Commonwealth v. Monteiro

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16-P-1633 Appeals Court
COMMONWEALTH vs. PAULO MONTEIRO.
No. 16-P-1633.
Bristol. January 12, 2018. - June 28, 2018.
Present: Vuono, Agnes, & McDonough, JJ.
Controlled Substances. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Probable cause,
Warrant, Affidavit. Practice, Criminal, Motion to
suppress.
Indictment found and returned in the Superior Court
Department on January 14, 2016.
A pretrial motion to suppress evidence was heard by Raffi
N. Yessayan, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.
David R. Rangaviz, Committee for Public Counsel Services,
for the defendant.
2
AGNES, J. In this interlocutory appeal by the
Commonwealth, we must decide whether the information provided by
a first-time, confidential police informant (CI) was
sufficiently corroborated by a single, imperfectly executed
controlled "buy" of cocaine for the purposes of establishing
probable cause for the issuance of a warrant to search the
defendant's apartment. We conclude that the affidavit was
sufficient to establish the CI's basis of knowledge and
veracity, and that the information provided by the CI, along
with information gathered by the police, as set forth in the
affidavit in support of the search warrant, established probable
cause. Accordingly, we reverse the order allowing the
defendant's motion to suppress.
Background. The affidavit filed as part of the warrant
application contained the following facts.
In November, 2015, Detective Gracia of the New Bedford
police department spoke with the CI, whose identity and
whereabouts were known to the police.1 The CI stated that they
had contacted the defendant, Paulo Monteiro, by telephone or had
"show[n] up [at] his residence" in New Bedford to purchase
cocaine in the past. The CI informed Detective Gracia that they
continue to purchase cocaine from the defendant. The CI
1 The affidavit does not indicate whether the CI previously
worked with the New Bedford police department. We therefore
assume that the CI was a first-time informant.
3
provided Detective Gracia with a physical description of the
seller ("a Cape Verdean male 20 years old approx 6' tall with a
medium build") and the seller's address. Detective Gracia
confirmed via the police department's computer system that a
person named Paulo Monteiro had the same listed address as that
provided by the CI. Detective Gracia also reviewed the
defendant's criminal record and determined that he was on
probation for statutory rape. A booking photograph of the
defendant was shown to the CI. The CI stated that the person in
the photograph, whom the CI identified as the defendant, was the
person who had sold cocaine to the CI in the past.
Detective Gracia later met the CI to arrange a controlled
buy of cocaine from the defendant. The CI was searched and
determined to be free of contraband and money. Detective Gracia
then gave the CI money to purchase cocaine from the defendant.
Detective Gracia and other members of the New Bedford police
department maintained surveillance of the CI. They observed the
CI walking toward the rear exterior door of the defendant's
apartment building.2 A short time later, the CI was seen leaving
the walkway leading to the rear exterior door. The defendant
2 The layout of the apartment building is unclear from the
statements in the affidavit. The affidavit indicated that the
defendant lived on the first floor of the apartment building,
but did not indicate how many other units were contained in the
building, whether other apartments were located on the first
floor, or whether the rear exterior door led directly into the
defendant's apartment.
4
was not observed entering or exiting the apartment building
through the rear exterior door. The CI was kept under
surveillance until the CI met Detective Gracia at a
predetermined location where the CI provided Detective Gracia
with a quantity of what the CI said was cocaine. The CI stated
that they purchased the cocaine from the defendant inside his
first-floor apartment. The CI was again searched and determined
to be free of money and contraband. The material the CI turned
over to the police was field tested and found to be cocaine.
Detective Gracia applied for, and a magistrate subsequently
issued, a warrant to search the defendant's apartment. Upon
execution of the search warrant, the police found narcotics and
drug paraphernalia inside the defendant's apartment. An
indictment was returned against the defendant for trafficking in
cocaine. See G. L. c. 94C, § 32E(b). The defendant moved to
suppress the contraband and related drug paraphernalia found
during the search on the basis that the affidavit provided to
the magistrate did not establish probable cause. The
defendant's motion to suppress was allowed after the motion
judge concluded that the affidavit failed to establish both the
CI's basis of knowledge and veracity. For the reasons set forth
below, we reverse.
Discussion. Article 14 of the Massachusetts Declaration of
Rights requires that a search warrant issue only upon a showing
5
of probable cause. Commonwealth v. Foster, 471 Mass. 236, 241
(2015). In determining whether the probable cause standard was
met, our inquiry "begins and ends with the 'four corners of the
affidavit'" supporting the application for the search warrant.
Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from
Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).
"Because a determination of probable cause is a conclusion of
law, we review a search warrant affidavit de novo." Foster,
supra at 242.
In Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (Upton
II), the Supreme Judicial Court determined that "art. 14
provides more substantive protection to criminal defendants than
does the Fourth Amendment" to the United States Constitution.
When an affidavit in support of a search warrant is based on
information supplied by an unknown informant, art. 14 requires
the magistrate called upon to issue a search warrant to apply
the so-called Aguilar-Spinelli test to assess whether the
affidavit is sufficient to establish probable cause to issue the
warrant. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).3
3 In particular, in Upton II, the Supreme Judicial Court
rejected the decision of the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213 (1983), and the "totality of the
circumstances" test announced there to replace the Aguilar-
Spinelli test.
6
"Where information from an unidentified informant is relied
on to supply probable cause to search, art. 14 . . .
requires that the affidavit 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. Warren, 418 Mass. 86, 88 (1994).
The defendant concedes, and we agree, that the basis of
knowledge test was satisfied by the CI's statement that they had
purchased cocaine from the defendant inside the target apartment
within seventy-two hours of the warrant issuing. See
Commonwealth v. Desper, 419 Mass. 163, 166 (1994).
We next examine whether the veracity prong has been
satisfied. The affidavit submitted to the magistrate indicated
that the CI was a first-time, confidential police informant,
which rendered the statements made by the CI contained in the
"The test we adopt has been followed successfully by the
police in this Commonwealth for approximately twenty years.
It is a test that aids lay people, such as the police and
certain magistrates, in a way that the 'totality of the
circumstances' test never could. We believe it has
encouraged and will continue to encourage more careful
police work and thus will tend to reduce the number of
unreasonable searches conducted in violation of art. 14.
We reject the argument that the higher standard will cause
police to avoid seeking search warrants. We have no sense,
and certainly we have no factual support for the
proposition, that in recent years police in this
Commonwealth have risked conducting warrantless searches
because of the unreasonable strictures of the Aguilar-
Spinelli test."
Upton II, 394 Mass. at 376.
7
affidavit, standing alone, insufficient to satisfy the veracity
prong of the Aguilar-Spinelli test. See Commonwealth v. Alfonso
A., 438 Mass. 372, 376 (2003) ("Although police knowledge of the
CI's 'identity' and 'whereabouts' would not be adequate standing
alone to confirm the informant's reliability, it is a factor
that weighs in favor of reliability"); Commonwealth v. Figueroa,
74 Mass. App. Ct. 784, 787 (2009) (information from first-time
informant "ordinarily would not meet the veracity requirements
imposed by art. 14").
However, "a properly monitored controlled purchase of
illegal drugs provides sufficient corroborating evidence to
overcome any shortfalls in meeting the constitutional
reliability requirements imposed on confidential informants."
Figueroa, supra at 787-788. See Commonwealth v. Luna, 410 Mass.
131, 134 (1991) (two controlled purchases of narcotics by
confidential informant were sufficient, standing alone, to
provide probable cause to search defendant's home); Warren, 418
Mass. at 87, 89 (tip containing detailed information about
defendant's apartment and location of drugs contained therein,
coupled with single controlled buy, sufficient to establish
informant's veracity); Villella, 39 Mass. App. Ct. at 427-428
(probable cause established where police corroborated portions
of informant's detailed tip and informant made single controlled
buy at defendant's residence through intermediary). See also
8
Commonwealth v. Cruz, 430 Mass. 838, 842 n.2 (2000), citing
Warren, supra.4 In Desper, 419 Mass. at 168, the Supreme
Judicial Court set forth the essential components of a
controlled buy:
"(1) a police officer meets the informant at a
location other than the location where is it 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."
Here, the affidavit does not indicate that the affiant observed
the CI's physical entry into, or exit from, the building housing
the defendant's apartment during the course of the controlled
buy.5 The defendant argues that this deficiency in the
controlled buy rendered the information provided by the CI
unreliable for the purposes of establishing probable cause.
Courts in other jurisdictions have deemed a single
4
controlled buy sufficient to establish probable cause. See
People v. Williams, 139 Mich. App. 104, 108 (1984), overruled in
part on other grounds, People v. Russo, 439 Mich. 584, 603-604
(1992); State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App.
2000); State v. Barrett, 132 Vt. 369, 370, 374 (1974).
As discussed in note 2, supra, the affiant failed to state
5
with specificity whether the rear exterior door mentioned in the
affidavit led directly into the defendant's apartment or into an
apartment building that housed multiple units, including the
defendant's apartment.
9
Although "the steps customary in a controlled buy should be
taken" when a controlled buy is being used to corroborate a
statement made by a confidential informant that otherwise would
not be sufficient to establish probable cause, id. at 170,
probable cause may nevertheless be established where the police
fail to comply with one of the four investigatory steps
customarily associated with a controlled buy.6 See id. at 170-
171 (probable cause requirement was met where police failed to
search confidential informant for contraband before two
controlled buys). Here, the magistrate was not compelled to
conclude that because the police did not observe the CI's
physical entry into and exit from the apartment building, the
information contained in the affidavit was insufficient to
establish probable cause. In the circumstances of this case,
the police observation of the CI walking toward the door to the
building and then a few minutes later walking away from that
area and turning over a quantity of drugs, when coupled with the
other facts, was sufficient to support the magistrate's
conclusion that the CI was credible. In cases involving a
controlled buy of drugs from a seller who is located inside a
6 The result we reach should not be understood as
encouragement to conduct controlled buys without strict
compliance with the investigatory steps set forth in Desper,
supra. Instead, we recognize that it may not be possible in
every case for the police to observe an informant's actual entry
into the building in which the seller's housing unit is located.
10
multiunit building, we do not require that the police observe
the informant enter the particular apartment where the
transaction is reported to have occurred in order to demonstrate
the reliability of the informant. See Warren, 418 Mass. at 90
("It is not fatal to the warrant application that the police did
not observe which of the three apartments the informant entered.
Based on the information provided by the informant and their own
observations, the police could infer that the defendant was
dealing drugs from his second-floor apartment").
"In dealing with probable cause . . . we deal with
probabilities. These are not technical; they are factual and
practical considerations of everyday life on which reasonable
and prudent men . . . act." Commonwealth v. Hason, 387 Mass.
169, 174 (1982), quoting from Brinegar v. United States, 338
U.S. 160, 175 (1949). To that end, "the question is whether
reasonable and prudent people would act on the basis of the
information gathered by the police, not whether the information
would satisfy legal technicians." Commonwealth v. Fontaine, 84
Mass. App. Ct. 699, 704 (2014), citing Brinegar, supra. Here,
the controlled buy was executed less than seventy-two hours
before the filing of the warrant application and affidavit. The
affidavit indicated that the CI, whose identity and whereabouts
were known to Detective Gracia, see Alfonso A., 438 Mass. at
375-376, positively identified the defendant as having sold the
11
CI cocaine from the target apartment in the past. The CI
reported that they had been buying cocaine from the defendant at
the location to be searched. The affidavit further stated that
the defendant was on probation for committing a serious felony.
The affidavit indicated that all the essential steps of a
controlled buy were met, with the exception that the CI was not
directly observed entering or exiting the building or target
apartment. While the execution of the controlled buy was
lacking in this respect, the affidavit stated that the CI was
observed walking toward the rear door of the defendant's
apartment building, returned a short time later under police
surveillance with a quantity of cocaine from the vicinity of the
rear exterior door, and informed the officers that they
purchased the cocaine from the defendant inside the apartment.
This information was sufficient to allow the magistrate to
reasonably infer that the CI entered and purchased drugs in the
defendant's apartment. See Warren, 418 Mass. at 90; Fontaine,
supra at 704, quoting from Commonwealth v. Jimenez, 438 Mass.
213, 218 (2002) ("In reviewing affidavits in support of search
warrants, we allow 'considerable latitude' for the drawing of
inferences").7
7 The Supreme Judicial Court has "held repeatedly that a
magistrate should rely on '[r]easonable inferences and common
knowledge . . . in determining probable cause.'" Commonwealth
v. Byfield, 413 Mass. 426, 429-430 (1992), quoting from
12
Finally, we are mindful that in order to encourage the
police to apply for search warrants, a reviewing court should
allow "a certain leeway or leniency in the after-the-fact review
of the sufficiency of applications for warrants." Commonwealth
v. Corradino, 368 Mass. 411, 416 (1975). See United States v.
Ventresca, 380 U.S. 102, 109 (1965); Commonwealth v. Cruz, 430
Mass. 838, 840 (2000); Commonwealth v. Monterosso, 33 Mass. App.
Ct. 765, 770 (1992).
For the above reasons, we conclude that the affidavit,
"taken as a whole and read in a commonsense fashion," Alphonso
A., 438 Mass. at 375, demonstrated that the CI provided the
police with sufficiently reliable information to support the
magistrate's probable cause determination.8
Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). The defendant
relies on Desper, 419 Mass. at 171 n.5, for his argument that no
inferences can be drawn with respect to probable cause
determinations based on controlled buys. In Desper, the court
was merely pointing out that the inclusion of the term
"controlled buy" in an affidavit, without more, does not give
rise to an inference that all of the investigatory steps of a
controlled buy were met in a particular case. Ibid. Here, the
steps taken to control the buy were explicitly set out in
Detective Gracia's affidavit.
8 This is not a case in which the controlled buy was
insufficient to establish a nexus between the defendant's drug
activity and the target apartment. In Commonwealth v. Pina, 453
Mass. 438, 439-440 (2009), the informant making the controlled
buy was instructed to meet the defendant at a prearranged
location away from the defendant's residence. The defendant
then left his residence and proceeded to complete a drug
transaction with the informant at the predetermined location.
Ibid. The Supreme Judicial Court held that the information
13
Order allowing motion to
suppress reversed.
contained in the affidavit, including the description of the
controlled buy, was insufficient to establish a nexus between
the location to be searched (the defendant's apartment) and the
defendant's drug activity. Id. at 442. Here, in contrast, the
affiant sought a warrant to search the defendant's apartment
after the CI made a controlled buy at the defendant's apartment
and where the CI had previously purchased cocaine from the
defendant's apartment.