No. 0073CR0336Commonwealth of Massachusetts Superior Court. BRISTOL, ss.
September 26, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS
TOOMEY, J.
INTRODUCTION
The defendant, Steven Medeiros (“Medeiros” or “Steve”), is charged with unlawful possession of a class B substance with intent to distribute in violation of G.L.c. 94C, § 32A(d). This matter comes before the court on the defendant Steven Medeiros’ motion to suppress all evidence seized by the police from his home on April 9, 2000. The defendant argues that the evidence seized should be suppressed on the grounds that the affidavit in support of the search warrant application did not establish probable cause to justify issuance of the warrant and does not provide sufficient justification for the “nighttime search” and “any person present” provisions.
The court heard oral argument on the motion to suppress on August 21, 2001. Upon consideration of that argument and the memoranda submitted by counsel, the defendant’s motion is DENIED.
BACKGROUND THE WARRANT
On August 9, 2000, a search warrant issued directing the police to search a two-story dwelling located at 5 Fernmarsh Lane in Westport, Massachusetts (“dwelling”). The warrant also authorized the police to conduct their search at any time of the day or evening, to make an unannounced entrance and to search “any person present . . .” The warrant sought the seizure of controlled substances as defined in G.L.c. 94C, along with drug-related paraphernalia. The warrant was based upon an affidavit, of the same date, containing information about activity at the location.
The factual allegations contained in the affidavit may be summarized as follows:
1. In the week of July 23, 2000, the affiant, a Police Sergeant of the Town of Westport Police Department, was approached by a confidential informant, “Sally”, with information relative to drug sales conducted by Cary Pacheco (“Pacheco”) at 5 Fernmarsh Lane in Westport.
2. On or about August 3, 2000, the affiant met with “Sally” to perform a “controlled buy” of cocaine from Cary Pacheco. On that date, in the affiant’s presence, “Sally” informed “Pacheco” by telephone that he/she wanted to purchase cocaine from him. “Sally” claims to have also spoken to Steven Medeiros regarding the purchase of cocaine.
3. Later that day, “Sally” paged Steve, who quickly responded by telephone. Thereafter, either the affiant or another detective observed a “controlled buy.”
4. On or about August 8, 2000, the day prior to the application, the affiant contacted “Sally” to arrange another “controlled buy” of cocaine. “Sally” then contacted Steve via pager. Within minutes, Steve returned the call and agreed to sell the narcotics. Prior to the sale, the affiant searched “Sally” and her/his vehicle. The affiant gave “Sally” currency and followed her/him to the prearranged location. Within minutes, the affiant observed Steve arrive at the location, pull aside “Sally” and exchange drugs for money. Immediately after the search, the affiant searched “Sally” and found that he/she had drugs and no money. Another officer followed Steve to 5 Fernmarsh Lane.
5. A search of all persons present was requested of the issuing magistrate on the grounds that drug activity was conducted from the dwelling and that the unlawful conduct there was likely to be occurring with full knowledge and complicity of the occupants.
THE EXECUTION
On August 9, 2000, Westport police officers, acting pursuant to the warrant, entered 5 Fernmarsh Lane in Westport, Massachusetts which resulted in the seizure from the dwelling of a quantity of controlled substances, currency and drug-related paraphernalia. From the defendant’s person, the police seized baggie corners of suspected cocaine, money, and a pager.
DISCUSSION
I. PROBABLE CAUSE FOR SEARCH OF THE DWELLING
The defendant has challenged the sufficiency of the information contained in the affidavit to permit the magistrate to make the probable cause determination necessary to support the issuance of the warrant. Probable cause is comprised of facts and circumstances within the police officer’s knowledge that would warrant a reasonable person in concluding that a crime has been committed or that specific items related to criminal activity will be found at a particular place. Commonwealth v.Spano, 414 Mass. 178, 184 (1993). Probable cause is the product of probabilities, not absolutes. The principal issue in any probable cause analysis is whether the magistrate had a “substantial basis on which to conclude that the articles or activity described [was] probably present or occurring at the place to be searched.” Commonwealth v. Upton, 394 Mass. 363, 370 (1985).
The requisite probable cause for the search of the dwelling must be contained within the four corners of the affidavit. Probable cause sufficient to support the issuance of a search warrant is “something more than mere suspicion, but something less than evidence sufficient to warrant conviction.” Commonwealth v. Baharoian, 25 Mass. App. Ct. 35, 37 (1987). The issuing magistrate and a reviewing court may rely only upon information expressly recited within the affidavit and inferences which may reasonably be drawn from the affidavit. Id. at 37. The information garnered from the affidavit must be interpreted not as though one were surgically parsing a legal document, but in an “ordinary, common-sense manner without hypertechnical analysis.” Commonwealth v.Cruz, 430 Mass. 838, 839 (2000).
Where an affiant relies on information from a confidential informant, the affidavit must set forth facts establishing both some of the underlying circumstances from which the informant concluded that the defendant was engaging in criminal activity (the basis of knowledge test), and some of the underlying circumstances from which the affiant concluded that the informant was credible or reliable (the veracity test). Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964); Commonwealth v. Upton, 394 Mass. at 374. The basis of knowledge test may be satisfied by the informant’s personal observation of the alleged criminal activity, by the offering of a highly detailed tip, or by independent corroboration of the informant’s tip.Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 485 (1994); see also Commonwealth v. Cast, 407 Mass. 891, 897 (1990); Commonwealth v.Valdez, 402 Mass. 65, 70 (1988). The veracity test may be satisfied by the details of an informant’s past provision of information leading to the arrest and conviction of other individuals, the whereabouts of an individual wanted on an outstanding warrant or the seizure of contraband. Commonwealth v. Valdez, 402 Mass. at 71. The basis of knowledge prong and the veracity prong must each be separately considered and satisfied, but independent police corroboration can rectify any deficiencies in either or both prongs.
At bar, the defendant argues that the Aguilar — Spinelli principle was violated in that the affidavit does not recite probable cause to search and seize items contained in the dwelling. This court disagrees.
While “Sally” is not shown to be reliable (i.e. no track record, no self-incrimination, etc.) or to have personal knowledge (i.e. observations, detail, etc.), any deficiency in the Aguilar — Spinelli
requirements of source of knowledge and reliability is rescued by recitation, in the affidavit, of the circumstances of the second “controlled buy” conducted on August 8, 2000.[1] That “buy,” coupled with police observation, satisfies the demands of both prongs of the probable cause test. See Commonwealth v. Warren, 418 Mass. 86, 89 (1994) (“A controlled purchase of narcotics, supervised by the police, provides probable cause to issue a search warrant”); Commonwealth v. Luna, 410 Mass. 131, 134 (1991); see also Commonwealth v. Collado, 42 Mass. App. Ct. 464, 469 (1997) (drug case where independent police corroboration satisfied Aguilar — Spinelli tests for overall reliability), rev’d on other grounds 426 Mass. 675 (1998); Commonwealth
v. Villella, 39 Mass. App. Ct. 426, 427 (1995) (“It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant.”)[2]
In sum, the information provided by “Sally”, when joined with the more detailed information and Sally’s August 8 “controlled buy” and the corroboration by independent police observations, brought the affidavit to the level necessary to satisfy the source of knowledge and reliability prongs of Aguilar — Spinelli. See Commonwealth v. Montanez, 410 Mass. 290
(1991); Commonwealth v. Parapar, 404 Mass. 319 (1989).
II. “NIGHTTIME” SEARCH
The defendant next contends that the affidavit was insufficient to provide justification for a search during the nighttime. Assuming, without deciding, that it was error for the warrant to authorize a nighttime search, the defendant’s motion must still be denied because the warrant was executed during the daytime. See Commonwealth v. Grimshaw, 413 Mass. 73, 81 (1992) (for warrant purposes, nighttime begins at 10:00 p.m. and ends at 6:00 a.m.). The search occurred at “1713 Hours,” a time which, as a matter of law, is not nighttime for purposes of the warrant. Thus, insofar as defendant’s motion to suppress rests upon the time of execution of the warrant, his motion must fail.
III. ANY PERSON PRESENT SEARCH
Defendant next argues that the warrant is invalid because there was insufficient justification for the “any person present” provision.[3]
Generally, a warrant which allows a blanket search of “any person present” must be justified by special circumstances set forth in the affidavit and justifying an unfocused invasion of privacy. The permission so to search is not readily granted because of its potential for diminution of Fourth Amendment rights. At bar, however, defendant was not an “any person present”; he was, rather, expressly targeted by the warrant, and the probable cause that justified search of the dwelling provided sufficient justification for issuance of the warrant authorizing search of his person.
CONCLUSION
The issuing magistrate was offered ample reason, within the four corners of the affidavit, to conclude that controlled substances were probably unlawfully located within the dwelling. Consequently, the items obtained pursuant to the execution of the warrant may be used as evidence. Moreover, nothing in this record suggests that the warrant’s “any person present” and nighttime search provisions illegitimized the Commonwealth’s acquisition of the contested evidence. The defendant’s motion to suppress the evidence obtained during the search of 5 Fernmarsh Lane and its occupant is, therefore, DENIED.
________________________________ Daniel F. Toomey Associate Justice
Date: September 26, 2001