Opinion
15-P-990
07-20-2017
COMMONWEALTH v. Charles STEED.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of one count of possession of a class B substance. On appeal, he argues that (1) a judge (first judge) erred in denying his motion to compel discovery related to a confidential informant, and (2) a different judge (second judge) erred in denying his motion to suppress the fruits of the warrantless stop of his motor vehicle. We affirm.
The defendant was charged, inter alia, with possession with intent to distribute a class B substance, and possession with intent to distribute a class B substance in a park zone. The jury found him guilty of the lesser included offense of possession of a class B substance, and not guilty of possession with intent to distribute a class B substance in a park zone.
Background. In the months leading up to November 16, 2012, Detective Ross of the Boston police department received information from a confidential informant about a man selling large quantities of "crack" cocaine in the Roxbury and Dorchester sections of Boston. The informant described the man as black with black hair, approximately five feet, eleven inches tall, and weighing approximately 180 pounds. Within four months of November 16, 2012, and again within three months of November 16, 2012, members of the Boston police drug control unit had the confidential informant conduct controlled purchases of cocaine from the aforementioned man. In both instances, officers observed the informant enter a gray Dodge Charger automobile bearing Massachusetts registration 841RJ8, wherein a drug transaction took place. According to the findings in the second judge's order denying the motion to suppress, after the first controlled buy, "[a]n officer saw a black male fitting the general description of the seller exit the Charger and enter the rear of 112 Glenway Street" in Dorchester. On two other occasions, one within one month of November 16, 2012, and one within seventy-two hours of November 16, 2012, the informant conducted similar controlled purchases of cocaine from the same man, which likewise occurred inside the same gray Charger.
After the first two controlled purchases, but before the latter two controlled purchases, Detective Ross observed the same gray Charger on Washington Street in Roxbury. Drug control unit officers followed the Charger and Officer Michael McManus stopped the vehicle. The defendant, who was the driver of the vehicle, presented a license with the name "Kevin Maxwell." During the stop Officer McManus took a photograph of the defendant. Detective Ross showed this photograph to the confidential informant, who identified the man depicted therein as the same man who had sold cocaine to him inside the Charger in the two prior controlled buys.
Based on the above-referenced investigation, Detective Ross submitted an application for three search warrants. On November 16, 2012, the officers obtained three search warrants to search the person of Kevin Maxwell, the gray Charger, and 112 Glenway Street. That day, officers stopped the Charger. The defendant, again the operator of the vehicle, identified himself as Kevin Maxwell. The officers advised him that they had a warrant to search the person of Kevin Maxwell, and the defendant responded that his name was actually Charles Steed. He was arrested and, during transport to the police station, officers recovered crack cocaine from the floor of the cruiser near where the defendant was sitting, and recovered capsules of a substance believed to be heroin from the defendant's person at the police station. The officers recovered additional drugs and drug-related items during the search of 112 Glenway Street.
The defendant was also charged with possession with intent to distribute a class A substance, subsequent offense, and possession with intent to distribute a class A substance in a park zone. The Commonwealth represented that the substance ultimately did not test positive for heroin, and these two counts were dismissed upon the Commonwealth's motion prior to trial.
Discussion. 1. Motion to compel discovery. In Commonwealth v. Amral, 407 Mass. 511, 522 (1990), the Supreme Judicial Court held that "the public interest in deterring police misconduct requires the trial judge to exercise his or her discretion to order an in camera hearing where the defendant by affidavit asserts facts which cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant." Relying on Amral, the defendant moved, before trial, to compel discovery relating to the confidential informant. The motion sought, inter alia, police logs, currency records, surveillance logs, and officers' notes. As grounds for the motion, the defendant asserted, inter alia, (1) that the search warrant affidavit contained references to the controlled buys made by the confidential informant; (2) that the requested "information should exist if these controlled buys were executed as described in the search warrant affidavit in this case"; (3) that the records are not privileged; and (4) that the "defendant will seek to assert that the search warrant affidavit in this case contains material and intentional misrepresentations that require suppression of any evidence found as a result." Defense counsel submitted an affidavit in support of the motion, adding that the "Dodge Charger was owned by a rental car company and was rented by the defendant's cousin for a few weeks prior to the defendant's arrest. The vehicle was not rented for a four month period."
The first judge held a hearing and subsequently denied the motion. The judge's margin order ruled as follows:
"Following hearing and review, motion DENIED. Nothing contained in this motion or the argument at hearing meets the Amral standard. To the contrary, the request—at least at this stage—is based on less than suspicion, but rather layers of speculation."
On appeal, the defendant contends that the judge abused her discretion in determining that the defendant failed to meet the Amral standard because defense counsel's affidavit in support of the defendant's motion to compel "cast[s] a reasonable doubt on the veracity of the material representations" made in the search warrant affidavit. Specifically, he argues that the allegation that the defendant's cousin only rented the Charger for about three weeks before the defendant was arrested "casts doubt on the warrant affidavit's timeline for the four controlled buys, creating a fact-based suspicion that the controlled buys did not occur." We disagree.
"Mere suspicion that there was no informant, or that the informant's ‘reliability’ credentials have been misstated, or that his information was other than as recited by the affiant, is not enough to trigger an in camera hearing, but an assertion of facts tending to confirm such a suspicion is sufficient." Amral, supra. Here, the defendant failed to make the required showing under Amral. The search warrant affidavit delineates a time frame of controlled buys made "within the last four months," "within the last three months," "within the last month," and "within the last seventy-two hours." This timeline is not inconsistent with the defendant's assertion that his cousin had rented the Charger for only the three weeks leading up to the defendant's arrest and execution of the search warrants; all four of the controlled buys could have taken place within a three-week time frame. Far from casting doubt on the informant's credibility, the rental records corroborate, at least in part, the observations of the officers and the informant's reports. The defendant's assertion that the officers fabricated the controlled buys is predicated on conjecture, and the assertion is not supported by his counsel's affidavit. Ibid. Indeed, the first judge recognized as much when she stated at the hearing that "what I've heard so far, it seems to me to be speculation on top of speculation on top of speculation." This does not constitute an assertion of facts "which cast a reasonable doubt on the veracity of the material representations made by the affiant concerning a confidential informant" contemplated by our precedent. Ibid. See Commonwealth v. Douzanis, 384 Mass. 434, 443 (1981). Accordingly, on the record before us, we cannot say that the judge abused her discretion in denying the motion to compel.
Furthermore, defense counsel's affidavit did not aver that the defendant only had access to the Charger during the three weeks that his cousin rented the vehicle; did not aver that the defendant had no access to the Charger during any part of the four-month or three-month period preceding the submission of the search warrant affidavit; and did not aver that the Charger was rented, during the relevant time period, to persons unknown to the defendant.
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2. Motion to suppress. In denying the motion to suppress, the second judge found that:
"The information known to the officers at the time of the car stop provided probable cause to believe that the seller and driver in the first two controlled buys had committed the crack sales inside the 841RJ8 Charger that ... the defendant was driving at the time of the car stop. The stopping of the Charger and the defendant and photographing of the defendant amounted to a Terry investigative stop. The totality of the officers' information and reasonable inferences at the time of the car stop gave them a reasonable basis, based on specific, articulable facts, to suspect that the defendant was the seller-driver in the two crack sales that had taken place in the 841RJ8 Charger.
"The intrusion involved in stopping and photographing the defendant while he remained seated in the driver's seat was proportional to the level of information that the officers had regarding the two crack sales in the Charger.... Probable cause to arrest the defendant was not necessary for the investigative stop. A reasonable basis to suspect the defendant of being involved in the two crack sales was what was necessary."
The defendant claims, "on grounds of staleness," that there was a lack of probable cause or reasonable suspicion to stop the Charger and photograph the defendant. We disagree.
The Commonwealth contends that the issue of "staleness" was not raised by the defendant in the motion to suppress, supporting affidavit, memorandum of law, or at the motion hearing, and thus the defendant's claim is waived. See Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 374 (2010). See also Mass.R.Crim.P. 13(a)(2), as appearing in 422 Mass. 1516 (2004). Although there is a measure of persuasiveness to the Commonwealth's argument, we will assume that the issue was properly preserved.
As to the merits of the defendant's claim, we agree with the second judge that the totality of circumstances support the conclusion that the officers had a reasonable, articulable basis to believe that the defendant driving the Charger was the same seller-driver in the two recent controlled buys occurring in the same vehicle. Indeed, Detective Ross testified at the motion hearing that in stopping the Charger, the officers "knew the operator was involved in a distribution of crack cocaine." He further acknowledged that prior to the motor vehicle stop, the informant had made two confidential buys of suspected narcotics "[f]rom the same gentlemen driving the vehicle." Accordingly, in the context of this specific case, the police had reasonable suspicion to effectuate the stop. The stop and photograph were minor invasions, proportional to the information in the officers' possession. We discern no error in the judge's rulings. See Commonwealth v. Watson, 430 Mass. 725, 732 (2000).
Judgment affirmed.