Opinion
No. 12–P–798.
2013-03-11
COMMONWEALTH v. Onesimo MARTINEZ.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We reverse the order allowing the defendant's motion to suppress evidence. The affidavit in support of the search warrant application established probable cause to believe evidence of a gaming operation, including books, records, gambling receipts, documents, ledgers, monies, safety deposit box keys, and apparatuses and devices used in violation of G.L. c. 271, would be found at 3141 Washington Street, Jamaica Plain section of Boston, at the time of the search. See Commonwealth v. O'Day, 440 Mass. 296, 300 (2003). Analyzed under the familiar Aguilar–Spinelli standard, the affidavit clearly established that the observations of the confidential informant (CI) were based upon personal knowledge. See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 415 (1969). On numerous occasions from the summer of 2010 through November of that year, the CI placed bets at “Juan Taylor” and at the target location following the move of the gaming operation across the street to “Brothers Multiservices.” See Commonwealth v. O'Day, supra at 301. In particular, the CI placed bets at the target location during supervised controlled bets that took place sometime between the beginning of October, 2010 (sometime after October 1) and November 22, 2010 (the date of the affidavit).
The CI also entered the premises on the date of the affidavit and observed that the gaming operation was ongoing, just as on prior occasions at that location. The CI's veracity is established by the “controlled bets” made under police supervision .
Shortly after October 1, 2010, the betting operation moved from “Juan Taylor,” located at 3154 Washington Street, to the target location “Brothers Multiservices,” located at 3141 Washington Street, where it ran in the same manner as it had run at “Juan Taylor.”
See Commonwealth v. Luna, 410 Mass. 131, 134 (1991) (“Standing alone, [the controlled buys] provided probable cause to search the house”); Commonwealth v. Villella, 39 Mass.App.Ct. 426, 427 (1995) (“It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant”). In the course of these controlled bets, the CI provided the police with computer generated receipts containing the date, time, contest wagered upon, betting line, and dollar amount of the wagers (betting slips).
We need not resolve whether the CI's veracity was established by previous information he provided that led to arrests and seizure of betting slips and gaming paraphernalia at “Stephanie Travel.” See Commonwealth v. Perez–Baez, 410 Mass. 43, 46 (1991) (CI's veracity established by arrest and seizure of contraband); Commonwealth v. Byfield, 413 Mass. 426, 431 (1992).
The CI's activities, together with the corroboration arising from independent police observations during surveillance detailed in the affidavit, amply established probable cause to believe evidence of the gaming operation would be found at 1341 Washington Street at the time of the search.
There was no ambiguity as to the locus of the criminal activity, or where evidence of that activity would be found. See Commonwealth v. Escalera, 462 Mass. 636, 643–645 (2012); Commonwealth v. Tapia, 463 Mass. 721, 726–728 (2012). Nor was there a problem of the timeliness of the information establishing probable cause since the affidavit recites that the CI entered the premises and observed the illegal activity to be ongoing on the very day the affidavit was filed.
On multiple occasions from October 16 through November 20, 2010, the police conducting surveillance of “Brothers Multiservices” observed numerous individuals enter, remain for short periods of time, and emerge holding small slips of paper in their hands similar to the betting slips described by the CI and furnished by him during the controlled bets. See Commonwealth v. Blake, 413 Mass. 823, 827 (1992) (averments in affidavit “read as a whole, not parsed, severed, and subjected to hypercritical analysis”).
In any event, the ongoing nature of the gaming operation, which spanned several months at two different locations and involved items not readily disposed of, rendered any staleness concerns minimal. See Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975); Commonwealth v. Warren, 418 Mass. 86, 89–90 (1994).
As previously noted, the controlled bets establish the veracity of the CI.
Finally, we discern no difficulty with the affidavit's failure to identify the precise dates of the controlled bets. Justifiable concern for the safety and security of the CI provided good reason to obscure the precise dates, because given the nature of the criminal enterprise under investigation and the computerization of the betting information, disclosure of the precise dates of the bets might easily reveal the CI's identity. The affidavit sufficiently cabined the relevant dates of the controlled bets to a discrete time period (between October and November 22) to satisfy any residual concerns of timeliness.
Order allowing motion to suppress reversed.