Opinion
No. 11–P–1449.
2012-07-3
COMMONWEALTH v. Angelo TEIXEIRA.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Angelo Teixeira, was charged with possession of marijuana with intent to distribute. After a motion to suppress was allowed by a Boston Municipal court judge, the Commonwealth was granted leave to file an interlocutory appeal, (by a single justice of the Supreme Judicial Court). The motion judge, in a memorandum accompanying his allowance of the motion to suppress the items found in the search, concluded that the information contained in the affidavit in support of the search warrant failed to establish the veracity of the confidential informant who had participated in controlled purchases of marijuana from the defendant. On appeal, the Commonwealth argues that the items seized pursuant to a search warrant, which expressly authorize a search of the defendant's residence at 7 Hamlet Street in Dorchester, should not be suppressed because the affidavit is not defective. The defendant, in addition to urging this court to affirm the motion judge's order, also moves to dismiss the appeal, contending that the Commonwealth did not timely file its notice of appeal pursuant to Mass.R.Crim.P. 15(b)(1), 422 Mass. 1501 (1996). We conclude that the Commonwealth's appeal was timely, and agree with the Commonwealth that the motion judge erred in allowing the defendant's motion to suppress.
1. Procedural and factual background. Detective Michael Ross, a Boston police officer assigned to the drug control unit, received information from a confidential informant indicating that an Hispanic male operating under the name “Gilo” was selling marijuana from apartment 1 at 7 Hamlet Street in Dorchester. Through a search of computerized police records, Ross determined that the occupants of apartment 1 were Nelson Teixeira and the defendant. Ross then arranged to use a confidential informant with whom the Boston police had worked in the past and whose tips had led to arrests and convictions to conduct three controlled purchases of marijuana from the defendant.
During the controlled purchases, the confidential informant was searched by the police and found not to have money or drugs on his person. Thereafter, the police department provided the informant with money for use in the controlled purchase. During each controlled purchase, Ross observed the confidential informant enter the building at 7 Hamlet Street. Approximately five minutes later, the informant met Ross at a prearranged location and delivered the marijuana to him. The confidential informant stated on each occasion that the transaction had occurred in the doorway to apartment 1. During the first controlled purchase, Ross also showed the confidential informant a photograph of the defendant obtained from police records, and the informant verified that the defendant was the person who sold him the marijuana. Based on this information, Ross submitted an affidavit in support of an application for a search warrant for the premises at the defendant's apartment, which was granted. The police seized marijuana, a scale, cash, a cell phone, and papers identifying the defendant from the apartment.
The defendant was charged with possession of marijuana with intent to distribute in the Boston Municipal Court. Prior to trial, the defendant filed a motion to suppress evidence seized as a result of the search of his apartment. After a hearing, on October 21, 2010, the judge allowed the defendant's motion. The Commonwealth filed its notice of appeal on November 26, 2010. Thereafter, on February 2, 2011, the Commonwealth filed an application for leave to file an interlocutory appeal from the judge's order allowing the defendant's motion to suppress with a single justice of the Supreme Judicial Court. On February 22, 2011, the single justice allowed that motion and the appeal was directed to this court.
2. Discussion. a. Timeliness of the Commonwealth's notice of appeal. The defendant argues that the Commonwealth's appeal should be dismissed because the Commonwealth filed its notice of appeal more than ten days after the issuance of notice of the judge's order allowing the defendant's motion to suppress. The defendant cites Mass.R.Crim.P. 15(b)(1), which provides, in pertinent part: “An application for leave to appeal [an order determining a motion to suppress] shall be made by filing within ten days of the issuance of notice of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a notice of appeal in the trial court, and (b) an application to the single justice of the Supreme Judicial Court for leave to appeal.” The defendant thus contends that, because the Commonwealth late filed its notice of appeal, this court lacks jurisdiction and the appeal should be dismissed. See Commonwealth v. McConaga, 79 Mass.App.Ct. 524, 528 (2011).
The defendant does not contest that the Commonwealth was granted leave to late file its application to the single justice.
At the conclusion of the hearing on the motion to suppress, the judge made clear that he intended to allow the Commonwealth additional time to decide whether to appeal his ruling. The judge said, “I'll give you a date, Commonwealth, if you want to take it up, O.K.?” The Commonwealth replied, “Thank you, Judge.” The judge then sought a date from the parties on which the case could proceed to trial (in the event that the Commonwealth decided not to appeal), and the defendant suggested December 8, 2010. The judge then asked, “Does that give you enough time, Commonwealth, do you think?” The Commonwealth replied, “Yes, thank you.” In agreeing on that date, therefore, the judge implicitly allowed the Commonwealth until that time to file its notice of appeal, as he was permitted to do by Mass.R.Crim.P. 15(b)(1), which permits the filing of a notice of appeal within “such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order.” We will not disturb the agreement. The better practice, however, would have been for the judge to have set a date for the filing of a notice of appeal, which would have avoided the issue.
b. The defendant's motion to suppress. The Commonwealth contends that the judge erred in allowing the defendant's motion to suppress because the information contained in the affidavit submitted in support of the application for a search warrant was sufficient to establish the veracity of the information obtained from the confidential informant. We agree.
When an affidavit submitted in support of a search warrant relies on information obtained from a confidential informant, to establish probable cause, “the magistrate must ‘be informed of (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was “credible” or his information “reliable” (the veracity test).’ “ Commonwealth v. Upton, 394 Mass. 363, 375 (1985), citing Aguilar v. Texas, 378 U.S. 108, 114 (1964). “If the informant's tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause.” Ibid., citing Spinelli v. United States, 393 U.S. 410, 415 (1969). In other words, while “[e]ach prong of the Upton standard, the basis of knowledge and the veracity of the informant, must be separately considered and satisfied,” nevertheless “police corroboration of an informant's detailed tip can compensate for deficiencies in either or both prongs of the standard, and thus satisfy the art. 14 probable cause requirement.” Commonwealth v. Warren, 418 Mass. 86, 88–89 (1994). Our review of the sufficiency of the showing to justify issuance of the search warrant “begins and ends with the four corners of the affidavit.” Commonwealth v. O'Day, 440 Mass. 296, 297 (2003).
The defendant concedes that the basis of knowledge test is satisfied, since the confidential informant reported purchasing drugs from the defendant in the doorway to his apartment on three occasions. We therefore turn to the veracity test. The Supreme Judicial Court has made clear that a controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant, see Commonwealth v. Luna, 410 Mass. 131, 134 (1991), even where, as here, the police did not observe which of multiple apartments the informant entered. See Warren, supra at 90. In addition to the three controlled purchases, the affidavit made clear that the informant was known to the police; that the informant had provided information that led to arrests and convictions in the past; and that the informant had identified the defendant from a photograph. Taken together, these facts demonstrated the informant's veracity and provided probable cause to search the defendant's apartment. See Warren, supra.
The order granting the motion to suppress is reversed and the matter is remanded to the Boston Municipal Court for trial.
So ordered.