COMMONWEALTH vs. GEORGE L. UPTON.
Supreme Judicial Court of Massachusetts
December 12, 1983
390 Mass. 562
Prеsent: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O‘CONNOR, JJ.
Barnstable. January 3. September 12, 1983. — December 12, 1983.
Discussion of the standards expressed by the Supreme Court of the United States in Illinois v. Gates, 462 U.S. 213 (1983), concerning search warrants issued on the basis of disclosures by unnamed informants. [566-569]
The affidavit of a police officer who had spoken by telephone with an anonymous informant was not sufficient to establish probable cause for the issuance of a search warrant under principles expressed by the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108 (1964), and Illinois v. Gates, 462 U.S. 213 (1983), where a basis for assessing the credibility of the informant and the reliability of her information was not present, where such corroboration as was present related to innocent and nonsuspicious conduct, together with her knowledge that police had raided a third person‘s motel room, and where the source of her knowledge that stolen property was to be found in the place she identified was not revealed with sufficient strength to bolster deficiencies in other relevant aspects of the affidavit. [569-574]
LYNCH, J., dissenting, with whom NOLAN, J., joined, would uphold the sufficiency of the affidavit on the authority of Illinois v. Gates, supra [578-582].
Where the Commonwealth had not argued, at the hearings on a criminal defendant‘s motion to suppress evidence, that the search by police of a certain motor home was justified by exigent circumstances, this argument came too late for consideration on the defendant‘s appeal from the denial of his motion. [574-575]
The record of a criminal trial, resulting in convictions which were reversed by this court on another ground, did not establish a due process requirement for a judicial grant of use immunity to a potential defense witness who relied upon the privilege against self-incrimination secured to him by the Fifth Amendment to the United States Constitution. [575-577]
INDICTMENTS found and returned in the Superior Court Department, three on October 7, 1980, and two on March 10, 1981.
The Supreme Judicial Court granted a request for direct appellate review.
Nancy Gertner (Susan Sturm & Josephine Ross with her) for the defendant.
Gary A. Nickerson, Assistant District Attorney, for the Commonwealth.
Francis X. Bellotti, Attorney General, & others, amici curiae, submitted a brief.
WILKINS, J. The defendant, in his appeal from numerous convictions, principally challenges the lawfulness of a search conducted pursuant to a search warrant. He asserts that the affidavit presented in support of that search warrant failed to establish probable cause to issue it. The search produced substantial amounts of stolen property that led to the several indictments on which the defendant was convicted. We conclude that, under controlling principles announced by the Supreme Court of the United States, the search was unreasonable in violation of the Fourth Amendment to the Constitution of the United States because there was no demonstrated probable cause to issue the search warrant. We thus reverse the convictions.1
About noon on September 11, 1980, Lieutenant Beland of the Yarmouth police department assisted in the execution of a search warrant for a room at the Snug Harbor Motel in West Yarmouth. The search warrant mentioned one Kelleher. The police found various items, some containing the name of one Pendergast whose premises had been burglarized earlier that month. In the middle of the afternoon, Beland received a telephone call from an unidentified woman
The defendant filed two motions to suppress the evidence seized at the motor home. A Superior Court judge heard and denied the first motion, filed with respect to charges set forth in an initial group of indictments. When further indictments were returned involving additional charges against the defendant, he filed another motion to suppress. A second Superior Court judge heard that motion and denied it. The judges’ findings concerning the issuance of the warrant to search the motor home were substantially the same.3
At the trial before a third Superior Court judge, Kelleher testified to his participation in breaking and entering certain homes with one Jimmy Ellis. He testified that the defendant served as a lookout and that the defendant paid him
1. This case was argued before us in January, 1983, in terms of the application to this case of principles expressed in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), concerning search warrants issued on the basis of disclosures by unnamed informants. On June 8, 1983, the Supreme Court of the United States decided Illinois v. Gates, 462 U.S. 213 (1983). The opinion of the Court in the Gates case, joined in by five Justices, states that the existence of probable cause to issue a search warrant should bе determined by considering the “totality-of-the-circumstances” shown in the affidavit in support of the issuance of the warrant. Id. at 238. In so stating the standard to be applied where an affidavit relied on an informant‘s tip, the Court repudiated overly technical interpretations of the “two-pronged test” generally understood to be applicable under that Court‘s opinions in the Aguilar and Spinelli cases. The “two-pronged test” required that the magistrate 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.
In the Gates opinion, the Court noted that “veracity” and “basis of knowledge” are highly relevant in determining
We do not view the Gates opinion as decreeing a standardless “totality of the circumstances” test. The informant‘s veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensable to a finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant‘s “veracity” and any direct statement of the “basis of [his] knowledge.” We shall analyze the affidavit in support of the application for a warrant to search the defendant‘s premises in light of our view of the Gates opinion, mindful that we should not have a “grudging or negative attitude... towards warrants” (United States v. Ventresca, 380 U.S. 102, 108 [1965]), that we should pay
Prior to the Gates opinion, we might have been inclined to go directly to the veracity test and to pass by the question whether the informant‘s statements adequately show underlying circumstances from which she concluded that the evidence being sought was in the motor home. But the Gates opinion teaches us that a strong showing as to one element of an informant‘s tip may compensate for a deficiency as to the other. Illinois v. Gates, supra at 238-239. Thus we discuss the affidavit as to the informant‘s “basis of knowledge.”
The basis of the informant‘s knowledge that stolen property was in the defendant‘s motor home is not forcefully apparent in the affidavit. She said that there was stolen property in the motor hоme and described it generically. Although she said that she had seen the stolen property, she did not say that she had seen it in the motor home or where or when she had seen it. From her statement that the defendant was planning to move the motor home because Kelleher‘s motel room had been raided, one may reasonably infer that she believed the stolen property was then in the motor home. But we do not know why she believed the property was there — from hunch, from personal observation, or from information from some undisclosed third party. The “basis of knowledge” element might qualify for a passing mark from a benevolent grader, but the strength of this element is not sufficient to bolster deficiencies in the affidavit in other relevant aspects.6
We turn then to the veracity element, the question whether the information given was likеly to be accurate. None of the common bases for determining the credibility of an informant or the reliability of her information is present here.
The informant‘s tip disclosed no other basis for reasonably concluding that she was credible or her information reliable. She was an anonymous informant, and her unverifiеd assent to the suggestion that she was Lynn Alberico does not take her out of that category.7 Her concern, first expressed, that the defendant would kill her if he knew of her telephone call, casts doubt on the veracity of her admission as to who she was. A statement by a known informant who gave information placing herself in personal danger would have had far greater inherent reliability. Lieutenant Beland did not state that he recognized the voice. She declined to give her address or telephone number. Her adoption of the suggestion that she was Alberico could easily have been a convenient cover for her true identity.
Our inquiry does not cease, however, when the credibility of an informant or the reliability of her information is not shown by her past actions or by her statement itself. An in-
The affidavit did contain some corroboration of the informant‘s information. She was correct in stating that Kelleher‘s motel room had been “raided.” This information was timely. It may reasonably be inferred that certain property stolen in recent housebreaks had not been recovered in Kelleher‘s motel room. Lieutenant Beland con-
We conclude that the limited police corroboration of the informant‘s statements set forth in the affidavit and the informant‘s statements themselves did not warrant a finding of probable cause. The fact that the defendant had had a girl friend named Alberico added almost nothing to bolster the trustworthiness of the informant‘s statements. The presence of the motor home at 5 Jefferson Avenue was confirmed, but that fact related to innocent, nonsuspicious conduct. The mere confirmation, as would be true in every case, that a place to be searched in fact exists does little to credit other facts an informant discloses. Finally, the reliability of the informant‘s tip cannot be inferred solely from the fact that she knew that the police had raided a third person‘s motel room. Our cases upholding the reliability of an anonymous informant‘s tip have involved more substantial corroboration than that shown in this case. See Commonwealth v. Alessio, 377 Mass. 76, 80-82 (1979); Commonwealth v. Genest, 371 Mass. 834, 837-838 (1980); Commonwealth v. Avery, 365 Mass. 59, 62-64 (1974) (warrantless arrest); Commonwealth v. Anderson, 362 Mass. 74, 76-77 (1972). The facts corroborated in the Gates case are far
If the affidavit in the case before us were to be upheld, the Fourth Amendment would be weakened to the level of permitting the search of any person‘s premises based on a telephone tip from an anonymous informer who told a story connecting those premises with the fact of a recent police search of a third person‘s room on premises to which the public had access. Until advised to the contrary, we believe the Gates opinion should not be read as permitting such a radical result. The motions to suppress should have been allowed.9
Because we conclude that the evidence seized pursuant to the search warrant should have been suppressed by application of Fourth Amendment principles expressed by the Supreme Court of the United States, particularly and most recently in Illinois v. Gates, we need not consider whether the search violated the cognate provisions of art. 14 of the Massachusetts Declaration of Rights or, if it did, in what circumstances, if any, we would conclude that that evidence must be excluded as a matter of State law.
Clear lines defining constitutionally permissible conduct are most desirable to guide the police, magistrates, prosecutors, defense counsel, and judges. If we have correctly construed the significance of Illinois v. Gates, the Fourth Amendment standards for determining probable cause to issue a search warrant have not been made so much less clear and so relaxed as to compel us to try our hand at a definition of standards under art. 14. If we have misassessed
2. The Commonwealth argues that, if the search warrant was defective, the search was based on probable cause and could properly have been conducted without a search warrant because there were exigent circumstances justifying prompt action. Even if a warrant is invalid, a search might be justified as a warrantless search. See Commonwealth v. White, 374 Mass. 132, 140 (1977), aff‘d by an equally divided Court, 439 U.S. 280 (1978).
There is a possibility that there was probable cause to search based on additional information not set forth in the affidavit in support of the search warrant. The police officer at the site noticed the defendant and his brother removing items from the motor home and taking them to the house. He also saw thick smoke coming out of a chimney although it was not a cold day. See n.8 above for additional information bearing on probable cause not disclosed in the affidavit. Even if there was probable cause to search, the search was a general search, purportedly pursuant to the warrant, producing items not in plain view. It is questionable whether such a general search could be justified as a warrantless search. See Commonwealth v. Young, 382 Mass. 448, 460-461 (1981). Moreover, it is doubtful that there were exigent circumstances requiring immediate action. The standards as to exigency are strict, and the Commonwealth had the burden of proof. See Commonwealth v. Huffman, 385 Mass. 122, 124-125 (1982). From their testimony, the police who were on the scene while the war-
3. Although the motions to suppress the evidence sеized at the defendant‘s home should have been allowed and, therefore, that evidence will not be admissible at any retrial of the defendant, there was other evidence to support the defendant‘s conviction on at least some of the charges against him. Therefore, we consider an issue that may arise if the defendant is to be tried again.
The defendant challenged the denial of a judicial grant of use immunity to one James Ellis who, it was argued, would contradict the testimony of Richard Kelleher incriminating the defendant. Kelleher was an important Commonwealth witness. He testified that the defendant drove Ellis and him to certain houses which they broke into at the defendant‘s direction, while the defendant served as a lookout. Kelleher also testified that he had sold stolen property to the defendant. Kelleher‘s testimony tended to show that he and the defendant had been engaged during the summer and fall of 1980 in numerous housebreaks.
In the course of the trial, and after the Commonwealth had rested, the defendant moved that the judge grant use immunity to Ellis. The judge held a voir dire on that motion. He heard testimony from Ellis, who was represented by counsel. Ellis described the circumstances that led him
Defense counsel made an offer of proof concerning Ellis‘s anticipated testimony. He would have testified that he engaged in certain housebreaks with Kelleher, that Kelleher did not want him to know with whom he was dealing in disposing of the stolen property, and that the defendant did not drive them to the houses they broke into. Ellis would also have testified that he had no contact with the defendant prior to or after the housebreaks. The judge denied the motion in the exercise of his discretion.11
We recently rejected the claim of defendants that they had a constitutional right to have a prospective defense witness immunized. Commonwealth v. Curtis, 388 Mass. 637, 643-645 (1983). We recognized that the Federal courts have generally rejected such claims under the Constitution of the United States. Id. at 644-645. See United States v. Thevis, 665 F.2d 616, 639 (5th Cir.), cert. denied, 459 U.S. 825 (1982). See also United States v. Bounos, 693 F.2d 38, 39 (7th Cir. 1982) (“no such animal as judicial immunity” exists); United States v. Hunter, 672 F.2d 815, 818 (10th Cir. 1982) (courts have no power independently to fashion witness use immunity under the guise of due process). The Court of Appeals for the First Circuit has left open the question when, if ever, due process may require immunization
In passing on a request for immunity, if the prospective witness relies on his right not to incriminate himself expressed in art. 12 of the Declaration of Rights, consideration might have to be given to the requirement under the Constitution of the Commonwealth that a grant of immunity must be a grant of transactional, and not merely use, immunity. Attorney Gen. v. Colleton, 387 Mass. 790, 795-797 (1982). Emery‘s Case, 107 Mass. 172, 185 (1871). The situation is different under the Fifth Amendment to the Constitution of the United States, where a grant of immunity to a witness is constitutionally adequate if it proscribes the use in a subsequent criminal case against the witness of the compelled testimony and any evidence directly or indirectly derived from that compelled testimony. Kastigar v. United States, 406 U.S. 441, 453 (1972). This difference may be significant in weighing the government‘s legitimate interests in whether immunity should be granted.
On the record in this case, a judicial grant of use immunity to Ellis was not required under constitutional principles. We decline to speculate on what arguments on the immunity question the defendant may present if the defendant is to be retried. We would expect that any claim for immunization of Ellis would be advanced and heard sufficiently before trial so that a timely decision could be made.
4. The judgments are reversed and the verdicts set aside. The orders denying the defendant‘s motions to suppress evidence seized at his residence are also vacаted. Orders shall be entered allowing those motions to suppress. The case is remanded to the Superior Court.
So ordered.
I believe that Illinois v. Gates, supra, properly read, means more than this. At its foundation, the majority opinion in Gates derives from the observation that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232. This recognition of the difficulty of fashioning uniform legal criteria applicable to diverse factual situations in
The most important aspect of this new standard is a shift in emphasis from the reviewing court to the magistrate. If the latter has a “substantial basis” for finding the existence of probable cause to search, this is enough: “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, supra at 236. I submit that this new orientation toward the “practical, commonsense decision” of a magistrate represents a significant change from the previous emphasis placed on compliance with the rules set forth in Aguilar and Spinelli. Id. at 238. The change is for the better; the determination of probable cause, whether by a police officer or a magistrate, should be governed by “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, supra at 231, quoting Brinegar v. United States, 338 U.S. 160, 175 (1949).
In the instant case, faithful application of the “totality of the circumstances” standard announced by Gates, rather than a “two-pronged test” adjusted by a corroboration feature, would have upheld the magistrate‘s finding of probable cause to issue a warrant. An unannounced seаrch of the motel room of one Kelleher yields property stolen in recent local robberies. Three hours later, a telephone call is received. The caller, whose identity is admittedly unknown, reveals knowledge of the motel search, links the defendant to the search by saying that more stolen items (which are identified and correspond to objects taken in the robberies) which the defendant bought from Kelleher are located in the defendant‘s mobile home, and communicates the exigency of these circumstances by informing the police that the defendant knows of the motel room search and is plan-
I agree with the majority that if the affidavit had included additional facts that were known to the police, it “would have been measurably aided.” Supra at note 8. However, I believe that the “totality-of-the-circumstances” standard announced by Gates was tailor-made for circumstances such as these. Judging the affidavit solеly on its face, “there [was] a fair probability that contraband or evidence of a crime [would] be found” in the mobile home. See Illinois v. Gates, supra at 238.
I see no conflict between this interpretation of the mandate of Gates, which simply involves taking the decision at face value, and either art. 14 of the Massachusetts Declaration of Rights or
I similarly find no merit in the defendant‘s contention that
Guided by the “totality of the circumstances” analysis adopted by the United States Supreme Court‘s decision in Illinois v. Gates, 462 U.S. 213 (1983), I would hold that the magistrate had a substantial basis for concluding that probable cause existed for the search of the defendant‘s mobile home.
Notes
“On Sept. 11, 1980, at approx. 3:20 PM, this officer received a call from an unidentified female stating that there is a motor home full of stolen stuff parked behind #5 Jefferson Ave., the home of George Upton and his mother, name unknown. This unidentified female also told me that the stolen items consisted of jewelry, gold, silver, Television sets and a quantity of narcotics. She further stated that George Upton was going to move the motor home any time now because of the fact that Ricky Kelleher‘s motel room was raided and that George had purchased these stolen items from Ricky Kelleher. This unidentified female stated that she had seen the stolen items but refused to identify herself because “he‘ll kill me,” referring to George Upton. I then told this unidentified female that I knew who she was, giving her the name of Lynn Alberico, who I had met on May 16, 1980, at George Upton‘s repair shop off Summer St., in Yarmouthport. She was identified to me by George Upton as being his girlfriend, Lynn Alberico. The unidentified female admitted that she was the girl that I had named, stating that she was surprised that I knew who she was. She then told me that she‘d broken up with George Upton and wanted to burn him. She also told me that she wouldn‘t give me her address or phone number but that she would contact me in the future, if need be.
“On Sept. 11, 1980, I drove to #5 Jefferson Ave., West Yarmouth, and observed a white, Dodge Tioga Motor Home parked on the premises, immediately to the left of the dwelling, encircled by a 6’ high stockade fence. I therefore am requesting a search warrant to search the entire premises, including any vehicles parked thereon, and curtilage, as I feel I have probable cause to believe that any/all of the items listed on attached sheets marked “B“, “C“, “D“, are to be found on and within the described premises.”
In our order we invited briefs from amici curiae. We appreciate the help provided to us by eаch brief filed as amicus curiae. A brief on behalf of the Attorney General and most of the Commonwealth‘s district attorneys argues that the Gates standard of “totality of the circumstances” is consistent with the requirements of art. 14 of the Declaration of Rights of the Constitution of the Commonwealth. A second brief, filed by Mr. Stephen R. Kaplan, who had served as an assistant district attorney for the Northwestern District for ten years, argues that, if the Gates opinion has depressed the Fourth Amendment standard of probable cause, this court must use art. 14 to assure the application of proper standards.