COMMONWEALTH v. JOHN T. MASON (And a Companion Case). ( 2024 )

NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-537
23-P-540
COMMONWEALTH
vs.
JOHN T. MASON (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants have been charged with one count each of
possession of a class A substance (fentanyl) with intent to
distribute based on evidence seized at their shared residence
during the execution of a search warrant. This is the
defendants' joint interlocutory appeal from the denial of their
motions to suppress.2 On appeal, they claim that the affidavit
1 Commonwealth vs. Joseph M. Marciszka, Jr.
2A single justice of the Supreme Judicial Court allowed the
defendants' applications, pursuant to Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017), for leave to pursue an
interlocutory appeal in the Appeals Court and directed that
their appeals be paired.
supporting the search warrant failed to establish probable cause
to justify the search of their residence. We affirm.
"When reviewing the sufficiency of a warrant application,
our 'inquiry begins and ends with the "four corners of the
affidavit" that supported it.'" Commonwealth v. Hayes, 102
Mass. App. Ct. 455, 461 (2023), quoting Commonwealth v.
Escalera, 462 Mass. 636, 638 (2012). "[T]he affidavit should be
read as a whole, not parsed, severed, and subjected to
hypercritical analysis." Commonwealth v. Blake, 413 Mass. 823,
827 (1992). When determining whether the affidavit supported a
finding of probable cause, "[w]e give considerable deference to
the magistrate's determination" (citation omitted).
Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 486 (2020).
Our review is de novo, and we conduct it "in a commonsense and
realistic manner." Commonwealth v. Perkins, 478 Mass. 97, 102
(2017).
The defendants claim that based on Commonwealth v. Ponte,
97 Mass. App. Ct. 78 (2020), and Commonwealth v. Costa, 97 Mass.
App. Ct. 902 (2020), the motions to suppress should have been
allowed because in cases involving controlled buys in large
multiunit buildings, it is required that the police observe the
confidential informant (CI) entering a specific apartment or
2
provide details of the layout of the building and an explanation
why such observation was impossible or infeasible. We disagree.
In Ponte, 97 Mass. App. Ct. at 86, we held that when a
showing of probable cause is supported by a controlled buy,
police observation of a CI entering and exiting a large
multiunit building containing a large number of individual
apartments on multiple floors, without observing which apartment
the CI approached to complete the purchase, does not
sufficiently corroborate the CI's veracity. We indicated that
"more" was required to establish probable cause. Ponte, supra
at 86.
While this case is similar to Ponte in some respects, here
the affidavit in support of the search warrant contained "more"
information and corroboration to meet the low threshold of
probable cause. As an initial matter, police were able to
corroborate that the defendants lived together at 81 High
Street, apartment 12, as the CI had reported.3 The Registry of
Motor Vehicles and the Department of Criminal Justice
Information Services (CJIS) database listed both defendants'
addresses as that apartment. The investigation also revealed
3 81 High Street is a three story, multifamily apartment and
condominium complex comprised of thirty units. Apartment 12 is
on the second floor. There are four balconies visible from the
front side, two on each side of the front door.
3
that defendant John Mason owned the same car identified by the
CI, which is registered to address of the target apartment. The
CI provided a 978 phone number for Mason, which a police
database corroborated belonged to Mason. Finally, contrary to
the defendants' claim that the police only corroborated innocent
details of the CI's tip, the Amesbury Police Department had
received complaints from citizens indicating that two males
residing in apartment 12 were distributing fentanyl and heroin
from that apartment. Most importantly, an identified
individual, i.e., not anonymous, reported to the police that the
defendants, whom he knew by their names, were "dealing,"
presumably narcotics, to numerous people from apartment 12
throughout the day.
Article 14 of the Massachusetts Declaration of Rights
requires application of the two-prong Aguilar-Spinelli test4 to
ensure that an affidavit based on information obtained from an
informant establishes the informant's basis of knowledge and
veracity. See Commonwealth v. Arias, 481 Mass. 604, 618 (2019).
Relative to the CI's basis of knowledge here, as a result of the
controlled buys, the CI reported firsthand knowledge of buying
fentanyl from Mason in apartment 12 as recently as a week before
4 See Spinelli v. United States, 393 U.S. 410, 415 (1969);
Aguilar v. Texas, 378 U.S. 108, 114 (1964).
4
the search warrant issued. See Commonwealth v. Desper, 419
Mass. 163, 166 (1994). Also, the CI relayed the information
regarding these purchases to the police officer/affiant right
after making them. See Commonwealth v. Alvarez, 422 Mass. 198,
207 (1996). Therefore, as in Ponte, the remaining issue is
whether the CI met the veracity test. Ponte, 97 Mass. App. Ct.
at 81.
Relative to veracity, the CI did not have an established
history of providing information that led to arrests and
seizures of narcotics, or that which led to convictions. See
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").5 However, a supervised controlled buy
can compensate for any deficiencies in a CI's basis of knowledge
or veracity and provide the necessary linkage between suspected
5 The defendants properly note that the affiant's naked
assertion that the CI was "reliable" is insufficient to
establish his veracity. See Spinelli, 393 U.S. at 416;
Commonwealth v. Rojas, 403 Mass. 483, 486 (1988). To press the
opposite point, the Commonwealth relies on Commonwealth v.
Gonzalez, 90 Mass. App. Ct. 100, 104 (2016), to state that an
informant's veracity can be established "by showing that
information provided in the past by this informant has proved to
be accurate" (quotations and citation omitted). However, in
Gonzalez, the information the informant provided in the past led
to the seizure of narcotics and a firearm. Id. Here, the
affidavit noted nothing of the kind.
5
drug-dealing activities and the defendants. See Commonwealth v.
Valdez, 402 Mass. 65, 71 (1988).
While the motion judge distinguished Ponte's one controlled
buy with the three that occurred here, which is not without
moment, those extra buys do not, by themselves, establish
probable cause. Here, as noted above, there was considerably
"more" information, and several distinguishing factors, that set
this case apart from Ponte, which provided the necessary
corroboration to establish the CI's veracity for purposes of the
Aguilar-Spinelli test.
Here, on three occasions, the police used the CI to make
controlled buys of fentanyl from Mason at apartment 12. Each
time, in the presence of the affiant, the CI texted Mason and
arranged to buy the fentanyl, and Mason "instructed" the CI to
"come to [Mason's] residence." The phone number that the CI
would text to arrange the narcotic purchase was the same 978
number the police had corroborated belonged to Mason. After a
search of his person and car, and with money provided by police,
the CI, under police surveillance, drove to 81 High Street. The
affiant saw the CI park in the complex's parking lot and enter
the front door of the building. On each occasion, police saw
the CI leave the building after about one minute, get into his
car, and drive to a predetermined location for debriefing.
6
The CI described to the affiant after each controlled buy
that the CI would be buzzed in the front door and walk up a few
steps, where the CI would be met by Mason at the door of
apartment 12. The CI would give cash to Mason, and Mason would
give the CI an amount of "suspected fentanyl" commensurate with
the amount of cash provided. It is noteworthy that after the
first controlled buy, the affiant saw Mason smoking on Apartment
12's balcony after the CI left the parking lot.
Contrary to the defendants' claim, there are distinguishing
factors that aided in establishing the CI's veracity sufficient
to overcome the absence of direct police observation of the CI
inside the building entering or leaving apartment 12. Unlike in
Ponte or Costa, there were citizen complaints to the Amesbury
Police "regarding heroin/fentanyl distribution" at 81 High
Street. See Commonwealth v. Figueroa, 74 Mass. App. Ct. 784,
789 (2009) (citizen complaints about heavy traffic, "consistent
with drug activity," at target location shored up defects in
informant's reliability).
Furthermore, and more importantly, a person who revealed
his or her identity to the Amesbury police "reported that there
were two male residents in Apartment 12," identified as the
defendants, "who were dealing to numerous people throughout the
day," causing "constant traffic" to and from that apartment.
7
Contrary to the defendants' claim, this type of tip carries with
it a heightened indicium of reliability, corroborates the CI's
tip, and further supports the magistrate's finding of probable
cause. See Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992),
quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984)
(identification of informant to "police strengthened his or her
credibility and 'carrie[d] with it indicia of reliability of the
informant'").
Also, unlike Ponte or Costa, the police saw Mason on the
balcony immediately after the first controlled buy,
demonstrating that Mason was home at the time. Moreover, this
lends credence the CI's report that sometimes he had purchased
drugs directly from Mason on the balcony. See Commonwealth v.
Parapar, 404 Mass. 319, 323 (1989) (informant's tip corroborated
by police surveillance).
In establishing probable cause, "certainty is not
required." Figueroa, 74 Mass. App. Ct. at 788. While it would
have been better if the affidavit had set forth why the
investigation or surveillance would have been jeopardized if the
police went on the second floor to directly observe the CI go to
apartment 12, an imperfect controlled buy does not necessarily
render information obtained from an informant unreliable. See
Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 483 (2018).
8
See also Commonwealth v. Warren, 418 Mass. 86, 89-91 (1994) (not
fatal to probable cause finding that affiant did not observe
informant enter target apartment to make controlled buy).
In light of the reliability demonstrated by the CI's role
in the three prior controlled buys, the specificity of the CI's
tip, the named and unnamed citizen reports of drug distribution
taking place at apartment 12, and the independent police
corroboration of phone numbers, texts, and vehicles, 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.
Order denying motions to
suppress affirmed.
By the Court (Meade, Blake &
Brennan, JJ.6),
Clerk
Entered: August 26, 2024.
6 The panelists are listed in order of seniority.
9