All six defendants were convicted of cocaine trafficking in violation of G. L. c. 94C, § 32E (b) (1994 ed.), and possession of cocaine with intent to distribute in violation of G. L. c. 94C, § 32A (1994 ed.);
During police questioning, the juvenile and Reyes stated that they had been “dealing drugs” for David Soto, who lived at the 487 Pleasant Street address. According to the search warrant affidavit, the juvenile informed the police that Ramos, whom he identified as “Pete,” was “the big dealer.” He stated that Pete lived on the second floor, right-side apartment, at 828 Hampden Street, which was rented by Pizzaro. The juvenile stated that he had received crack cocaine at 828 Hampden Street about one and one-half weeks earlier. He stated that he had also bought crack cocaine from the same apartment on two other occasions. Furthermore, when arrested, the juvenile was in possession of 648 vials of crack cocaine, which he told police came from the 828 Hampden Street apartment.
The juvenile said that cocaine from 828 Hampden Street was packaged in plastic vials with black caps wrapped in tape. He also informed the police that Ramos and Soto had recently engaged in a gun battle involving semi-automatic weapons in Chicopee.
Both 828 Hampden Street and 487 Pleasant Street are in fact part of the same large, four-story, L-shaped building.
After arriving at the search locations, Lt. Fletcher received a radio dispatch from Officer Brian Kelly at police headquarters, asking to see Lt. Fletcher immediately. Lt. Fletcher then returned to headquarters and Officer Kelly informed him that, shortly after 10:30 a.m., an anonymous female informant, speaking in a somewhat garbled, quiet voice, called to report that the drags had been moved to the second floor, right-side apartment, at 475 Pleasant Street. This apartment was about thirty feet from 828 Hampden Street via the back porch.
While receiving this call, Officer Kelly was also juggling multiple radio channels and emergency calls. Although the caller referred to her “son,” Officer Kelly’s impression was that the informant was relaying first-hand information. The informant called again and told Officer Kelly: “Make sure you don’t get in the wrong apartment,” and confirmed twice that the address was 475 Pleasant Street, second floor, right side.
On receiving this information, Lt. Fletcher contacted a State trooper at the raid site and told him that the drags had been moved to the Pleasant Street apartment. During the telephone call to the raid site, Lt. Fletcher shouted questions at Officer Kelly to verify information. Officer Kelly answered Lt. Fletcher’s questions while trying to respond to other telephone calls. Based on these answers, Lt. Fletcher informed the State trooper that an informant had seen the drags being moved just before the search parties arrived. Lt. Fletcher then instructed the State trooper to have the Pleasant Street apartment secured pending his arrival.
Meanwhile, the search of the Hampden Street apartment had been proceeding. Only six vials of cocaine were found there. Based on the juvenile’s information, Lt. Fletcher had expected to find more cocaine. The search did reveal indicia of a large-scale drag operation, including four “beepers,” several pagers, and a ledger indicating an approximately $30,000 a week drug business. Also found during the search was a cable television bill addressed to Rebecca Martinez at 475 Pleasant Street.
While police searched the apartment, Officer Hercules Robinson overheard one male defendant remark to another in Spanish: “What do they think, I’m crazy to keep the stuff here?” Officer Robinson told the other officers about the statement, attributing it to Ramos. This information was relayed to Lt. Fletcher.
Lieutenant Fletcher thereafter ordered members of the raid team to try the keys found in the Hampden Street apartment on certain nearby automobiles, and on the lock of the 475 Pleasant Street apartment. One of the keys from Ramos’s bedroom opened the door to an automobile that the police had observed Ramos driving one week earlier. Another of the keys fit the lock to the front door of the 475 Pleasant Street apartment.
The police unlocked and opened the door of the 475 Pleasant Street apartment with one of the keys they had found. On gaining entry, the officers searched the apartment to see whether anyone was inside. Finding no one, the police locked the door again and secured the front and back entrances.
Lieutenant Fletcher returned to police headquarters and prepared a search warrant application for the 475 Pleasant Street apartment. While preparing the affidavit, Lt. Fletcher attempted to verify second-hand information. He asked Officer Robinson twice for the identity of the defendant who had stated that he did not keep the “stuff’ in 828 Hampden Street. Both times, Officer Robinson said that it was Ramos.
The affidavit related that an anonymous female informant reported “that the drugs we were looking for were in the next door apartment at 475 Pleasant street, second floor right side . . . [and] that the drugs we were looking for were moved to this apartment . . . within ten minutes of our arrival.”
The affidavit also contained the statement attributed to Ramos: “What do they think, I’m stupid to keep drugs inside this apartment.” Lt. Fletcher included the juvenile’s information in the affidavit, as well as the fact that police discovered signs of a large-scale drug operation at the Hampden Street apartment, but only found six vials of crack cocaine, which were in plastic vials with black caps. The affidavit also
A search warrant for the 475 Pleasant Street apartment was issued at approximately 1:30 p.m. by the same magistrate who issued the warrants for the other apartments. When the police searched 475 Pleasant Street, they discovered the following in a padlocked closet in a bedroom: 4,108 vials of crack cocaine; $6,557 in cash; a sawed-off shotgun; eight other firearms; a hamper full of ammunition; a 200-gram scale; handcuffs; and a large quantity of drug packaging material, including empty vials and black caps.
At trial, David Soto testified as the Commonwealth’s witness. He described a drug distribution operation in which Ramos was the leader and Soto was the second in command. According to Soto, Pizzaro was Ramos’s girl friend and sometimes made trips to New York to pick up shipments of cocaine.
The Commonwealth introduced in evidence, without objection, the personal diary of Pizzaro. The diary contained entries about her trips to New York. The Commonwealth also introduced, without objection, testimony of a police officer who had searched a safe deposit box rented by Pizzaro.
1. Probable cause for issuance of a warrant to search 828 Hampden Street. Pizzaro alone argues that there was insufficient probable cause for the issuance of a warrant to search 828 Hampden Street. In evaluating a search warrant based on information provided by an anonymous informant, we follow the two-pronged test set out in Spinelli v. United States,
Pizzaro argues that the statements by the juvenile did not satisfy the veracity prong because the statement about Ramos was not against the juvenile’s penal interest and did not satisfy the basis of knowledge prong because the information about the activities at 828 Hampden Street was stale. We agree with the motion judge that there was probable cause for the warrant to issue.
The veracity prong has been met where, as here, there is a statement against penal interest made by an identified informant. “We have relaxed the requirement of known reliability . . . for a named and identified informant.” Commonwealth v. Burt,
Pizzaro concedes that the juvenile had a reasonable fear of prosecution for his statements regarding David Soto, but argues that he had no such fear for statements regarding Ramos. We refuse to subject the affidavit to such a “hypercritical analysis.” Commonwealth v. Blake,
The information the juvenile gave to police was based on his direct observations of drug activities at 828 Hampden Street. “First-hand receipt of information through personal observation satisfies the basis of knowledge prong of Aguilar-Spinelli.” Commonwealth v. Allen,
“[Wjhere an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.” Commonwealth v. Burt, supra at 716, quoting Commonwealth v. Vynorious,
“The Fourth Amendment to the United States Constitution requires that warrants ‘particularly describ[e] the place to be searched, and the persons or things to be seized.’ Article 14 of the Massachusetts Declaration of Rights requires warrants to be ‘accompanied with a special designation of the persons or objects of search, arrest, or seizure.’ General Laws c. 276, § 2, provides that search warrants ‘shall particularly describe the property or articles to be searched for.’ ” Commonwealth v. Freiberg,
The key to 475 Pleasant Street was one of several keys on a ring that was found in plain view in the bedroom of the 828 Hampden Street apartment. There was no reason for police to have anticipated the presence of the keys, but once they were observed, the police had a reasonable basis to conclude that they were relevant to the issue of control over the premises. In addition, as information began to emerge during the execution of the search warrant that the drugs may have been moved, it was reasonable for the police to conclude that one of the keys might be to a nearby apartment and thus an “instrumentality of crime” and within the scope of the warrant. Accordingly, we conclude that the seizure of the key was proper. Commonwealth v. Cefalo, supra at 327-328.
3. Probable cause for issuance of a warrant to search 475 Pleasant Street. All six defendants argue that the search warrant for the apartment at 475 Pleasant Street was not supported by probable cause and so, they argue, the considerable evidence obtained as a result of that search should be sup
We first note that “[t]he sufficiency of an affidavit is to be decided on the basis of a consideration of all of its allegations as a whole, and not by first dissecting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone.” Commonwealth v. Burt, supra at 715, quoting Commonwealth v. Stewart, 358 Mass. 747, 751 (1971). Here, the search warrant was based on: (1) the information from the juvenile; (2) the results of the 828 Hampden Street search, including indicia of a large drug operation but few drugs; (3) the overheard statement of Ramos that he did not keep the drugs in that apartment;
Because the affidavit was based in part on the tip of an unidentified informant, we first determine whether it meets the veracity and basis of knowledge prongs of the Aguilar-Spinelli test or, if deficient, whether independent corroboration compensates for the deficiencies.
We agree with the motion judge that the anonymous tip, as reported in the affidavit, satisfied both prongs of the test. The promptness of the information, the specificity of the observations, and the particularity of the detail as to location permitted the inference that the informant saw the drugs at the precise place stated or saw them being carried into the Pleasant Street apartment. This satisfies the basis of knowledge prong. See Commonwealth v. Atchue,
Moreover, even if the tip alone was insufficient to establish probable cause, it was sufficiently corroborated by the police investigation and additional information. The cumulative information in the affidavit provided probable cause to believe that the bulk of the drugs the police were searching for had been moved and were being stored at 475 Pleasant Street. Therefore, a search warrant properly issued based on the information contained in the affidavit. See Commonwealth v. Welch,
John Barreto argues that the affidavit was invalid because it contained misstatements of fact regarding the informant’s tip which were made knowingly and intentionally or with reckless disregard for their truth. See Franks v. Delaware,
The defendants argue that inserting the key into the lock at 475 Pleasant Street constituted a warrantless search and that, since the information that the key fit the lock formed part of the basis for the warrant to search the apartment, any evidence obtained as a result of that search should be suppressed. We agree that a search occurred when the police used the key to open the lock and enter the apartment. However, the evidence found in the locked closet at 475 Pleasant Street need not be suppressed.
The Federal and State Constitutions do not prohibit all searches — only those searches that are unreasonable. Determining whether a “search in the constitutional sense” has taken place “turns on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy.” Commonwealth v. Welch, supra at 653, quoting Commonwealth v. Montanez,
For the purposes of this discussion we assume that a search occurred when the police inserted the key into the lock. See United States v. Concepcion,
We conclude, however, that using a key to conduct a warrantless search of a lock tumbler did not violate the defendants’ constitutional rights. “Although the owner of a lock has a privacy interest in a keyhole — enough to make inspection of that lock a ‘search’ — the privacy interest is so small that the officers do not need probable cause to inspect it.” United States v. Concepcion, supra. In reaching this conclusion the court in Concepcion noted that: (1) it was highly unlikely that the defendant was hiding any contraband material in the keyhole; (2) the keyhole was accessible from a common area; and (3) there were numerous other ways for the police to determine whether the defendant had access to the apartment which would not involve searches.
Other courts that have considered the question have found that inserting a key into an apartment lock did not require
Applying these principles to the case before us, we conclude that the police did not violate any constitutional rights of the defendants by inserting a key into the lock at 475 Pleasant Street and turning it to see whether it fit. Given the nature of the lock mechanism, which was accessible from a common hallway, any expectation of privacy in the contents of the lock tumbler was minimal.
We therefore conclude that, for such an unobtrusive search, the police needed only a founded or reasonable suspicion to insert the key. Such suspicion arose from the information that: A key from the key ring fit a lock of an automobile that belonged to Ramos; the two apartments were connected by a back porch; and an anonymous caller had stated that the drugs had been moved to 475 Pleasant Street. Accordingly, the warrantless insertion of the key into the lock at 475 Pleasant Street did not violate the right of the defendants to be free from unreasonable searches under the Federal and State Constitutions. Consequently, including the information that the key fit the lock in the search warrant affidavit was not unlawful.
While the subsequent walk-through search of the apartment to “check for bodies” may have intruded on the defendants’ rights, it does not justify suppression of evidence discovered after the search warrant was obtained. First, the officers clearly had a right to secure the apartment until a warrant could be obtained. “Securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents.” Commonwealth v. Blake, supra at 829. See Commonwealth v. Navarro,
4. Ineffective assistance of counsel. Pizzaro alone contends that she was denied effective assistance of trial counsel in violation of her State and Federal constitutional rights.
The contents of the diary were admissions of the defendant, which, tied in with other evidence, tended to show that the purpose of the trips to New York was to purchase cocaine. The defendant advances no plausible theory on which this evidence was not admissible.
Pizzaro’s arguments based on counsel’s failure to object to testimony concerning the safe deposit box are similarly deficient. Even if we assume that further authentication of the bank records was required, there is no showing of ineffective assistance of counsel. The prosecutor told the judge that he probably could produce the keeper of the bank records to authenticate that the box was registered to the defendant. There is no suggestion that this was not the case or that forcing the Commonwealth to bring the witness from New York would have “accomplished something material for the defense.” Commonwealth v. Satterfield,
5. Joint venture theory. Marc Ferrait argues that his cocaine trafficking conviction should be reversed because the jury returned a general verdict and thus could have found that he was guilty on either of two theories: individual liability or joint venture. Since there was insufficient evidence to convict him on the individual liability theory, Ferrait argues, his conviction is legally unsupportable.
Here it is clear that the jury based their general verdict on the joint venture theory only. Both the Commonwealth, in its closing argument, and the judge, in his charge, made clear to the jury that Ferrait and the other defendants were being prosecuted on a joint venture theory. Cf. Commonwealth v. Flynn, supra at 810.
At no point in his discussion of the elements of the crime does the judge mention individual liability. Instead, after charging the jury on joint liability, the judge explicitly linked the joint venture theory to the elements of the underlying crime he had discussed earlier in the charge: “Your analysis of the indictments against the defendants must be made separately, and one by one, and you must consider each of the elements of the crime as I have defined them for you. You must measure them against the standard of a joint enterprise as discussed with you.” There was no error.
6. Due process violation for delay of transcript. Finally, Ramos argues that a twenty-seven month delay in production of the trial transcripts violated his due process rights under the Federal and State Constitutions and therefore that the charges should be dismissed and the convictions reversed.
“[T]o implicate his due process rights, the defendant must
So ordered.
Notes
Ramos and Pizzaro were also convicted on three counts of unlawful possession of a firearm in violation of G. L. c. 269, § 10 (h) (1994 ed.).
One or more of the defendants makes the following arguments: (1) the search warrant for 828 Hampden Street in Holyoke was not supported by probable cause; (2) a key seized in the search of 828 Hampden Street
Lieutenant Fletcher did not include the information about the gun battle in the search warrant affidavit.
“The judge’s findings of fact are binding in the absence of clear error, and we view, with particular respect, the conclusions of law which are based on them.” Commonwealth v. Welch,
The trial judge allowed Ramos’s motion to suppress the statement because it was given without Miranda warnings. We therefore contemplate whether “the affidavit, considered without the tainted evidence, is sufficient to establish probable cause.” Commonwealth v. White,
The Commonwealth argues that, where an anonymous tip is just one of several bases for a warrant, the test set out in Spinelli v. United States,
Barreto also argues that Officer Kelly misrepresented the anonymous tip as made by someone with personal knowledge of the facts. On the contrary, we agree with the motion judge that, in the circumstances, Officer Kelly was not reckless in inferring that the informant had personally observed the drugs being moved.
The Commonwealth asserts that Ramos waived these issues because they were not briefed by him. By notice to this court, Ramos purported to adopt the arguments in Alvarez’s brief regarding these issues. Because we conclude that there was probable cause for the search warrant to issue, we do not reach the waiver issue.
These methods included watching the apartment from a common area, following the defendant, and asking the landlord.
Pizzaro is represented by new counsel on appeal.
Since we conclude that the case was submitted to the jury solely on the joint venture theory, we assume without deciding that there was insufficient evidence to convict Ferrait on the individual liability theory.
In his charge, the judge stated, in part: “Now with regard to the charge of trafficking in cocaine and possession of cocaine with intent to distribute, as has been mentioned to you by the lawyers, the Commonwealth is alleging that all of the defendants were engaged in a joint enterprise or joint venture in the commission of these crimes.”
Ferrait argues that, by denying his motion for a required finding of not guilty at the close of the Commonwealth’s case, the judge left open the individual liability theory. On the contrary, Ferrait’s motion does not specify any theory of liability and asks for findings on both indictments. See Commonwealth v. Fickett,
On March 3, 1992, Ramos submitted a request for the trial transcripts. About one and one-half years later, his appellate counsel began making inquiries about the status of those transcripts. After little success with these inquiries, Ramos filed a motion for suspension of sentence on October 18, 1993, based on the delay in transcript production. The motion was denied and the transcripts were produced in May, 1994.