Opinion
No. 13–P–436.
2014-01-31
COMMONWEALTH v. James W. KUSZEWSKI.
Commonwealth v. Upton, 394 Mass. 363, 375 (1985), quoting from Aguilar v. Texas, 378 U.S. 108, 114 (1964). The information in the affidavit here was sufficient to satisfy both the basis of knowledge and the veracity prongs. First, the affiant stated that CI–1's basis of knowledge that drugs were being shipped and delivered in the manner CI–1 described was CI–1's personal knowledge. See O'Day, supra at 301. Second, from the level of detail contained in the information provided by CI–1, “[i]t could be inferred that the informant had direct knowledge [of the defendant and his criminal activities], based on his personal observation and contacts which went materially beyond a casual rumor ... or an accusation based merely on an individual's general reputation.” Commonwealth v. Cast, 407 Mass. 891, 897 (1990) (quotation and citation omitted). CI–1's veracity was established as well. “[T]he officers knew the identity of the informant and his [or her] ‘whereabouts.’ “ O'Day, 440 Mass. at 301–302 (citation omitted). Furthermore, any deficiency in the showing of CI's basis of knowledge or veracity was cured by police corroboration of the information CI–1 provided. As the motion judge noted, the police confirmed the identity of “Sea Otter,” the location of the white tractor trailer truck at the time specified by CI–1, and the details of the April and May shipments to New York and Massachusetts. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 104 (1997). Furthermore, as the judge found, “the nature of the activity observed by the police itself was suspicious and highly indicative of drug distribution.” See id. at 105. In addition, almost every participant in the crimes at issue had prior charges or convictions of drug crimes, and the conviction of codefendant Joseph Verrelli had arisen from the execution of a search warrant at 84 Warwick Road, Royalston—one of the properties involved in the instant case—during which officers found marijuana, money, cocaine, scales, packaging materials, ledgers, and personal papers of Verrelli. See Commonwealth v. McCoy, 59 Mass. 284, 286 (2003). Although the charges listed were, in some cases, a number of years old, the motion judge could consider that CI–1 correctly told the officers that Sea Otter had previously been convicted of a crime involving marijuana, and that one of the addresses at issue had been the site of prior drug crimes. See Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 108 n. 9 (2007). In any event, the judge did not rely heavily upon the prior charges or convictions in determining that probable cause had been shown, mentioning that fact only in passing. Contrast Commonwealth v. Allen, 406 Mass. 575, 579–580 (1990).