Opinion
No. 95-966 to 95-968
June 26, 1996
FINDING OF FACTS, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
INTRODUCTION
Over a period of approximately three months between November 1994 and February 1995, Lieutenant Kelley conducted an undercover investigation of the defendant, Massachusetts State Trooper Peter LaRosa, while the defendant acted in his capacity as a Registry of Motor Vehicles Driving Test Inspector. Based on information collected during this investigation, Lieutenant Kelley sought three search warrants on February 15, 1995 enabling him to search the defendant's person, his car and his home.
Lieutenant Kelley attached affidavits involving the investigation of the defendant, dated November 16 and 18, 1994, to his February 15, 1995 affidavit, indicating that the February 15, 1995 affidavit should include information from all three affidavits.
Lt. Kelley indicated in the February 15, 1995 affidavit that "[c]opies of the November 16 and 18 search warrants, and supporting applications and affidavits, are attached herto and incorporated herein for all purposes." The affidavits from November 16 and 18, 1994 are not stale, because when "an affidavit recites activity indicating protracted or continuous conduct, time is of less significance." Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975), quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973); see also Commonwealth v. Spano, 414 Mass. 178, 184-85 (1993) (observations over several months up to 48 hours of making affidavit); Commonwealth v. Burt, 393 Mass. 703, 716 (1985) (five-month long conspiracy to steal parking meter receipts).
FINDINGS OF FACT
From the text of the affidavit submitted by Detective Lieutenant John J. Kelley of the Massachusetts State Police to a Superior Court Judge in support of the commonwealth's effort to obtain a search warrant, this Court finds the following facts.
Lieutenant Kelley's affidavit recites that he learned from confidential informant (CI) Helio Barbosa on October 19, 1994 that Barbosa had, for several years, assisted in excess of fifty individuals (customers) from the New York-New Jersey area to unlawfully obtain Massachusetts driver's licenses without taking a road test. Lieutenant Kelley indicated that he had learned from U.S. Immigration and Naturalization Service Special Agent Walter J. Novak that Barbosa had previously provided confidential, reliable and accurate information to Novak, the U.S. Secret Service, the Drug Enforcement Administration and local police. Information supplied by Barbosa led to the arrest and conviction of at least one individual for cocaine distribution and the seizure of approximately 500 grams of cocaine.
Lieutenant Kelley's affidavit recites that Barbosa informed Lieutenant Kelley that Barbosa had accompanied his customers, who Barbosa believed were illegal aliens and who had little or no proof of citizenship in the United States, to Alfredo Centeio, owner of Safety Driving School in Somerville. Centeio, according to Barbosa, would, for an additional $200, bribe a police officer to sign the customers' learner's permit as though the individual had taken and passed a driving road test, even though the officer would not administer the test. Barbosa told Lieutenant Kelley that Centeio met him and his customers at the Somerville Armory, where Centeio said the policeman who takes the bribe money works. Barbosa described the policeman whom he had observed dealing with Centeio at the Somerville Armory as a white male, 5'11" to 6'0", dark hair and glasses. Lieutenant Kelley noted that this description is consistent with the appearance of the defendant, Trooper Peter LaRosa.
Lieutenant Kelley's affidavit indicates that on or about November 2, 1994, outside of the Registry of Motor Vehicles at the Somerville Armory, Barbosa observed the license plate of a light green Mercedes Benz belonging to the policeman who Barbosa believed accepted the bribe money: MA reg. 110Z. After Barbosa informed Lieutenant Kelley of this information, Lieutenant Kelley checked the plate number with the Registry and learned that the plate was listed to the defendant, Trooper Peter LaRosa, 313 Governors Drive, Winthrop, MA.
Lieutenant Kelley learned from State Trooper Jose Alejandro that on January 11, 1995 Trooper Alejandro had operated undercover as a customer seeking an illegal driver's license. Trooper Alejandro pretended to be a customer of Barbosa's, agreeing to pay $200 in order to obtain a driver's license without having to actually take an on-the-road driving test. Trooper Alejandro met Barbosa, Alfredo Centeio and an actual customer of Barbosa's by the name of Jorge Aca at the Safety Auto School in Somerville, this being the driving school owned by Centeio. There, Trooper Alejandro gave $200 plus Registry documents to Centeio, documents which had not been either signed or stamped by Officer LaRosa or any other Registry officer indicating that a road test had been taken. From there, all four men went to the Somerville Armory. Lieutenant Kelley observed that Centeio drove from the Safety Auto School to the Somerville Armory in a gray 1993 Pontiac Grand Am registered to the Safety Driving School. Trooper Alejandro and Aca waited outside for a short time until Centeio and Barbosa exited the Armory and provided Aca and Trooper Alejandro with their respective learner's permits, now signed by the defendant, Trooper Peter LaRosa, and stamped with the defendant's stamp, number "31", indicating that they had taken and passed a road test. Barbosa told Lieutenant Kelley that while inside the Somerville Armory, he had seen Centeio hand the defendant money in exchange for the signed and stamped learner's permits.
Lieutenant Kelley's affidavit also recited two additional sets of similar circumstances involving the defendant in which other persons received stamped learner's permits authorizing driver's licenses when those persons took no road tests. According to Lieutenant Kelley's affidavit, on January 17, 1995 the defendant signed and stamped a woman's learner's permit even though she had not taken or passed a road test after she had given Barbosa $200, which he gave to Centeio. Similarly, on February 9, 1995, Barbosa gave Centeio $200 for each of five customers whom Barbosa had brought to the Registry to obtain licenses without a road test. Centeio took the application forms.
Lieutenant Kelley's affidavit indicates that on January 25, 1995 Lieutenant Kelley went to the area of 300 Governor's Drive in Winthrop, MA., a multi-unit dwelling with the number "300" affixed to the building at the entrance. This is the address assigned to the defendant's car as observed by Barbosa outside of the Somerville armory on or about November 2, 1994; it is also the address which Lieutenant Kelley noted as the defendant's address as indicated in his State Police personnel records and his license information listed in the Registry of Motor Vehicles. At approximately 7:21 a.m., Lieutenant Kelley observed the defendant leave in a light green Mercedes Benz, MA registration 110 Z, registered to the defendant, which had been parked in the rear lot of Governor's Drive. At approximately 6:05 p.m. on the same date, Lieutenant Kelley observed the defendant return to that area in the same Mercedes Benz and park in the same area. Lieutenant Kelley had seen the defendant's vehicle parked in this location on a number of occasions during the months of January and February, 1995. Lieutenant Kelley also observed the name LaRosa on the mail box marked #13 in the foyer of 300 Governor's Drive.
RULINGS OF LAW ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
An affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues. Commonwealth v. Cinelli, 389 Mass. 197, 213 cert. denied 464 U.S. 860 (1983). Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person's residence. Id., quoting United States v. Charest, 602 F.2d 1015 (1st Cir. 1979). Instead, the basic question for a magistrate, when evaluating an affidavit supporting an application for issuance of a search warrant, is whether there is a substantial basis on which to conclude that the articles described are probably present at the place to be searched. Commonwealth v. Spano, 414 Mass. 178, 182-83 (1993), quoting Commonwealth v. Upton, 390 Mass. 562, cert. granted sub nom Massachusetts v. Upton, 466 U.S. 727 (1984), remanded Commonwealth v. Upton, 394 Mass. 363, 370 (1985). This nexus between the items to be seized and the place to be searched may be found in the "type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [the items]." Cinelli, 389 Mass. at 213, quoting United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).
In this case, the defendant's automobile is a likely location to find evidence linking the defendant to the illegal driver's licensing scheme because, first, the scheme required meetings which the magistrate could reasonable conclude would necessitate some or all of the participants driving their cars and, second, the meetings required the participants to bring and use instrumentalities of the criminal activity (such as learner's permits, driving applications, cash, or the defendant's number "31" stamp) which the magistrate could reasonably conclude the participants would place in their cars while en route either to or from any meetings. See Commonwealth v. Burt, 393 Mass. 703, 716 (1985); Cinelli, 389 Mass. at 213. Although Lieutenant Kelley never directly witnessed the defendant putting any of these items in his car, probable cause to search does not depend on direct observations, but may arise from logical conclusions drawn from the nature of the criminal activity and from rational inferences about likely hiding places. See Cinelli, 389 Mass. at 213, quoting Lucarz, 430 F.2d at 1055.
The magistrate in this case could rationally conclude that the defendant, who drove his car to and from work, would be likely to bring instrumentalities of his criminal activity with him in his car because Lieutenant Kelley observed a pattern in which parties to the driver's licensing scheme drove to meetings. See Burt, 393 Mass. at 716. On January 11, 1995, Lieutenant Kelley observed Centeio driving to the Somerville Armory to meet with the defendant while in the possession of cash and Registry documents given to him by undercover Trooper Alejandro. On January 17, 1995, Lieutenant Kelley again observed Centeio drive to the Somerville Armory for a meeting with the defendant and Barbosa in which Barbosa took $200 from a female customer and gave it to Centeio so that she could get her learner's permit signed and stamped indicating that she had passed the road test, without her actually having to take a road test.
In an analogous case to this one, our high court upheld a warrant to search the house of a suspect in a parking meter coin theft scheme, in spite of the fact that no one had witnessed him carrying packages of coins into his house, because investigators had observed three of his cohorts carrying bags of coins into their houses. Burt, 393 Mass. at 716. The Supreme Judicial Court rationally inferred that the appellant in that case had also brought his coins into his home, due to the pattern set by the others. Id. This court applies the Supreme Judicial Court's rationale to this case, concluding that Lieutenant Kelley's observation of Centeio driving to meetings with the defendant and with Barbosa leads to a rational conclusion that some or all of the participants in the driver's licensing scheme would be likely to drive to a meeting carrying instrumentalities used in the criminal scheme. Id.
The defendant's home is also a likely location to find evidence linking the defendant to the illegal driver's licensing scheme, because files and financial records of illegal activity are more likely to be retained in the home than anywhere else. See id. (concluding that bank books would logically be located in the home); see also Cinelli, 389 Mass. at 213. The affidavit recites three separate incidents, occurring January 11, 1995, January 17, 1995 and February 8, 1995 in which individuals paid $200 in exchange for a signed and stamped learner's permit indicating that the individual had passed the road test, when the individual had, in fact, not taken a road test. The magistrate could rationally conclude from the affidavit that the defendant would keep financial records pertaining to the filing of false reports in his home, given that an on-going criminal enterprise such as the one apparently operated by the defendant would probably necessitate storage of records such as bank statements in a place such as a residence. See id.
This logical connection between the item searched for and the place searched did not exist in Commonwealth v. Kaufman, 381 Mass. 301 (1980) in which the affidavit failed to contain adequate information from which a magistrate could conclude that the defendant stored drugs in his apartment. However, probable cause to justify a search warrant should depend on a common sense analysis of the facts, not a hypertechnical reading of the affidavit. Commonwealth v. Melendez, 407 Mass. 53, 60 (1990) (Greaney, J., dissenting) citing United States v. Ventresca, 380 U.S. 102, 109 (1965). This court, therefore, draws a common sense distinction between illegal contraband and financial records of illegal activity and finds that the later is more likely to exist in a residence than the former, because files and records are more likely to be retained in the home than anywhere else. See id.; see also Burt, 393 Mass. at 716.
Similarly, in Commonwealth v. Wright, 15 Mass. App. Ct. 245 (1983), the affidavit failed to establish probable cause because it merely stated the address of the defendant and the alleged criminal acts and the fact that the defendant was present at the place where the crime was committed. However, as noted, Lieutenant Kelley's affidavit indicates the presence of a wide-scale driver's licensing scheme in which the magistrate could rationally conclude that the defendant would need to store records such as bank statements in a place such as a residence. See Burt, 393 Mass. at 716; see also Cinelli, 389 Mass. at 213.
In addition, an individual who carries criminally inculpatory items in a car is likely to bring those items into the home for safe keeping. See Melendez, 407 Mass. at 60 (Greaney, J., dissenting) citing Ventresca, 380 U.S. at 109 (probable cause should be based on common sense analysis). As noted, the defendant's automobile is a likely location to find evidence linking the defendant to the illegal driver's licensing scheme. Lieutenant Kelley observed the defendant park his automobile outside of his home, therefore a common sense analysis would lead a magistrate to conclude that the defendant would bring the instrumentalities of the criminal activity into the house for safe keeping, since he would have those instrumentalities in his car at the end of the day. See id.
The affidavit supplies sufficient evidence for a magistrate to conclude, first, that Barbosa had a sufficient basis of knowledge to support the information he supplied to Lieutenant Kelley, and second, that Barbosa was credible and his information reliable based on underlying circumstances. See Upton, 394 Mass. at 374-75, quoting Aguilar v. Texas, 378 U.S. 108 (1964); see also, Spinelli v. United States, 393 U.S. 410 (1969); Commonwealth v. DiPietro, 35 Mass. App. Ct. 638 (1993). Affidavits based on information from confidential informants are required under Art. 14 of the Massachusetts Declaration of Rights to inform the magistrate of the underlying circumstances which support both the informant's basis of knowledge and his reliability or veracity. Spano, 414 Mass. at 184; see also Spinelli, 393 U.S. at 415; Aguilar v. Texas, 378 U.S. at 114. Each prong of the Aguilar-Spinelli test must be separately satisfied. Spano, 414 Mass. at 184.
First, Barbosa was not an "unknown informant," as specified in the Aguilar case, but a confidential informant involved over a period of months in Lieutenant Kelley's surveillance of the defendant. See Aguilar, 378 U.S. at 114; Upton, 394 Mass. at 375. As a result, the informant's personal observations which continued over several months, satisfy the basis of knowledge test. See Spano, 414 Mass. at 185. Unlike Commonwealth v. Allen, 406 Mass. 575, 578 (1990), in which the only information imparted to the affiant by two informants was hearsay evidence gained from third parties whose reliability was not established, in this case Barbosa's first-hand receipt of information through personal observations satisfies the basis of knowledge test. See Commonwealth v. Parapar, 404 Mass. 319, 322 (1989).
Second, the magistrate could reasonably conclude that Barbosa's statements were reliable because independent police corroboration of information supplied by the confidential informant establishes the veracity of the informant's information. See Spano, 414 Mass. at 185. For example, Lieutenant Kelley corroborated both Barbosa's observation that the light green Mercedes Benz, MA registration 110Z, belonged to the defendant and his description of the defendant. The magistrate could also conclude that Barbosa was a reliable informant based on his history as a reliable and accurate informant, given that information supplied by Barbosa in the past had led to the arrest and conviction of at least one individual for cocaine distribution and the seizure of approximately 500 grams of cocaine. See DiPietro, 35 Mass. App. Ct. at 641-42 (informant passes veracity test whose information to FBI had resulted in seizure of counterfeit bonds and the arrest of the seller of the bonds and whose information to the Drug Enforcement Administration had led to an arrest).
Therefore, this court rules that the search warrant for the defendant's person, car and residence at 300 Governor's Drive, Winthrop, MA. was supported by probable cause, and the evidence seized pursuant to that warrant is admissible at trial.
ORDER
For the reasons set forth above, the defendant's motion to suppress evidence found in the defendant's car and home is DENIED.
John C. Cratsley Justice of the Superior Court
DATED: June, 1996