Opinion
14-P-1982
03-01-2016
COMMONWEALTH v. KEVIN LEE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth brings this interlocutory appeal after a judge in the Boston Municipal Court allowed the defendant's motion to suppress evidence seized as the result of a search warrant, on the ground that the affidavit failed to provide sufficient information to establish an informant's basis of knowledge or veracity. The Commonwealth asserts that three police-supervised controlled purchases of drugs from the defendant at the target location were sufficient to establish probable cause for the issuance of the search warrant. We agree, and reverse.
"When an application for a [search] warrant depends in significant part on information provided by a confidential informant, the affidavit must 'apprise the magistrate of (1) some of the underlying circumstances from which the informant concluded that 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 the information reliable (the veracity test).'" Commonwealth v. Desper, 419 Mass. 163, 166 (1994), quoting from Commonwealth v. Warren, 418 Mass. 86, 88 (1994). "Each of these tests must be satisfied independently, but 'police corroboration of an informant's detailed tip can compensate for deficiencies in either or both prongs of the standard, and thus satisfy the [Massachusetts Declaration of Rights] art. 14 probable cause requirement.'" Ibid., quoting from Warren, supra at 89.
"'A controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant.' . . . Warren, [supra], citing Commonwealth v. Luna, 410 Mass. 131, 134 (1991). Generally, a 'controlled buy' has, at a minimum, these components: (1) a police officer meets the informant at a location other than the location where it is suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance." Desper, supra at 168.
In this case, Boston Police Detective Michael Ross submitted an affidavit in support of his search warrant application, reciting that he had received information from a police "confidential informant concerning drug dealing out of 11 Copeland St. in Roxbury." The informant (described as "B" in the affidavit) told Ross that he previously had purchased crack cocaine from a six foot tall, two hundred pound black male named Kevin at the Copeland Street address; "B" also provided the defendant's phone number as the number he had called to arrange the purchases.
Ross searched Boston Police records and learned that a Kevin Lee had been charged with assault and battery in an August, 2008, incident at 11 Copeland St. Police records showed that this Kevin Lee had a date of birth of August 21, 1961; a driver's license with the name Kevin Lee and the same date of birth also showed 11 Copeland Street, Roxbury, apartment 102, as his address. Ross obtained a photograph of Kevin Lee and "B" identified the individual in the photograph as the black male from whom he had bought drugs at 11 Copeland Street. Based on this information, Ross and other members of the Area B2/Drug Control Unit arranged for "B" to make three controlled purchases of cocaine from the defendant.
Regarding the first "controlled buy," the affidavit recited that, "'B' was searched and found to be free of any contraband or money. 'B' was then provided with department issued currency and instructed to call [the defendant's phone number]. 'B' spoke to the male [who] answered the phone and arranged to purchase cocaine. 'B' was told to come by 11 Copeland St. in Roxbury. 'B' was observed going directly from [the officers'] location to 11 Copeland St. and being let into the building. A few minutes later, 'B' was observed exiting 11 Copeland St. in Roxbury and followed directly back to the pre-arranged meet location. Upon 'B' returning to officers, 'B' handed [Ross] the drugs 'B' purchased." "B" told the officers that the defendant let him into the building; that he had given the defendant the currency he had received from the officers; that the defendant had entered apartment 102 and returned with the drugs. The second and third controlled purchases were conducted in precisely the same manner. The last purchase took place within seventy-two hours before the search warrant application was filed. Each time, the drugs "B" obtained were field-tested and the officers concluded that they were cocaine.
Although the officers involved in the controlled purchases saw "B" enter the multi-unit building where the defendant's apartment was located, they were not able to see directly which apartment the defendant entered, before he returned with the drugs. "In establishing probable cause, however, certainty is not required." Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 788 (2009) (reversed on other grounds, see Commonwealth v. Figueroa, 77 Mass. App. Ct. 1117 [2010].). Police officers are "entitled to infer -- and a magistrate could rely on such inference in issuing a search warrant -- that an informant who entered a [multi]-unit building had made a controlled purchase within, despite the fact that police did not actually see the informant enter the target unit." Ibid. Warren, supra at 90. That conclusion is bolstered in this case by the corroboration that Ross obtained from police and other records. See Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 236 (2006) ("[P]olice officers and other government officials involved in an investigation are presumed to be reliable and their information credible"). See also Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-5(a)(1) (2016). "While the corroborative evidence here might not, standing alone, establish ["B's"] veracity, when combined with the evidence of the controlled purchases, it is more than sufficient to meet the government's burden." Figueroa, at 789. We are persuaded that the same is true in this case.
The suppression order is vacated; a new order shall enter denying the defendant's motion. The case is remanded to the Boston Municipal Court for further proceedings consistent with this memorandum and order.
Order allowing motion to suppress reversed.
By the Court (Cypher, Hanlon & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 1, 2016.