] seized a firearm along with ammunitions on December 9, 2016. For further details see New Bedford Police Department report number 16-15729-OF.” A natural reading of this portion of the affidavit is that CI-1 told a police officer where a firearm ² was located, and that “as a direct result,” police recovered a firearm and ammunition at the location CI-1 specified. The fact that the items were seized allows the reasonable inference that the firearm and ammunitions were contraband. See Commonwealth v. Santos, 94 Mass. App. Ct. 696, 701 (2019), quoting Commonwealth v. Kiley, 11 Mass. App. Ct. 939, 939 (1981) (“The reliability of [an] informant could be inferred from the recital that tips from him had led to the recovery of contraband at an earlier time”).

Although it is true that the affidavit would have been stronger had it explicitly stated that the firearm was illegal and of the same type and in the exact location that CI-1 had reported, our standard does not require such technical precision. See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991). Indeed, we allow “a certain leeway or leniency in the after-the-fact review of the sufficiency of applications for warrants,” Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 485 (2018), quoting Commonwealth v. Corradino, 368 Mass. 411, 416 (1975), and “even ‘the resolution of doubtful or marginal cases ․ should be largely determined by the preference to be accorded to warrants.’ ” Commonwealth v. Clagon, 465 Mass. 1004, 1004 (2013), quoting Commonwealth v. Anthony, 451 Mass. 59, 69 (2008).

CI-1's veracity is bolstered by additional facts in the affidavit. The officer-affiant knew the identity and current address of CI-1 and communicated with CI-1 during the investigation of the tip. See Commonwealth v. Alfonso A., 438 Mass. 372, 375-376 (2003), and cases cited (identification and availability of informant supports credibility). Additionally, CI-1's information provided a fair amount of detail, including a particularized description of the firearm as a “dark colored green 9mm firearm with a dark handle”; a sufficiently-detailed description of the defendant's physical characteristics that permitted another officer to know who was being described even without CI-1 providing the defendant's real name; ³ the specific location where the defendant operated (31 Nye Street, apartment 1); the names of two other individuals who also had been at the location (Jean Rodriguez and Jorge Rodriguez); the fact that the defendant was “actively selling cocaine” from the apartment; and CI-1's personal observations of the defendant in the apartment with cocaine packaged for street-level sale (in February, 2017) and in possession of the firearm (in February and March, 2017). See Alfonso A., supra at 376-377 (level of detail factor in “over-all assessment of the informant's reliability”).

Further, two other confidential informants (CI-2 and CI-3), whose identities and whereabouts were known to police, corroborated certain details of CI-1's information, thus bolstering CI-1's reliability. See Commonwealth v. Parapar, 404 Mass. 319, 323-324 (1989). Both CI-2 and CI-3 verified that they had seen an individual fitting the defendant's description inside 31 Nye Street, apartment 1. Further, CI-2 “had seen [the defendant] inside the residence at different times with Jorge Rodriguez.” CI-3, a known drug user, admitted to purchasing cocaine from the defendant at the apartment “on a number of occasions,” though CI-3 did not state when.⁴

Police investigation also corroborated a number of details in CI-1's tip. See Upton, 394 Mass. at 376 (“independent police corroboration can make up for deficiencies” in either prong of Aguilar-Spinelli test). An August 2016 report from an animal control officer showed that the defendant had given his address as 31 Nye Street, apartment 1. In addition, Jean Rodriguez was the registered subscriber for that apartment's utility service. Further, the officer-affiant found photographs on social media of the defendant together with Jorge Rodriguez.

For these reasons, we conclude that the affidavit set out sufficient bases to satisfy the veracity prong of the Aguilar-Spinelli test.

Order allowing motion to suppress reversed.

FOOTNOTES

2.   The record supplies no information as to what a “block gun” may be, but it is reasonable to infer that it is a firearm of some sort. See Webster's Third New International Dictionary 1011-1012 (2002) (defining “gun”).

3.   CI-1 described the defendant as “a thin Hispanic male in his late 20's with long black hair that is handicap[ped] and in a wheel chair,” and know to CI-1 by the nickname “Wise.” The officer-affiant relayed CI-1's description to another officer, who was able to suggest that the description matched the defendant. CI-1 then positively identified the defendant from his driver's license photo.

4.   While CI-3's statement against penal interest lent veracity to CI-3's information, Commonwealth v. Nowells, 390 Mass. 621, 626 (1983), the lack of time frame for the sales made the information less significant. See Commonwealth v. Luce, 34 Mass. App. Ct. 105, 109 (1993) (informant was “tender on the ‘basis of knowledge’ requirement” as information regarding drug activity “was relatively stale because it was six months old”).