Commonwealth v. Fontaine

Smith, J.

On September 10, 1986, officers of the Lancaster police department executed a search warrant at the defendant’s home. The warrant was issued on the basis of an affidavit signed by Sergeant Kevin Lamb of that department. The affidavit stated, in relevant portions, the following:

“On September 9, 1986, at approximately 5:00 p.m., I received information from Robert J. Frommer of 1368 North Main Street, Lancaster, MA, that Laurence E. Fontaine of 35 Holiday Lane, White Street Extension, was growing Marijuana in his residence.

“Frommer states that on Saturday, September 6, 1986, Thomas Morris, Otis Street, Lancaster, MA., John Ledoux, Charlotte Street, Lancaster, MA., and himself had gone to the Fontaine residence at Fon-taine’s request, as the three are members of the Lancaster Conservation Commission and Fontaine was proposing an addition to his home and due to the closeness to the water (White Pond) needed the Conservation Commission to do an on-site survey.

“While on the property, on the north side of the dwelling in the windows, Frommer observed three decorative pots which contained Marijuana. He described the plants to be green, about four feet tall with 3 to 4 inch serrated leaves. He states that two pots were in one window and one in another.

“I asked Frommer how he knew it was Marijuana. He states that he has seen it before and knows what it is.

“Frommer has been a resident of the Town of Lancaster for at least ten years and has held numerous positions in the town. He is highly respected throughout the town and I had known Frommer personally for at least the last seven years.”

As a result of their search, the police seized, among other things, three flower pots containing marihuana plants. The defendant was charged with several narcotic offenses. Prior to trial, he filed a motion to suppress the seized evidence, claiming that the warrant was not issued on probable cause. The judge denied the suppression motion, and, after a jury-waived trial, the defendant was convicted of all charges. He appeals from the denial of his suppression motion.

Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require a showing of probable cause before the issuance of a search warrant. Commonwealth v. Rojas, 403 Mass. 483, 485 (1988). Under the Massachusetts standard, the principles developed in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), are employed in probable cause inquiries. Commonwealth v. Upton, 394 Mass. 363, 374 (1985). “Under the AguilarSpinelli standard, if an affidavit is based on information from an unknown informant, the magistrate must ‘be informed of (1) some of the underlying circumstances from which the informant concluded that the 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 his information “reliable” (the veracity test). Aguilar v. Texas, supra at 114. If the informant’s tip does not satisfy each aspect of the Aguilar test, other allegations in the affidavit that corroborate the information could support a finding of probable cause. Spinelli v. United States, supra at 415.’ Commonwealth v. Upton, 390 Mass. [562,] 566 [1983].” Commonwealth v. Upton, 394 Mass. at 374-375. Here, the affiant named his source of information and also related the circumstances leading to the informant’s chance observations of the marihuana plants. As the defendant concedes, the veracity test was met by the instant affidavit. See Commonwealth v. Burt, 393 Mass. 703, 710 (1985).

The defendant claims, however, that the affidavit failed to satisfy the basis of knowledge test. He argues that, in a situation where a warrant is sought for the seizure of narcotics, the affidavit must state how the informant acquired the ability to identify the narcotics in issue. Examining the affidavit, the defendant contends that it provided no information from which the magistrate could conclude that Frommer possessed “sufficient expertise to identify growing marijuana.”

In Sullivan v. District Court of Hampshire, 384 Mass. 736, 743-744 (1981), the court refused to adopt “an inflexible rule” that a police officer must have previously seen marihuana to seize it lawfully. The opinion noted that probable cause is not tantamount to a prima facie case, let alone proof beyond a reasonable doubt. Id. at 744. Therefore, the court ruled, “[i]t is not necessary, in order to seize a substance suspected of being marihuana, that an officer have scientific proof that it is such.” Ibid. See also Commonwealth v. Shea, 18 Mass. App. Ct. 685, 689 n.7 (1984). The analysis in Sullivan controls the issue presented by the defendant here. The defendant’s argument would require the motion judge to view the affidavit and the magistrate’s decision thereon in hypertechnical fashion, inconsistent with Massachusetts decisions. Commonwealth v. Cefalo, 381 Mass. 319, 329-330 (1980). Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). See also United States v. Ventresca, 380 U.S. 102, 108 (1965).¹

Other jurisdictions have held that an affidavit supporting a search warrant is not required to show how the informant knew the item to be seized was an illegal narcotic drug. United States v. Cates, 663 F.2d 947, 948 (9th Cir. 1981) (“It is not critical that [the informant] did not state how he knew that the contraband was a controlled substance”); State v. Horwedel, 66 Or. App. 400, 404 (1984) (“It is not necessary that an affiant describe the informant’s familiarity with the specific drug at issue”); Commonwealth v. Gelfont, 264 Pa. Super. 96, 102, cert. denied, 444 U.S. 930 (1979)(“The information that a[n] . . . informant provides law enforcement authorities . . . has never been held to ... a standard of proof beyond a reasonable doubt”); Dishman v. State, 460 S.W.2d 855, 858 (Tenn. Crim. App. 1970)(“To be positive that the material delivered to the defendant was marijuana, a chemical examination would-be required. Many common plants look like it. Before he can obtain a search warrant, however, the agent is not required to have the information the search warrant would disclose”); Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1988)(a “layman is permitted to assert that a substance seen by him is marihuana without a showing in the affidavit of his qualifications to recognize it”). Contrast Molina v. State, 533 So. 2d 701, 702-705 (Ala. Crim. App. 1988), cert. denied, 489 U.S. 1086 (1989)(truck driver told officer that he had just seen two men in a car “purchase a ‘big bag of marijuana’ on the causeway”; no probable cause because he failed to provide a “particularized account of how he came upon such knowledge and . . . how he identified the substance as marijuana”); State v. Matlock, 27 Wash. App. 152, 155-156 (1980)(officer claimed he saw marihuana plants in defendant’s yard and/or house; “[ajbsent some showing that [he] had the necessary skill, training or experience to identify marijuana plants on sight, the affidavit was insufficient to establish probable cause for the issuance of a search warrant”).

We conclude that the affidavit, examined by the traditional principles governing the issuance of a search warrant, provides a sufficient showing of probable cause.

Denial of suppression motion affirmed.

Judgments affirmed.

1 In any event, we note that the named source of the information stated that upon observing the plants “he knew it was [mjarijuana [because] . . . he has seen it before and knows what it is.” Certainly, it is not necessary for him to state the time, place and occasion whereupon he had previously seen marijuana.