Commonwealth v. Santos , 94 Mass. App. Ct. 696 ( 2019 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
17-P-1627 Appeals Court
COMMONWEALTH vs. JERRY L. SANTOS.
No. 17-P-1627.
Plymouth. March 8, 2018. - January 18, 2019.
Present: Green, C.J., Meade, & Sacks, JJ.
Practice, Criminal, Warrant, Affidavit, Motion to suppress.
Search and Seizure, Warrant, Affidavit.
Indictment found and returned in the Superior Court
Department on March 9, 2016.
A pretrial motion to suppress evidence was heard by Angel
Kelley Brown, J., and the case was tried before Christopher J.
Muse, J.
Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Keith Garland, Assistant District Attorney, for the
Commonwealth.
SACKS, J. On appeal from his conviction of unlawful
possession of a firearm, the defendant argues that a judge erred
in denying his motion to suppress the firearm, found during the
execution of a search warrant. He argues that the affidavit
2
submitted in support of the warrant application failed to
establish probable cause because it rested upon information
supplied by a confidential informant but did not demonstrate
that informant's veracity. We disagree and therefore affirm.
Background. We summarize the affidavit, filed in December,
2015. The affiant, State police Trooper Steven Connolly, had
sixteen years of experience, including eight years in
investigations, and had been involved in numerous firearm-
related searches, seizures, and arrests. He and another trooper
had received, within the preceding two days, certain information
about a concealed firearm from a confidential informant, "CI#1."
They knew CI#1's "true identity" and that CI#1 had handled both
loaded and unloaded firearms in the past. CI#1 requested
anonymity out of fear for CI#1's safety.
The affidavit stated that in 2008, CI#1 had provided
another trooper and a sergeant with "accurate information
regarding the location of an illegally possessed loaded 12 gauge
shotgun that was concealed in Brockton." Those officers went to
that location and "seized the specific described loaded 12 gauge
shotgun." The shotgun and ammunition were "submitted for
analysis," but "[a]ny[] more specificity regarding the above
investigation could compromise the identity and safety of CI#1"
because "the target of the current case may[] be familiar with
3
the target in the above cited case who possessed the loaded
shotgun."
The affidavit explained the occasion for the current
(December, 2015) warrant application as follows. CI#1 had just
told Trooper Connolly and his colleague that, during the
preceding forty-eight hours, CI#1 had seen "Jerry," "a black
male with dreadlocks," place a silver revolver "in the trunk of
a 1996 red Acura Integra, bearing Massachusetts registration
1KJ926," in a parking lot behind a specified address on Main
Street in Brockton. CI#1 stated that Jerry currently lived with
family members at that address. CI#1 was shown a photograph of
the defendant maintained by the registry of motor vehicles (RMV)
and identified it as depicting Jerry. CI#1 stated that the
Acura was "not in use" and "always remain[ed] parked in the same
location."
Troopers surveilling the parking lot behind the Main Street
address saw both an Acura and the defendant there. CI#1 was
shown a surveillance photograph of the Acura parked in the lot
and confirmed that it depicted the vehicle in which Jerry had
placed the firearm. A check of RMV records revealed that the
Acura was registered to a woman whose last name (like the
defendant's) was Santos, but whom the RMV listed as living in
Taunton. The RMV records also indicated, in the words of the
4
affidavit, that the registration of the Acura was "currently
revoked for insurance."
The affidavit recited further information linking the
defendant to the Acura. Specifically, a few years earlier, a
college campus police officer had "queried Massachusetts
registration 439RG2" (which differed from the Acura's current
registration number) and found that it corresponded to an Acura
Integra registered to the defendant. That query came to the
attention of the defendant's Federal probation officer, who
asked him about it in 2013; the defendant stated that he had
purchased a 1996 Acura Integra. Also, a Brockton police report,
apparently from 2013,1 described officers as having responded to
a domestic violence incident and arrested the defendant in a
"little red car" at the Main Street address.
Trooper Connolly's affidavit expressed his opinion that the
defendant owned the Acura but had registered it under a family
member's name "to avoid law enforcement detection." Trooper
Connolly was aware that the defendant had a lengthy record of
drug and other charges, including a 2005 Federal drug conviction
for which he received a substantial committed sentence. Trooper
1 The police report was numbered 13-2288-AR. The affidavit
also referred to a Brockton police report numbered 11-5432-AR as
describing an arrest of the defendant in 2011.
5
Connolly himself had arrested the defendant in 2011 for
possession of a class B substance with intent to distribute.
Further investigation disclosed that the defendant's father
lived at the Main Street address and that a 2011 Brockton police
report described the defendant as having assaulted his female
cousin at that address. Also, neither the defendant, nor anyone
else living at the address, nor the registered owner of the
Acura (Ms. Santos), possessed a license to carry a firearm or a
firearm identification card.
The affidavit described the parking lot behind the address
as bordering on a street that was "considered a very high crime
area" -- "the scene of murders, shots fired, and narcotics
dealing." The area was difficult to surveil because individuals
frequently congregated on the street. When Trooper Connolly and
fellow officers had attempted to surveil the area as part of the
current investigation, persons on the street were "immediately
aware of" the officers' presence.
Based on this information, a search warrant for the Acura
issued. When officers went to the parking lot to execute the
warrant, they saw the defendant standing nearby; in his
possession was a car key that fit the Acura. In its trunk,
officers found a revolver, along with mail bearing the
defendant's name. A jury found the defendant guilty of
unlawfully possessing the revolver. This appeal ensued.
6
Discussion. We review the four corners of the affidavit to
determine whether it established probable cause to support the
search warrant. See Commonwealth v. O'Day, 440 Mass. 296, 297-
298 (2003). When an affidavit is based on a tip from a
confidential informant, we examine whether the affidavit met the
two-pronged Aguilar-Spinelli2 test, by establishing both the
informant's basis of knowledge and her veracity (i.e., that she
was credible or her information reliable). Commonwealth v.
Byfield, 413 Mass. 426, 428-429 (1992), citing Commonwealth v.
Upton, 394 Mass. 363, 374-375 (1985). See Commonwealth v.
Alfonso A., 438 Mass. 372, 374 (2003). The test is not to be
applied "hypertechnically," Upton, 394 Mass. at 374, and
"independent police corroboration can make up for deficiencies
in either or both prongs of the . . . test." Id. at 376.
Here, the affidavit made clear that the basis of CI#1's
knowledge was CI#1's personal observations. See, e.g., Alfonso
A., 438 Mass. at 374-375 (detailed personal observations
establish basis of knowledge). The defendant thus challenges
only whether the affidavit sufficiently established CI#1's
veracity. We conclude that it did.
2 See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v.
United States, 393 U.S. 410 (1969).
7
The defendant first argues that police knowledge of CI#1's
"true identity" was insufficient to establish that the police
could hold CI#1 accountable for providing false information, and
thus it did nothing to support CI#1's veracity. We disagree.
Knowledge of an informant's identity alone has been held to
contribute to his veracity. See Commonwealth v. Cruz, 53 Mass.
App. Ct. 24, 30 (2001), citing Commonwealth v. Bakoian, 412
Mass. 295, 301 (1992). Cf. Alfonso A., 438 Mass. at 375-376
(that police knew confidential informant's whereabouts as well
as identity, making informant reachable, weighed in favor of his
reliability). Moreover, when the affidavit here is "taken as a
whole and read in a commonsense fashion," Alfonso A., 438 Mass.
at 375, it indicates that the police were able to contact CI#1.
The affidavit suggests that CI#1's tip caused the police to
focus on the Acura, that they then surveilled the area and
obtained a photograph of the Acura in the parking lot, and that
CI#1 confirmed that the photograph depicted the vehicle in which
the defendant placed the firearm.3 We read this as indicating
that after receiving CI#1's tip, the police obtained the
3 The affidavit stated that troopers had surveilled the area
on both December 1 and December 2, 2015. The affidavit was
dated December 2 and recited that CI#1 had reported seeing Jerry
place the firearm in the Acura within the last forty-eight
hours.
8
photograph, and then were able to locate CI#1 to show it to
CI#1.
The defendant next argues that CI#1's 2008 tip regarding
the shotgun did not support CI#1's veracity because the
affidavit did not indicate that the shotgun was illegally
possessed or that its discovery led to an arrest or conviction.
Cf. Byfield, 413 Mass. at 431 (informant's veracity established
by prior tip leading to arrest and conviction for possession of
cocaine with intent to distribute). Again, we disagree. The
affidavit stated that the 2008 tip furnished "accurate
information regarding the location of an illegally possessed
loaded 12 gauge shotgun that was concealed in Brockton"
(emphasis added). Police officers went to that location and
"seized the specific described loaded 12 gauge shotgun." A
commonsense reading of the affidavit is that CI#1 provided
information about the concealed location of a shotgun and
specifically described it as a loaded 12 gauge model. The
statement that it was "illegally possessed" was made by the
police and establishes that the shotgun was contraband.4
4 As for the defendant's argument that CI#1's 2008 tip was
too far in the past to lend support to CI#1's veracity in 2015,
we rejected just such an argument in Commonwealth v. DiPietro,
35 Mass. App. Ct. 638 (1993). There we held that the age of an
informant's tips did not defeat their value as indicators of
veracity. Id. at 642. "Passage of time . . . does not usually
erode one's truth-telling propensities." Id.
9
Nor does a determination of an informant's veracity
necessarily depend on a prior tip having led to an arrest or
conviction. As past decisions have recognized, that a
confidential informant's prior tip led to the seizure of
contraband supports that informant's reliability, even absent
information that an arrest or conviction resulted. See
Commonwealth v. Mendes, 463 Mass. 353, 365 (2012) ("reliability
was established through previous instances where [the
informant's] information led to the confiscation of illegal
narcotics"); Commonwealth v. Vynorius, 369 Mass. 17, 21 (1975)
(reliability established by informant's previously having
"furnished police with accurate information [that] resulted in
the recovery of a stolen battery"); Commonwealth v. Luce, 34
Mass. App. Ct. 105, 108-110 (1993) (reliability supported by
informant's record of having supplied information to police that
led to seizure of cocaine); Commonwealth v. Kiley, 11 Mass. App.
Ct. 939, 939 (1981) ("The reliability of [an] informant could be
inferred from the recital that tips from him had led to the
recovery of contraband at an earlier time").
Finally, any deficiency in the showing of CI#1's veracity
here was counterbalanced by independent "police corroboration"
of a nonobvious detail of the current tip. Alfonso A., 438
Mass. at 377. See Bakoian, 412 Mass. at 301-302 (police
corroboration of tip's nonobvious or predictive details helped
10
show informant's reliability and thus probable cause). It may
be true, as the defendant argues, that anyone in the area could
have observed that a 1996 red Acura Integra was sitting, "not in
use," in the parking lot behind where the defendant's father
lived on Main Street. The nonobvious detail provided by CI#1,
however, was the connection between the Acura and the defendant.
Had the Acura been driven regularly by the defendant or a family
member, anyone in the area might have observed that activity and
connected the defendant to the vehicle. But it was concededly
not in use -- it "always remain[ed] parked in the same location"
-- and so the defendant's link to it was not obvious.
As Trooper Connolly's affidavit recounted, further
investigation of CI#1's tip revealed that an Acura Integra had
once been registered to the defendant (under a different
registration number); that the defendant had told his Federal
probation officer that he had purchased a 1996 Acura Integra;
that Brockton police responding to a prior domestic violence
call (apparently two years earlier) had arrested the defendant
in a "little red car" at the Main Street address; and that the
Acura in the parking lot was registered to a woman with the same
last name as the defendant, but who lived in Taunton rather than
Brockton. This information, taken together and read in a
commonsense fashion rather than hypertechnically, was sufficient
to corroborate CI#1's tip connecting the defendant to the Acura.
11
Conclusion. The affidavit sufficiently established the
veracity of CI#1, and any shortcoming in that regard was
compensated for by corroboration of a nonobvious detail supplied
by CI#1. It follows that the motion to suppress was correctly
denied. The defendant offers no other basis for overturning his
conviction.
Judgment affirmed.