Commonwealth v. Perez

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12-P-1378 Appeals Court
COMMONWEALTH vs. CARLOS MANUEL PEREZ.
No. 12-P-1378.
Middlesex. December 8, 2014. - April 15, 2015.
Present: Kafker, Grainger, & Agnes, JJ.
Controlled Substances. Practice, Criminal, Required finding,
Instructions to jury, Motion to suppress, Warrant,
Affidavit, New trial. Constitutional Law, Search and
seizure. Search and Seizure, Warrant, Affidavit, Probable
cause.
Complaint received and sworn to in the Lowell Division of
the District Court Department on April 26, 2010.
A pretrial motion to suppress evidence was heard by Martine
Carroll, J.; the case was tried before Laurence D. Pierce, J.;
and motions for a new trial and for other postconviction relief
were heard by him.
Jeffrey G. Harris for the defendant.
Matthew Bailey for the Commonwealth.
GRAINGER, J. The defendant was charged with possession of
cocaine with intent to distribute. He was convicted by a jury
in the District Court of the lesser included offense of
possession of a class B substance, G. L. c. 94C, § 34. He
2
appeals, asserting insufficiency of the evidence, error in the
jury instructions, and error in the denial of his motion to
suppress evidence and his motion for a new trial or a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978). His claims
of reversible error are primarily dependent on the issuance and
execution of a so-called "no-knock" warrant that produced the
evidence resulting in his conviction. We address ancillary
claims before considering the issuance of the warrant, referring
to the undisputed facts as they are pertinent to the issues.
Sufficiency. The defendant argues that the Commonwealth
failed to demonstrate the requisite knowledge coupled with
intent to exercise control that would support a conviction for
constructive possession of the cocaine found in his bedroom. We
disagree. The jury received evidence that the defendant was the
only person in his bedroom when the police executed the search
warrant. The police found cocaine in a glassine bag in the
pocket of a man's shirt hanging in the defendant's bedroom
closet. In the defendant's bedroom the police found a bottle of
boric acid, sandwich bags, a digital scale, $422 in cash, a
Massachusetts identification card bearing the defendant's name
and picture, a Venezuelan passport bearing the defendant's name
and a picture closely resembling the defendant, and a billing
receipt addressed to the defendant at that apartment.
3
The defendant's argument that the absence of paraphernalia
for personal use renders the conviction reversible ignores the
fact that he was charged with intent to distribute. The absence
of paraphernalia supports the distribution charge, and thereby
also supports his conviction for a lesser included offense under
these circumstances.1 In any event, the absence of paraphernalia
is irrelevant to the offense of simple possession. See
Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 325-326 (2010)
(evidence that goes to intent "does not defeat a determination
of constructive possession").
Jury instructions. The defendant asserts error in the
trial judge's failure to track the model jury instruction's
language providing that "[n]either is possession proved simply
because the defendant was associated with . . . the property
where [the cocaine] was found." Instruction 3.220 of the
Criminal Model Jury Instructions for Use in the District Court
(2009). The judge's charge included the admonition that "merely
being present in the vicinity of crack cocaine, even if one
knows that it is there, does not amount to possession." He
instructed the jury that possession is to be determined "from
all the facts and any reasonable inferences that you can draw
from those facts." And he correctly defined "possession without
1
The defendant and the Commonwealth both requested that the
judge instruct the jury on the lesser included offense of simple
possession.
4
physical custody" as requiring "knowledge of the object, the
ability to exercise control over that object either directly or
through another person, and the intent to exercise control over
the object." We conclude from our review of the instructions,
considered in their entirety, that the jury were properly
instructed on the elements of constructive possession. See
Commonwealth v. Torres, 420 Mass. 479, 484-485 (1995).2 There
was no error.
Motion to suppress evidence. The defendant asserts that
the evidence used to convict him was seized pursuant to a search
warrant that failed to meet the veracity test derived from the
requirements set forth in Aguilar v. Texas, 378 U.S. 108 (1964),
and Spinelli v. United States, 393 U.S. 410 (1969). See
Commonwealth v. Upton, 394 Mass. 363, 369 (1985).3 He argues
that the veracity test was not met because the search warrant
application was submitted by an officer who did not have
firsthand knowledge of the identity and whereabouts of the
confidential informant on whose information the warrant
2
The transcript does not allow us to determine whether this
claim was preserved at trial:
"The court: Is the defendant content?
"(Remainder of sidebar discussion is completely
inaudible.)"
3
The defendant does not contest the "basis of knowledge"
test. See Commonwealth v. Forbes, 85 Mass. App. Ct. 168, 173
(2014) (quotation omitted).
5
application was based. The defendant relies on Commonwealth v.
Alfonso A., 438 Mass. 372, 376 & n.4 (2003), where the Supreme
Judicial Court determined that the motion to suppress physical
evidence was properly denied by the motion judge notwithstanding
the fact that "the affidavit did not spell out precisely how the
detective knew the informant's 'identity' and 'whereabouts.'"
The court ruled in that case that the lack of specificity on
these factors "does not detract from the unmistakable import of
the detective's sworn statement, i.e., that the detective felt
confident that he could indeed identify and locate the
informant." Ibid. In this case, the detective indicated that
the informant's particulars were known to other members of the
Lowell police department. Accordingly, as in Alfonso A., he
could clearly "identify and locate the informant" should the
need arise.
The information provided in the affidavit contained a level
of specificity that indicated the informant's veracity,
Commonwealth v. Atchue, 393 Mass. 343, 348-349 (1984), and
included facts that were confirmed by the police prior to the
application. Commonwealth v. Alfonso A., supra at 376-378.
Finally, the controlled purchases conducted by the informant
further supported his veracity. Commonwealth v. Desper, 419
Mass. 163, 168-171 (1994).
6
"No-knock" warrant. The defendant asserts that the no-
knock warrant was improperly authorized, requiring suppression
of the evidence seized after the police failed to knock and
announce their presence. The affidavit supporting the warrant
contained the following representations: 1) the extensive
training and experience in drug investigations, controlled
purchases and arrests of the officer who made the affidavit, 2)
the confidential informant's report that the apartment for which
a warrant was sought was "small, confined and private," 3) the
confidential informant's report that the defendant "keeps his
door locked and admits only people whom he knows," 4) the fact
that the defendant sold drugs to the informant only after
arrangements were made by telephone, and 5) the officer's
assessment that, given the retail nature of the defendant's
operation and the fragile nature of the illegal drugs involved,
"it would not be difficult for [the defendant] to destroy the
narcotics if given the forewarning."
The requirement that police knock and announce their
presence is based on common law principles aimed at protecting
privacy, decreasing the potential for violence and preventing
unnecessary damage. Commonwealth v. Scalise, 387 Mass. 413, 417
(1982). Our cases also recognize that competing interests will
justify abrogating the requirement in individual instances.
These are, principally, avoiding the destruction of evidence and
7
increasing officer safety. See Commonwealth v. Cundriff, 382
Mass. 137, 147 (1980), cert. denied, 451 U.S. 973 (1981);
Commonwealth v. Silva, 440 Mass. 772, 783 (2004). Further,
courts will look to the presence of lookouts and the ability of
police to approach premises undetected in determining whether a
no-knock warrant is justified. See Commonwealth v. Benlien, 27
Mass. App. Ct. 834, 836 (1989); Commonwealth v. West, 55 Mass.
App. Ct. 467, 470 (2002).
In this case, the overriding consideration presented in the
warrant application was the potential for destruction of
evidence. The fragile nature of the drugs, the limited size of
the premises, and the security precautions exercised by the
defendant all emphasize that concern. Officer safety was not
presented as an issue.
Our cases recognize that destruction of evidence is a
factor to be considered, but we require more than a general
concern that evidence can be easily destroyed to dispense with
the requirement for police to knock and announce. Scalise,
supra at 421 (declining to adopt "blanket rule" excusing
requirement of knock and announce "whenever the objects named in
the search warrant are by their nature amenable to ready
disposal or destruction"). See Commonwealth v. Ortega, 441
Mass. 170, 176 (2004).
8
While the warrant application in this case contains
statements that drugs in powder form are easy to destroy or
discard,4 it fails to provide "probable cause to believe that the
evidence will be destroyed, based on other factors uniquely
present in the particular circumstances." Scalise, supra at
421. We consider the specific references to the fact that the
"apartment was small, private and confined" and that the
defendant keeps the door locked, admitting only individuals whom
he knows, to be relevant, but ultimately insufficient. The
limited size of the premises is as likely to aid the police in
securing the evidence of criminality as to enable its disposal
"during the short delay occasioned by the knock and announce
requirement." Commonwealth v. Macias, 429 Mass. 698, 702
(1999). As described in the application, the defendant's
4
The relevant attestation in the warrant application,
states: "During my training and experience as a Police Officer,
I have learned that individuals involved in the illicit
distribution of narcotics often attempt to destroy drug evidence
if they learn that the police are about to conduct a search.
Because of the fragile nature of Illegal Drugs they are easily
destroyed by such methods as flushing them down toilets,
dissolving them in liquid and emptying containers of baggies in
which they are packaged. I have personally been involved in
arrests of drug dealers who have thrown drugs out of windows,
and swallowed the drugs upon being approached by the police.
Due to the information received that [the defendant] is a retail
or street level dealer, it would not be difficult for him to
destroy the narcotics if given the forewarning. Further, due to
the fact that Cocaine is a powder drug, it is particularly
susceptible to being quickly destroyed. For these reasons, I
respectfully request authorization to execute the search warrant
without first knocking and announcing our presence and purpose."
9
security measures are equally likely to be precautions against
robbery, and do not provide probable cause that he would bar the
door to police who announce their presence. See id. at 703
(window overlooking street, which could allow defendant to "spot
the police coming," without more, did not establish probable
cause); Commonwealth v. Santiago, 452 Mass. 573, 577-578 (2008)
("mere assertion that the owner of a residence to be searched
owns a dog, even of a breed commonly known to be aggressive,
would, standing alone, be insufficient to meet the probable
cause standard").
We therefore consider whether the evidence seized by the
police must be suppressed as a result of the failure to knock
and announce their presence in this case. "[A]s a general rule,
the mere fact that an unlawful search and seizure has occurred
should not automatically result in the exclusion of any
illegally seized evidence." Commonwealth v. Gomes, 408 Mass.
43, 46 (1990) (applying general rule "to violation of the 'no-
knock' rule"). See Commonwealth v. Sheppard, 394 Mass. 381, 391
(1985); Commonwealth v. Rutkowski, 406 Mass. 673, 676 n.5
(1990). Two factors govern the result: 1) "the degree to which
the violation undermined the . . . governing rule of law," and
2) the extent to which exclusion will serve as a deterrent in
the future. Commonwealth v. Gomes, supra. These two factors are
interdependent to the extent that (even where constitutional
10
rather than, as here, common law principles are implicated),
"[b]ad faith of the police . . . will be relevant in assessing
the severity of any constitutional violation." Commonwealth v.
O'Connor, 406 Mass. 112, 118 (1989).5,6
Applying these principles to the present circumstances, we
conclude that suppression is not warranted. The police did not
act unilaterally; they properly applied for a warrant, requested
a no-knock provision and submitted an affidavit setting forth
all the available and relevant facts known to them.7 While we
conclude as a matter of law that they did not ultimately provide
sufficient basis for the issuance of the warrant in that form,
the police did not act in bad faith, and the defendant makes no
such claim. Having obtained the warrant, they observed its
strictures. See Commonwealth v. Grimshaw, 413 Mass. 73, 79-80
(1992) (suppression unwarranted in case of nighttime search
authorization where police acted "lawfully in obtaining the
5
See Commonwealth v. Hernandez, 456 Mass. 528, 533 (2010)
(while not adopting Federal approach relying exclusively on
application of "good faith" test, Massachusetts will instead
focus "on whether the violations are substantial and
prejudicial").
6
See 1 LaFave, Search & Seizure § 1.3(a), at 69-71 &
§ 1.3(f), at 90 n.66 (5th ed. 2012); Grasso & McEvoy,
Suppression Matters Under Massachusetts Law § 9-2[i][2], at 9-14
(2013-2014 ed.).
7
See, e.g., Commonwealth v. Manni, 398 Mass. 741, 742-743
(1986) (failure to state facts supporting no-knock warrant may
lead to suppression of evidence).
11
warrant and, except as to time, had engaged in no misconduct in
executing it"). Contrast Commonwealth v. Gomes, 408 Mass. at 47(suppression warranted where officer who prepared affidavit "had
actual knowledge that [it] contained no particularized facts
which would have shown probable cause"). Under these particular
circumstances and given the detailed nature of the application,
we find not only an absence of any police misconduct but also no
indication that the pertinent rule of law was undermined.
Motion for new trial and for a "Franks" hearing. The
defendant asserts error in the judge's denial of his motion for
a new trial and, as a precursor, to conduct a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978). After the
defendant's conviction, it was revealed that one of the officers
involved in the execution of the search warrant was under
investigation for misconduct in the use of informants, and that
the Commonwealth had nol prossed other cases as a result.
In response to the defendant's subpoena, the judge required
the Commonwealth to provide an affidavit stating whether the
informant in this case was the same as any informant used by the
Commonwealth in the cases that had been nol prossed. The
Commonwealth provided an affidavit that there was no evidence of
any overlap. In denying the defendant's request for further
discovery and for a Franks hearing, the judge found that there
was "no additional information linking the investigation and
12
subsequent prosecution of the defendant" to the officer in
question. A Franks hearing is held to test the veracity of the
affiant, and the officer who provided the affidavit in this case
was not the officer implicated in the investigations raised by
the defendant in his motion. See Commonwealth v. Wadlington,
467 Mass. 192, 203 (2014). See also Commonwealth v. Amral, 407
Mass. 511, 519 n.8 (1990). Here, there was no error, and there
was no abuse of discretion in the denial of the Franks motion or
of the motion for new trial. See id. at 518; Commonwealth v.
Caban, 48 Mass. App. Ct. 179, 181 (1999).
Judgment affirmed.
Order denying motion for new
trial affirmed.