Commonwealth v. CarrascoCommonwealth v. Carrasco
- Reporters:
- , ,
- Before:
- O'Connor
The defendants were convicted of possession with intent to distribute a class A controlled substance, heroin, and possession with intent to distribute a class B controlled substance, cocaine, in violation of G. L. c. 94C (1986 ed.). The defendant Rodriguez also was convicted of possessing a handgun without a license in violation of
The challenged search and seizure were based on a search warrant which, in turn, was based on an application supported by an affidavit submitted by State Trooper Donna Nicolosi. The affidavit, dated November 29,1983, set forth the following facts. On November 22, 1983, a confidential informant, who had never previously given information to the police, told Trooper Nicolosi that an Hispanic male and his wife resided on the second floor at 83 Franklin Street, Lynn, a greyish-blue wooden house with white trim. The informant told Nicolosi that every three to four days the man and his wife made trips into Boston in a green Chevrolet Malibu automobile with a temporary Florida registration plate to pick up bundles of heroin. The informant said that the couple sold the heroin in
According to Trooper Nicolosi’s affidavit, the informant had told her that the usual method of transferring the heroin from Franklin Street to the dealers and others was “by way of a [HJispanic male who operates a white over blue Oldsmobile, Mass, registration # 334-GSA.” The informant also told Nicolosi that the informant knew when a shipment of heroin was received “because the [H]ispanic male mentioned above appears at the residence, sometimes in the company of a white female with long brown hair” whom the informant had seen operating “a maroon Trans Am Mass, registration # 659-698.” The affidavit stated that the informant had claimed to have “observed large quantities of glassine packages being offered for sale by the [H]ispanic couple as heroin in the second floor apartment of 83 Franklin Street on numerous occasions,” and that, according to the informant, the drug sales were regular and continuing.
Trooper Nicolosi’s affidavit also stated that, based on the informant’s disclosures, she initiated an investigation of “the second floor apartment on 83 Franklin Street.” The investigation confirmed the informant’s description of the outside of 83 Franklin Street. It also revealed that a green automobile with a temporary Florida registration plate was parked in front of the building. In addition, “[t]wo [HJispanics were observed on the second floor balcony, one at each end, visually scanning the length of the street.” According to the affidavit, on November 23,1983, Trooper Greg Dem advised Nicolosi that, while conducting a surveillance of 83 Franklin Street, he had seen “the white over blue” Oldsmobile, Massachusetts registration 334-GSA, and he also saw three Hispanic persons leave 83 Franklin Street. Dem knew one of those individuals to be Eduardo Saldana, also known as “Pepito.” Saldana was the operator of the Oldsmobile. Nicolosi’s affidavit stated that, on
The warrant that was issued pursuant to Trooper Nicolosi’s application commanded an immediate search of “83 Franklin Street, 2nd floor, three and one-half story wooden structure, grayish blue, multi family with white trim (occupied by Jesus (L.N.U.)),” and of any person at that location, for “[w]hite powder substances believed to be Heroin and Cocaine, scales, notes, records of drug sales, cutting agents, money derived from the sale of controlled substances, or intended for use in the sale of controlled substances, weapons illegally kept in connection with drug sales, and any and all paraph[er]nalia used in the sale and use of controlled substances.”
On the basis of evidence presented at the suppression hearing, the judge found that the main entrance of 83 Franklin Street leads to a foyer which is between two unlocked doors and contains six mailboxes. The second floor comprises two apartments, numbers 3 and 4. The door to apartment number 3 is at the top of the stairs adjacent to the door to apartment number 4, which is at the right of the stairs.
The judge also found the following facts. At approximately 8:30 p.m. on November 29, 1983, Trooper Nicolosi went with a team of officers to the second floor at 83 Franklin Street. Trooper Nicolosi had possession of the warrant. Three officers stationed themselves at the door at the top of the stairs, and three at the door to the right, all with guns drawn. According to Trooper Nicolosi (which testimony the judge appears to have credited),
2
the officers knocked on both doors simultane
The door at the top of the stairs opened first. That apartment was occupied, but it was not occupied by the defendants. One of the occupants heard someone tell him “not to worry,” and another occupant heard the words, “It was a mistake.”
The adjacent apartment was occupied by the defendants and Eduardo Saldana. The police entered and searched that apartment and seized the items which the defendants seek to have suppressed. On appeal, the defendants challenge the denial of their suppression motions on three grounds.
The defendants’ first contention is that the search warrant was issued without a sufficient showing of probable cause, in violation of the Fourth Amendment to the United States Constitution, art. 14 of the Declaration of Rights of the Massachusetts Constitution, and
The motion judge issued her memorandum and order on September 20, 1984. This was after the Supreme Court in
Massachusetts
v.
Upton,
466 U.S. 727 (1984), rev’g
Commonwealth
v.
Upton,
390 Mass. 562 (1983), reaffirmed and clarified its holding in
Illinois
v.
Gates, supra,
that a flexible “totality-of-the-circumstances” approach to determining probable cause applies in the Fourth Amendment context. At that time, we had “had no appropriate occasion to consider what standard of probable cause is required by art. 14.”
Commonwealthy. Upton,
394 Mass. 363, 373 (1985)
(Upton II).
Subsequently, on April 1, 1985, we decided
Upton II,
in which we announced that, for purposes of art. 14 of our Declaration
Accordingly, we consider whether Trooper Nicolosi’s affidavit establishes probable cause for purposes of art. 14. In determining whether the unidentified informant’s statement can be used to support a finding of probable cause, we treat each prong of the Aguilar-Spinelli test — the basis of knowledge and the veracity of the informant — separately, as an “independently important consideration.” Upton II, supra at 375-376. Commonwealth v. Reddington, supra at 322.
The affidavit reports the informant’s statement that he or she “on numerous occasions” observed heroin for sale in the second-floor apartment of 83 Franklin Street. Such personal observations satisfy the “basis of knowledge” prong of the Aguilar-Spinelli standard. Commonwealth v. Valdez, 402 Mass. 65, 70 (1988). Commonwealth v. Borges, 395 Mass. 788, 794-795 (1985).
The affidavit also satisfies the “veracity” prong of the
Aguilar-Spinelli
test. It is true that there is no indication that this informant had ever before provided information to the police. However, the informant’s veracity is demonstrated on the face of the affidavit by independent police corroboration of detailed
We conclude that the affidavit of Trooper Nicolosi contained enough evidence of illegal activity to establish probable cause under art. 14 to search the defendants’ apartment. Therefore, the affidavit also satisfied
We turn to the defendants’ second contention, which is that the warrant fails to specify the place to be searched with sufficient particularity to satisfy the Fourth Amendment, art. 14, and
The warrant in this case authorized a search of “83 Franklin Street, 2nd floor . . . occupied by Jesus (L.N.U.).” The defendants contend that the warrant is fatally flawed because “83 Franklin Street, 2nd floor” actually includes two distinct apartments with distinct occupants. They argue that the warrant thus impermissibly left the police with discretion to search either apartment although probable cause existed to search only one of them.
In Maryland v. Garrison, supra, Baltimore police officers obtained and executed a warrant to search the person of Lawrence McWebb and “the premises known as 2036 Park Avenue third floor apartment.” The Court concluded that, when the police applied for the warrant and when they executed it, they reasonably believed that there was only one apartment on the third floor at 2036 Park Avenue. In fact, however, the third floor was divided into two apartments, one occupied by McWebb and one by Garrison. Before the officers executing the warrant became aware that they were in Garrison’s, and not McWebb’s, apartment, they had discovered the contraband that subsequently provided the basis for convicting Garrison for violating Maryland’s drug laws. The question in Maryland v. Garrison, supra, was whether the seizure of the contraband was prohibited by the Fourth Amendment.
The Supreme Court reasoned in
Maryland
v. Garrison,
supra
at 85-86, as follows: “Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent’s apartment from the scope of the requested warrant. But we must judge
It is clear that, when Trooper Nicolosi applied for the warrant, she did not know that there were two apartments on the second floor at 83 Franklin Street. The defendants do not suggest otherwise. The question is, should she have known of the two apartments at that time? We answer that question in the negative. Nicolosi’s affidavit states, and the judge found, that the information Nicolosi had received from the informant related to “the apartment” on the second floor. Nothing in the record suggests that, without going into the premises and investigating the second floor, the police should have suspected and could have discovered that there were two apartments on the second floor. See
Commonwealth
v.
Burt,
393 Mass. 703, 717-718 (1985), in which we upheld the validity of a warrant that described the place to be searched as “a 3 story single family . . . building [at a given address]” despite the fact that the building at that address was actually a two-family residence. In that case, we held that the police, who had probable cause to search only the second-floor apartment occupied by the defendant, “did not know, or have reason to know, before the search that the building was not a one-family dwelling.”
Id.
at 717. We conclude, as did the Appeals Court in
Commonwealth
v.
Demogenes,
14 Mass. App. Ct. 577, 582 (1982), that the police in this case, proceeding on an informant’s information with respect to “the” second-floor apartment, were not
There is no merit to the defendants’ third and only other contention, that the judge erred in concluding that the police complied with the “knock and announce” rule. As we have pointed out in n. 2 above, the judge found that the police had made their presence known to the defendants before the police forced their way into the defendants’ apartment. The defendants were entitled to nothing more.
Judgments affirmed.
Notes
In the Superior Court, the defendants argued, as they do on appeal, that the officers violated the “knock and announce” rule. See Commonwealth v. Cundriff, 382 Mass. 137, 140 (1980), cert. denied, 451 U.S. 973 (1981). In her memorandum of decision on the defendants’ motion to suppress, the judge observed that the only issue was whether the officers had indeed knocked and announced their presence. The judge concluded that the conduct of the occupants of the defendants’ apartment demonstrated their awareness of the officers’ presence before the officers entered the apartment.