Opinion
21-P-519
04-22-2022
COMMONWEALTH v. Hassan HINSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is an interlocutory appeal from an order denying the defendant's motion to suppress evidence that was seized following the execution of a search warrant at his home. Because we conclude that the judge was correct in his determination that the search warrant was adequately supported by probable cause, we affirm.
A single justice of the Supreme Judicial Court allowed the defendant's application, pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), for leave to pursue an interlocutory appeal in the Appeals Court.
Background. Detective Parousis, of the Fall River police department, applied for a warrant to search 370 Third Street, apt. 3, a white, multifamily dwelling marked 370 on the north side of the building. The application was supported by the detective's affidavit, which set forth the following facts. Within the previous week, the detective had spoken with a confidential informant (CI) who had previously "provided reliable information, which led to 3 arrests and seizures of crack cocaine, heroin and prescription pills. All three cases are still pending in court."
The CI told the detective that the CI had purchased "crack" cocaine "on a regular basis" from a man the CI knew as "H," who was a Black male in his thirties, approximately six feet tall, with a medium build and short, dark hair. The purchases took place at 370 Third Street, apt. 3, where "H" lived with his mother. When the CI went to purchase cocaine from "H," the CI would go through the door on the north side of the building, walk up the stairs to apartment three, knock on the door, and meet with "H" in the hallway.
Based on this information, the detective searched Fall River police records for 370 Third Street, apt. 3, and learned the defendant's full name and date of birth, the full name of the defendant's mother, and that they both lived at that location. The detective then searched the records of the Registry of Motor Vehicles and found a photograph of the defendant. The detective showed this photograph to the CI, who identified the defendant as the man the CI knew as "H."
When police executed the warrant that issued based on the above information, they found 6.5 grams of "crack" cocaine, a nine millimeter handgun and matching ammunition, and various other drug paraphernalia in the defendant's apartment. The discovery of these items led to the defendant being charged with two counts of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (h ), and one count of possession of a class B controlled substance with intent to distribute, in violation of G. L. c. 94C, § 32A (a ). The defendant filed a motion to suppress, arguing that the warrant application was not supported by probable cause. Following a hearing, the motion was denied. This interlocutory appeal followed.
Discussion. The defendant argues -- as he did below -- that the affidavit did not provide enough information to show that the CI was reliable, therefore, there was no probable cause. "When a search warrant affidavit is based on information supplied from an informant, art. 14 [of the Massachusetts Declaration of Rights] requires the magistrate to apply the familiar Aguilar-Spinelli standard, which requires that an affidavit based on information from a CI establish the CI's basis of knowledge and veracity." Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 81 (2020), citing Spinelli v. United States, 393 U.S. 410, 415 (1969) ; Aguilar v. Texas, 378 U.S. 108, 114 (1964) ; Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985). "Because a determination of probable cause is a conclusion of law, we review a search warrant affidavit de novo." Commonwealth v. Foster, 471 Mass. 236, 242 (2015). "When considering the sufficiency of a search warrant application, our review ‘begins and ends with the four corners of the affidavit.’ " Commonwealth v. Holley, 478 Mass. 508, 521 (2017), quoting Commonwealth v. Dorelas, 473 Mass. 496, 500-501 (2016).
The defendant concedes that the affidavit was sufficient to establish that the CI had a sufficient basis of knowledge for the information the CI conveyed to police. At issue is only whether the affidavit contained enough information to establish the CI's veracity. The veracity prong of the Aguilar-Spinelli test is satisfied by a showing of "some of the underlying circumstances from which the affiant concluded that the informant was ‘credible’ or his information ‘reliable’ " (quotations and citations omitted). Upton, 394 Mass. at 375. This showing may be made in a number of ways: police surveillance of the suspect that corroborates the CI's information, Commonwealth v. Russell, 46 Mass. App. Ct. 513, 519 (1999) ; police corroboration through investigation of " ‘nonobvious [and predictive] details’ provided by the informant," Commonwealth v. Bakoian, 412 Mass. 295, 302 (1992), quoting Commonwealth v. Lyons, 409 Mass. 16, 21 (1990) ; or the corroboration of one CI's tip through information provided by other informants. Commonwealth v. Rabb, 70 Mass. App. Ct. 194, 204 (2007).
Furthermore, "[a]n inference of trustworthiness of an informant [may be drawn] where the information he furnished has led ... to actual convictions; specificity about the convictions, which would trench more or less on the informant's anonymity, is not demanded." Commonwealth v. Shea, 28 Mass. App. Ct. 28, 31 (1989). To be sure, "[a] naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish the informant's veracity," Commonwealth v. Rojas, 403 Mass. 483, 486 (1988), because "[a]n arrest may turn out to be a dud, not resulting in a conviction, which would suggest that the underlying representation was awry and not a proof of the trustworthiness of the informant who made it." Shea, supra. But where, as here, the affiant avers that in the past the CI provided information that led to arrests and the concomitant seizure of contraband, the veracity prong of the Aguilar-Spinelli test is satisfied. See Commonwealth v. Crawford, 417 Mass. 40, 43 (1994) (testimony by officer that CI had, "in the past year, given information which led to the arrest and indictment of two unnamed persons and the seizure of over a kilogram of cocaine," satisfied veracity prong of Aguilar-Spinelli test); Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991) (recitation in search warrant affidavit that informant's prior tip "had led not only to arrests, but also to seizure of cocaine ... warranted an inference that the informant was reliable"); Commonwealth v. Grady, 33 Mass. App. Ct. 917, 917-918 (1992) ("affidavit furnished probable cause for issuance of the warrant" where it was based on information from informant who had provided information leading to arrest of four unnamed persons and seizure of narcotic drugs and illegal firearm).
Here, the affidavit asserted that the CI had provided information leading to three arrests and "seizures of crack cocaine, heroin, and prescription pills," which had led to pending criminal charges. Police were also able to corroborate certain "nonobvious" details about the defendant, such as the fact that he lived with his mother at the apartment where the CI purchased cocaine from him. See Bakoian, 412 Mass. at 302. Although the affidavit is not particularly robust, it falls within Supreme Judicial Court's decisions in Perez-Baez and Crawford, and this court's decision in Grady. Accordingly, the motion judge did not err in denying the defendant's motion to suppress. See Commonwealth v. Padilla, 42 Mass. App. Ct. 67, 70 (1997).
The defendant is correct that the affidavit is drafted in such a way that it is not clear whether the CI had provided tips in three separate matters or one tip that led to three arrests.
Order denying motion to suppress affirmed.