The appeals court on May 12, 2010 upheld the validity of a warrant in COMMONWEALTH vs. ROBERT TREMBLE 09-P-1284 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In deciding the case the court stated “A single justice of the Supreme Judicial Court allowed the Commonwealth’s motion for interlocutory review of an order of the District Court, suppressing evidence seized pursuant to a search warrant.
Veracity. The second controlled buy furnished sufficient corroboration of the information supplied by the confidential informant to establish his veracity and reliability for purposes of the Aguilar-Spinelli test. Aguilar v. Texas, 378 U.S. 108 (1964). Spinelli v. United States, 393 U.S. 410 (1969). See Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). Before that transaction, the police searched the informant’s person and vehicle for contraband, and found none. At the instruction of the police, the informant called the defendant to request a purchase of marijuana, and the defendant instructed the informant to meet the defendant at the defendant’s house. The police followed the informant to the defendant’s house and a short time later observed the informant’s car pulling out of the defendant’s driveway. During debriefing, the informant advised the police that he had met with the defendant in the defendant’s garage and that the defendant had given him a bag of marijuana in exchange for the money earlier furnished to the informant by police. The police then ‘field tested a portion of the green vegetable matter and noted a positive result for marijuana.
The defendant argues that the affidavit containing the foregoing description is inadequate by reason of a paragraph immediately following the one describing the informant’s purchase: Tpr Scott and I followed [the informant] back to the secure location where I searched [the informant’s] person for any money or contraband and [the informant] was devoid of both. Tpr Scott searched [the informant’s] vehicle for any money or contraband and none was found.’
As the motion judge correctly recognized, the omission from that paragraph of any reference to the informant’s possession of the green vegetable matter described in a subsequent paragraph describing the same transaction (and field tested as marijuana) was an obvious clerical error; read in context, the affidavit clearly intended to describe a controlled buy in which the informant was searched for contraband before his encounter with the defendant and delivered marijuana to the police upon his return from his encounter with the defendant. The motion judge erred, however, in his expressed concern that the affidavit did not allow him to determine whether the informant had brought the marijuana out of his encounter with the defendant on his person or in his vehicle; the question is immaterial, as the salient fact is that the informant possessed no marijuana before meeting with the defendant, and delivered marijuana to police for field testing after he met with the defendant.
Basis of knowledge. The defendant’s contrary contention notwithstanding, the affidavit furnished ample basis for the informant’s knowledge. Put simply, if the informant is believed, the informant engaged personally in three purchases of drugs from the defendant. [FN2] The informant’s basis of knowledge of those transactions is established by his direct participation.
As set forth in the affidavit supporting the warrant application, the defendant conducted the second of the three controlled buys in the garage attached to his residence. In addition, the defendant returned directly to his home following the third controlled buy ‘while obviously still in possession of the money used for the purchase.’ See Commonwealth v. Turner, 71 Mass. App. Ct. 665, 669-670 (2008). Finally, the confidential informant related numerous occasions, in addition to the three controlled buys described in the affidavit, on which the defendant instructed the informant to pick him up at his residence in order to drive him to another location at which the defendant executed a sale of drugs; the informant’s description supports the inference that the defendant had the drugs on his person at the time the informant picked him up at his residence on those occasions. The defendant was unemployed and did not own a car, excluding his place of employment or a vehicle as alternative locations where he might store an inventory of drugs held for sale. Contrast Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 300-301 (2007). We conclude that the affidavit furnished an adequate nexus between the alleged crime and the place to be searched.
Conclusion. The order of the District Court allowing the defendant’s motion to suppress evidence seized pursuant to the warrant is reversed.”
rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. However, its still a good example nonetheless of using informants in a warrant affidavit.
Attorney Ronald A. Sellon