Opinion
22-P-192
10-27-2022
COMMONWEALTH v. MARCO OVIEDO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A Superior Court jury convicted the defendant of trafficking in heroin, and nine firearms-related offenses. On appeal, the defendant challenges the denial of his motion to suppress evidence found at his residence pursuant to a search warrant. Specifically, he claims that the affidavit in support of the search warrant did not sufficiently demonstrate the veracity of the confidential informant (CI) on whose observations and statements the affidavit rested. We disagree and therefore affirm.
"Both art. 14 of the Declaration of Rights and the Fourth Amendment to the Federal Constitution require a magistrate to determine that probable cause exists before issuing a search warrant." Commonwealth v. Byfield, 413 Mass. 426, 428 (1992). Our review of the probable cause determination is de novo, based on the information in the four corners of the warrant affidavit. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). When an affidavit is based on information from a CI, we examine whether the affidavit establishes (1) the CI's "basis of knowledge," and (2) the CI's veracity, "i.e., that [the CI] was credible or [the CI's] information reliable." Commonwealth v. Santos, 94 Mass.App.Ct. 696, 699 (2019). Here the affidavit plainly established the CI's basis of knowledge -- firsthand observation of "a large quantity of drugs specifically Heroin and Cocaine" in the defendant's apartment within seventy-two hours of the CI's tip as well as the CI's previous observations of the defendant selling these types of drugs therein. See Commonwealth v. Mejia, 411 Mass. 108, 111 n.2 (1991), citing Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991) ("informant's 'basis of knowledge' is established in this case, as the informant personally observed the activities alleged to have taken place in the apartment, as well as the person participating"). For the reasons that follow, we conclude that the affidavit also sufficiently demonstrated the CI's veracity.
As an initial matter, we note that the CI was a "[c]arded [c]onfidential [i]nformant" whose identity was known to the police. See Commonwealth v. Alfonso A., 438 Mass. 372, 376 (2003) ("Although police knowledge of an informant's 'identity' . . . would not be adequate standing alone to confirm the informant's reliability, it is a factor that weighs in favor of reliability"). This was not an anonymous tipster, but rather an individual who would be "subject to a charge of filing a false report or any comparable consequence of providing false information to law enforcement." Commonwealth v. Mubdi, 456 Mass. 385, 397 (2010). Contrast id. at 396-397 (informant's veracity not established where the informant "was anonymous, and therefore there was no evidence regarding the caller's past reliability, reputation for honesty, or motivation").
Moreover, the CI's credibility was "established by showing that information provided in the past by [the CI] has proved to be accurate." Commonwealth v. Gonzalez, 90 Mass.App.Ct. 100, 104 (2016), quoting Commonwealth v. Crawford, 410 Mass. 75, 79 (1991). Here, within seventy-five days before the execution of the search warrant, the CI provided information that allowed the police to set up two controlled buys of narcotics. The CI also participated in those controlled buys, which led to the seizure of substances field-tested positive for heroin and cocaine. Commonwealth v. Mendes, 463 Mass. 353, 365 (2012) (CI's "reliability was established through previous instances where [CI's] information led to the confiscation of illegal narcotics"). These controlled buys satisfied the essential components that the Supreme Judicial Court requires. See Commonwealth v. Desper, 419 Mass. 163, 168 (1994); Commonwealth v. Ponte, 97 Mass.App.Ct. 78, 83 (2020). The defendant claims that these transactions were insufficient because the affidavit stated the "investigation [was] still ongoing" and there was no evidence of arrests or convictions resulting from either controlled buy. However, the cases establish that the seizure of drugs itself, not arrest or conviction, is the "critical" factor. See Perez-Baez, 410 Mass. at 45, 46 (whether case "still pending" immaterial where CI stated that "search of a particular specified location would disclose cocaine or some similar substance, and that statement proved to be correct"); Commonwealth v. Luce, 34 Mass.App.Ct. 105, 108 (1993) ("most common indicator of 'veracity[]' [is] a history of dispensing information to the government which led to convictions or seizure of narcotics" [emphasis added]).
Specifically, the CI contacted the police regarding two individuals whom the CI knew to be selling drugs in Boston. The CI provided the names of these individuals, as well as a description of the drugs sold and the location where they were sold.
Although the CI's information regarding the drugs the CI had observed in the defendant's apartment might have benefited from additional detail, our standard does not require such precision. See Commonwealth v. Clagon, 465 Mass. 1004, 1004-1006 (2013). Moreover, the CI provided significantly more detail than the defendant suggests. Specifically, the CI's particularized description included the following: the defendant's and codefendant's full names; the defendant's address and apartment number; details as to the quantity and type of drugs; timeframe in which drugs were observed; and additional information regarding the codefendant's car and the defendant's and codefendant's practice of renting cars to conduct drug transactions. See Commonwealth v. Atchue, 393 Mass. 343, 348 (1984) ("The informant's assertion of [firsthand] knowledge coupled with the specificity of the facts he furnished lent credence to the belief that criminal activity was evidenced from personal observation" [quotations omitted]).
Notably, the police corroborated a number of these details through database checks and police observation. See Commonwealth v. Upton, 394 Mass. 363, 376 (1985) ("independent police corroboration can make up for deficiencies" in either prong of the Aguilar-Spinelli test). For example, the police found that the defendant previously had rented a vehicle that was involved in a prior offense. See Santos, 94 Mass.App.Ct. at 700-701 (verifying tip through checking RMV and criminal records). A criminal history check of the defendant also revealed eighteen Massachusetts arraignments, including several for firearm charges. See Commonwealth v. Mendez, 476 Mass. 512, 518 n.7 (2017) ("police knowledge that a criminal history includes weapons-related charges" is factor to be considered). The CI further identified the defendant and codefendant through police photographs. See Santos, supra at 696 (noting CI identified defendant from RMV records photographs).
Ultimately, we are to view a search warrant affidavit "as a whole and in a commonsense and realistic fashion." See Ponte, 97 Mass.App.Ct. at 81. In light of the reliability demonstrated by the carded CI's role in the prior two controlled buys, the specificity of the CI's tip, and the independent police corroboration, the affidavit sufficiently established the CI's veracity. We thus conclude that the affidavit was sufficient and that the judge properly denied the motion to suppress.
Judgments affirmed.
Milkey, Walsh & Hershfang, JJ.
The panelists are listed in order of seniority.