Opinion
19-P-283
12-23-2019
COMMONWEALTH v. Tu T. HUYNH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions on various charges involving possession of a firearm. The firearm in question was seized in the defendant's home during a search conducted pursuant to a search warrant, and the defendant claims that the warrant was issued based upon stale information from a confidential informant (CI), and without probable cause. We affirm the convictions.
Background. The police searched the defendant's home in Worcester pursuant to a warrant on October 4, 2017. They seized a loaded firearm and some pills of a class B controlled substance. The warrant application dated September 29, 2017 was supported by a ten-page affidavit from a Massachusetts State Police trooper. Reduced to its essence, the affidavit stated the following:
1. Over "several months" prior to September 2017, the trooper had "regularly received" information from the CI regarding illegal firearm and drug distribution activity in the greater Worcester area. In particular, the CI had provided information that the defendant, who was known to the CI as Tu, was the leader of a street gang, and was involved in the sale of various illegal drugs.
2. The CI also provided specific information about where the defendant lived, who else resided with him, and what was in his home. In particular the CI stated that they had been inside the defendant's home, and had observed a specific nine millimeter handgun inside the defendant's residence on "several separate occasions over the last two years." The CI described the handgun in detail, noting that part of the handle had been broken off, and that black electrical tape was wrapped around the handle. The CI stated that the last time they had seen the handgun in the defendant's home was around the end of June 2017.
3. As to the background and reliability of the CI, the trooper's affidavit stated that he knew the CI's true identity, and that the CI had "provided information in the past which ha[d] led to the recovery of illegal narcotics and firearms." The trooper further stated that the CI "ha[d] assisted in past investigations that led to the issuance of search warrants, the recovery of narcotics and firearms, as well as guilty dispositions in both Worcester District and Superior Courts."
4. Finally, the affidavit described the trooper's efforts to corroborate the CI's information. The trooper had confirmed the defendant's address, the persons who lived with the defendant, and that the defendant was not licensed to carry a firearm. The trooper also reviewed the defendant's criminal record, and learned that six years before, in 2011, the police had found an unregistered handgun in the defendant's home, under his pillow.
The District Court judge denied the defendant's motion to suppress the firearm. The defendant was thereafter convicted of possession of a large capacity firearm, G. L. c. 269, § 10 (m ) ; improper storage of a large capacity firearm, G. L. c. 140, § 131L (a ), (b ) ; improper storage of a firearm, rifle, or shotgun near a minor, G. L. c. 140, § 131L (a ), (c ) ; receipt of stolen property with a value greater than $250, G. L. c. 266, § 60 ; and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ) (1).
Discussion. 1. Staleness. The defendant first argues that the CI's information regarding the gun in the defendant's home was too stale to support a warrant as of September 29, 2017. While the CI stated that they had personally observed the gun, the last time they had seen it was "around the end of June 2017" -- three months before. An observation from three months before, says the defendant, was too remote to establish probable cause that the gun would be in the home in September.
The legal framework for the probable cause analysis is a familiar one. The information in the affidavit must be adequate to establish a "timely nexus" between the defendant, the location to be searched, and the contraband or other items sought. Commonwealth v. Santiago, 66 Mass. App. Ct. 515, 521 (2006), quoting Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651 (2005). "The probable cause standard does not require a showing that evidence more likely than not will be found; in other words, it is not equivalent to a preponderance of the evidence standard. Rather, ‘probable cause’ means merely that quantum of evidence from which the magistrate can conclude, applying common experience and reasonable inferences, that items relevant to apprehension or conviction are reasonably likely to be found at the location." Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509 (2019).
Our review of the probable cause determination is de novo, based on the information in the four corners of the warrant affidavit and any attachments. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In conducting our review, our cases emphasize that we should be practical, and nontechnical: "In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act" (citation omitted). Commonwealth v. Anthony, 451 Mass. 59, 68 (2008).
The question whether facts in a warrant affidavit are too stale to establish probable cause has been frequently addressed in our courts, most recently in Murphy, 95 Mass. App. Ct. at 509, and in Commonwealth v. Hart, 95 Mass. App. Ct. 165 (2019). The question is highly fact dependent, see Commonwealth v. Connolly, 454 Mass. 808, 814 (2009), although the cases do provide some helpful guideposts.
The Hart case provides one such guidepost. Like this case, Hart addressed a warrant to search for a gun in a home. Hart, 95 Mass. App. Ct. at 166. However, in Hart the warrant affidavit stated that the gun had been observed only once, some sixty days before. Id. We held in Hart that the single observation was insufficient, but in doing so we were careful to limit the holding to those particular facts: "In short, a single observation of a firearm in a residence sixty days prior to the application for a search warrant does not establish probable cause ...." Id. at 169.
At the other end of the spectrum are cases such as Murphy, 95 Mass. App. Ct. at 506-507, in which the warrant affidavit detailed continuing criminal activity, occurring at a location for a sustained period. In such cases our courts have been willing to allow reliance on information that is more remote in time, reasoning that the evidence that the criminal activity had been ongoing for an extended period would support an inference that it continued for a reasonable time thereafter. See Commonwealth v. Pratt, 407 Mass. 647, 662 n.14 (1990) ; Hart, supra at 511. The cases regarding firearms reflect this commonsense principle, allowing for longer time gaps where the evidence showed more continuous firearm possession. See Commonwealth v. Beliard, 443 Mass. 79, 84-86 (2004) (time gap of approximately six weeks; "in circumstances showing continuous illegal presence of a number of weapons in the defendant's residence over extended periods of time ... the time frame for executing the warrant was of less significance"); Commonwealth v. Fleurant, 2 Mass. App. Ct. 250, 255 (1974) ("passage of time ... less significant" where affidavit indicated "protracted and continuous" activity involving possession of firearms [citation omitted] ). Cf. Hart, 95 Mass. App. Ct. at 168 (distinguishing cases involving "substantial facts ... from which it could be reasonably inferred that possession of the firearms was continuous").
Another frequently cited staleness factor is whether the item in question is "durable" -- meaning that the item is "not likely to be consumed or destroyed." Hart, 95 Mass. App. Ct. at 168, quoting Fleurant, 2 Mass. App. Ct. at 255. If the item is durable, then it is more likely to be present for a sustained period. Drugs, for example, are not considered to be durable. Firearms are generally considered to be more durable. Fleurant, supra. See Commonwealth v. Scanlan, 9 Mass. App. Ct. 173, 181 (1980) (reasoning that object of search, a sledgehammer, "had been used in a continuing pattern of criminal conduct," and was thus likely to remain in defendant's possession).
Here the facts set forth in the affidavit were sufficient to overcome a staleness objection. Most critically, the CI had seen the gun in the defendant's home "several times" over an extended period -- two years. This detail distinguishes this case from Hart, and brings it closer to the cases involving continuing criminal activity. Applying the commonsense, "practical" approach of the case law, we think that multiple observations of the same gun, in a home, over a two-year period, were sufficient to establish a "reasonable likelihood," Murphy, 95 Mass. App. Ct. at 509, that the gun would be found in the home three months after the last observation. While the question is a close one, we believe the motion to suppress was correctly denied on these facts.
This conclusion finds some support in the fact that the police had previously found the defendant in possession of a gun in his home. Even though that event was dated -- six years prior -- the information adds some weight (particularly where the CI stated that the defendant currently kept the gun under his pillow) and should not be ignored in the overall factual calculus.
2. The CI. The defendant also challenges probable cause on the ground that the warrant affidavit did not establish the reliability of the CI's information. When an affidavit is based on information from a confidential informant, we examine whether the affidavit establishes (1) the informant's "basis of knowledge," and (2) the informant's veracity, "i.e., that [they were] credible or [their] information reliable." Commonwealth v. Santos, 94 Mass. App. Ct. 696, 699 (2019). Here the affidavit plainly established the CI's basis of knowledge -- first-hand observation of the gun. The remaining question is whether the affidavit sufficiently established the CI's "veracity," where the CI was not identified.
The affidavit was sufficient. To begin, the CI's identity was known to the police, as was the CI's address. The CI could thus be held accountable for providing false information. This fact provides support for a finding of veracity. Santos, 94 Mass. App. Ct. at 699. This is not a case, for example, involving an anonymous tipster. See, e.g., Commonwealth v. Mubdi, 456 Mass. 385, 396-397 (2010). Moreover, the affidavit stated that the CI had previously provided information that led to the recovery of guns and illegal drugs, and assisted in investigations that resulted in successful criminal prosecutions. And finally, the CI's information was itself detailed, and partially corroborated; the CI described the gun with particular detail, and the CI's description of the family, corroborated by investigation, reasonably demonstrated that the CI in fact knew the defendant and his family, and had been inside the defendant's home. See Commonwealth v. Alfonso A., 438 Mass. 372, 376 (2003) ("[detail is] a factor in the over-all assessment of the informant's reliability"). Viewed as a whole, and in a "commonsense, nontechnical" fashion, the affidavit established the CI as a person who could appropriately be relied on. Commonwealth v. Saleh, 396 Mass. 406, 412 (1985). See Anthony, 451 Mass. at 68.
Relying primarily on Commonwealth v. Rojas, 403 Mass. 483 (1988), the defendant contends that the affidavit is too "vague" and "generic" as to the CI's track record. In Rojas, however, the only history provided was that the CI previously had supplied information leading to an arrest -- as opposed to a conviction or the actual recovery of contraband. Id. at 486. The Supreme Judicial Court subsequently distinguished Rojas in Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991), because in Perez-Baez the CI's information had led to a successful seizure of contraband. In ruling that the affidavit in Perez-Baez had sufficiently established the informant's veracity, the court concluded: "In this case, however, the affidavit recited that the prior tip had led not only to arrests, but also to seizure of cocaine. The distinction is critical." Id.
Here, as in Perez-Baez, the affidavit stated that the CI's information had "led to the recovery of illegal narcotics and firearms." The affidavit thus satisfied the veracity test. The defendant criticizes the affidavit's language as insufficiently specific, pointing out that it lacked details about what was seized, who was convicted, and for what crimes. While such detail would of course make the probable cause determination easier, we are unwilling to say that it is required. The question, rather, is whether the information that was provided was enough, when viewed in a common sense fashion. Put another way, the question is whether it was reasonable for the magistrate to rely on the CI's information about the location of the gun, where the trooper swore under oath that the CI had previously provided information that led to the recovery of contraband, and where the CI was known to the trooper and could be located if the CI provided false information this time. We conclude that the affidavit was sufficient under the circumstances, and the judge did not err in denying the motion to suppress.
Judgments affirmed.