Commonwealth v. Forbes
85 Mass. App. Ct. 168
Mass. App. Ct.2014Background
- Police obtained a search warrant (June 21, 2010) based on an affidavit by Lt. Lonny Dakin alleging a confidential informant had purchased cocaine from Jason Forbes at 212-214 Hampden St.; Dakin corroborated the informant’s report by observing Forbes’s pickup at the address.
- Dakin delayed executing the first warrant; on June 24, 2010 officers encountered Forbes leaving the building, detained and arrested him after a struggle, then discovered Forbes actually lived on the third floor (not the second-floor unit described in the first warrant).
- Officers entered the third-floor unit without a warrant during that encounter, spoke with roommate Paul Cincone (who disclosed Forbes was growing marijuana), and a uniformed officer briefly searched Forbes’s bedroom before leaving.
- Dakin drafted a second affidavit that incorporated the informant’s original information plus the day’s events and Cincone’s statements; a new warrant for the third-floor apartment issued and the search uncovered contraband (except the firearm, which was suppressed separately).
- Forbes moved to suppress evidence and requested a Franks hearing alleging false or recklessly made statements; one judge denied the Franks request after an in camera Amral hearing, another judge denied suppression of most evidence (except the firearm). The Appeals Court affirmed both orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause / staleness & nexus to residence | Affidavit supplied ongoing drug sales details and police corroboration; sufficient probable cause | Forbes: informant info stale, uncorroborated, and mislocated apartment so no nexus to third-floor unit | Affidavit provided timely, corroborated info linking Forbes to residence; not stale; probable cause sustained |
| Use of statements from prior warrant execution | Commonwealth: second warrant lawfully relied on informant and observations, not on any illegal search | Forbes: evidence discovered during initial illegal entry tainted and bolstered the second affidavit | Evidence from the illegal entry was not necessary; probable cause stood independent of any prior unlawful entry, so second warrant valid |
| Entitlement to Franks hearing | Commonwealth: Amral hearing appropriately denied Franks because defendant didn’t make substantial preliminary showing of intentional or reckless falsehoods | Forbes: requested Franks hearing alleging false/misleading affidavit material | Judge who conducted Amral hearing found no substantial showing; Franks hearing was not required; denial affirmed |
| Suppression as deterrent for police misconduct | Commonwealth: suppression not warranted absent evidence that misconduct materially tainted probable cause | Forbes: initial warrantless entry/search merits suppression to deter police misconduct | Court: misconduct occurred (improper entry/search), but suppression of later-warrant evidence unnecessary because affidavit independently established probable cause |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes requirement for a hearing where affidavit contains intentionally false or recklessly made statements necessary to probable cause)
- Commonwealth v. Amral, 407 Mass. 511 (authorizes in camera inquiry under a less stringent preliminary showing than Franks)
- Commonwealth v. Upton, 394 Mass. 363 (Mass. law on informant-based affidavits and Aguilar-Spinelli tests)
- Aguilar v. Texas, 378 U.S. 108 (basis-of-knowledge prong for informant reliability)
- Spinelli v. United States, 393 U.S. 410 (veracity/reliability prong for informant tips)
- Commonwealth v. DeJesus, 439 Mass. 616 (evidence obtained during an illegal entry does not automatically invalidate a later warrant if that warrant is supported independently)
- Commonwealth v. Tyree, 455 Mass. 676 (affidavit must establish probable cause apart from observations made during prior illegal search)
- Commonwealth v. Butler, 423 Mass. 517 (suppression as deterrent for police misconduct may be appropriate in certain circumstances)