COMMONWEALTH v. VELEZ GONZALEZ (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant filed a motion to suppress evidence seized pursuant to a search warrant. The motion was allowed by a judge of the District Court. The Commonwealth's motion to file a late notice of appeal and to extend the time for filing its application for leave to appeal was allowed by a second judge of the District Court. The Commonwealth filed with that motion a notice of appeal, and subsequently filed an application for leave to appeal the judge's order. The single justice of the Supreme Judicial Court allowed the Commonwealth's application, and the Commonwealth's interlocutory appeal is now before us.

The sole question before us is whether the veracity of a confidential informant had been shown sufficiently by the affidavit in support of the application for the search warrant to support a probable cause determination. The confidential informant told police that he had purchased cocaine from a man he identified as the defendant from inside of 24 Warren Street, apartment 1. His statement about the purchase of the drugs from the apartment provides a sufficient basis of information to support a conclusion that probable cause was demonstrated. As to veracity, in his affidavit, the officer seeking the warrant swore that the confidential informant, “has proven reliable in the past, providing detailed information, which resulted in an arrest and seizure of narcotics.” A statement such as this has been held to support a finding of veracity sufficient to support a probable cause determination. See Commonwealth v. Velez, 77 Mass. App. Ct. 270, 273 (2010).

In light of this, the affidavit supported a determination of probable cause, the warrant properly issued, and the order allowing the motion to suppress must be reversed. As the informant's veracity was otherwise established, we need not reach the question whether there was sufficient information in the affidavit from which the judge could have concluded that the building at 24 Warren Street from which the confidential informant made a controlled buy was sufficiently small that it was immaterial that the police did not see the informant enter the apartment in question. Cf. Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 84-85 (2020).²

Order allowing motion to suppress reversed.

FOOTNOTES

2.   We note that appellee did not file a brief, but submitted an affidavit of counsel stating in part “After a thorough review of the materials presented in this appeal as well as the legal environment within which this appeal finds itself, I have reached the conclusion that there is no pathway for a successful outcome․ After a conversation with Mr. Velez-Gonzalez, he clearly and unequivocally granted me permission to forgo filing any brief on his behalf and assent to the conclusions reached by the Commonwealth per their appellant brief.”