Commonwealth v. Eddy Guerrero.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-820

COMMONWEALTH

vs.

EDDY GUERRERO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions for trafficking

in fentanyl with a net weight of over ten grams, G. L. c. 94C,

§ 32E (c 1/2), and for possession of cocaine, G. L. c. 94C,

§ 34. He argues that because the Commonwealth failed to

demonstrate the reliability of a confidential informant, the

police lacked probable cause to search the defendant on

September 27, 2017, when the police discovered and seized from

the defendant nine bags of fentanyl weighing fifty grams and two

bags of cocaine weighing approximately one gram. He argues

further that there was insufficient evidence to demonstrate

beyond a reasonable doubt that the defendant had the intent to

distribute drugs rather than merely to possess them for personal

use. We affirm.
"In reviewing the denial of a motion to suppress, we accept

the judge's findings of fact absent clear error" (quotation

omitted). Commonwealth v. Guardado, 491 Mass. 666, 674, S.C.,

493 Mass. 1 (2023). The judge in this case found that Sergeant

Jonathan Lagoa testified at the hearing on the motion to

suppress that a confidential informant told Sergeant Lagoa "that

a man named 'Juan' was selling heroin and/or fentanyl throughout

New Bedford from Apartment 1 Rear at 224 Ashley Boulevard." The

confidential informant described "Juan" as dark skinned, in his

mid-thirties, with a slim build.

During the week of September 17, 2017, Sergeant Lagoa

directed the confidential informant to contact a person that the

confidential informant did not know, and that the sergeant did

not know, apparently in order to attempt to buy drugs. The

confidential informant contacted the person to whom the sergeant

had directed him, and that person directed him to 224 Ashley

Boulevard, Apartment One Rear.1

1 The defendant does not argue that there is clear error in the
judge's finding "that a man named 'Juan' was selling heroin
and/or fentanyl throughout New Bedford from Apartment 1 Rear at
224 Ashley Boulevard." Because of the paucity of information
introduced by the Commonwealth, the informant's use of this
address seems odd. The sergeant testified that an unknown
person subsequently directed the informant to that very address,
presumably to buy drugs. Unless there is more to the
story -- for example, the police having reason to suspect that
the unknown person was linked to someone selling drugs from that
address, something of which there is no evidence in the
record -- this would be a remarkable coincidence. Nonetheless,

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The sergeant searched the confidential informant, gave him

money, and sent him to the building containing that apartment,

while "maintain[ing] surveillance." The sergeant described this

as a "controlled buy."

The sergeant described the informant as "a reliable

confidential informant," but gave no other details as to the

basis for his conclusion that the informant was reliable.

(Testimony about the legal conclusion that an informant is

reliable is, obviously, an insufficient basis for a finding of

reliability.)

The sergeant then testified that on September 27, 2017, the

same confidential informant contacted him and told him that

"Juan" was currently selling heroin from 224 Ashley Boulevard,

Apartment One Rear, and that he had observed there "additional

large quantities of heroin packaged for street-level sales." He

described "Juan" as wearing a grey hooded sweatshirt with a

white hat.

The sergeant set up surveillance at that location, and

three hours later a dark skinned man exited Apartment One Rear,

when asked "prior to this date, you had received some
information regarding heroin sales from that apartment -- from
that location? . . . And, that information came from a
confidential, reliable informant?," Sergeant Lagoa answered
"That’s correct," and made clear that this was the same
informant who made the controlled buy there, i.e., the one whose
tip is at issue here. Thus the judge's finding is adequately
supported.

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wearing a grey sweatshirt and a white hat. The sergeant

directed two detectives that were assisting him in the

investigation to stop the individual, later identified as the

defendant, which they did. The defendant was cooperative with

the officers but did not speak English and the detective, with

no indication the defendant was armed and dangerous, reached for

and felt the individual's waistband, finding the fentanyl and

cocaine that are at issue here.

Discussion.

However it is characterized, the officer's warrantless

search could only have been justified if there was probable

cause to arrest the defendant, in which case it would have been

a lawful search incident to a lawful arrest. The defendant's

first argument is that the Commonwealth failed to put in

sufficient evidence to support a finding that the informant's

tip, that "Juan" was selling heroin from that apartment on

September 27th, was reliable enough to support a conclusion that

there was probable cause to arrest and/or search him at the time

the police did so.

When a search is justified by a tip from a confidential

informant, as it was in this case, under Massachusetts law the

Commonwealth must put in sufficient evidence to show both the

confidential informant's "basis of knowledge" and the

informant's "veracity." See Commonwealth v. Upton, 394 Mass.

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363, 374-375 (1985) (retaining the Aguilar-Spinelli test, see

Spinelli v. United States, 393 U.S. 410 [1969]; Aguilar v.

Texas, 378 U.S. 108 [1964], under art. 14 of the Declaration of

Rights despite its abandonment by the Supreme Court with respect

to the Fourth Amendment to the United States Constitution).

In this case, the basis of knowledge prong of this inquiry

is easily met. The confidential informant asserted that he had

seen "Juan" with heroin packaged for street-level sales and that

"Juan" was at the apartment selling heroin. Being an eyewitness

to something is self-evidently sufficient to demonstrate an

adequate basis of knowledge. Commonwealth v. Mendes, 463 Mass.

353, 365 (2012) ("firsthand knowledge through personal

observation . . . has repeatedly been held to satisfy the basis

of knowledge prong").

The issue, however, is the veracity of the informant who

provided the tip. There is no evidence that the informant had a

track record of providing information that had led to arrests or

convictions. Compare Commonwealth v. Ponte, 97 Mass. App. Ct.

78, 82 (2020) (in which there was no indication that the

informant had a prior history with the police department), with

Commonwealth v. Vynorius, 369 Mass. 17, 21 (1975) (in which

reliability was shown by "a past occasion on which the informant

had furnished police with accurate information . . . [that]

assisted a police investigation and resulted in the recovery of

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a stolen battery"). Nor is there even evidence that the police

knew where the confidential informant lived or how to find him,

such that he might be deterred from making a false allegation.

Commonwealth v. Costa, 448 Mass. 510, 516 (2007) ("according

more weight to the reliability of identified persons . . .

[because they] may be subject to charges of filing false reports

and risk retaliation"). And nothing in the evidence indicates

that prior to receiving the tip on September 27th, the police

confirmed the confidential informant's earlier tip that someone

named "Juan" was selling drugs throughout New Bedford.

The veracity of the informant thus depends on what,

exactly, was confirmed about his initial tip by the apparent

purchase of drugs described by the sergeant as a "controlled

buy." (Although no witness testified that drugs were bought at

the apartment, we think it is a reasonable inference that a

"controlled buy" mentioned by a police officer engaged in a drug

investigation refers to a purchase of drugs.)

To begin with, the motion judge did find that the informant

purchased the drugs at the controlled buy from "Juan." There

is, however, no evidence of that in the transcript of the

hearing on the motion to suppress, and that finding is not

supported by the record evidence. At no point did Sergeant

Lagoa testify that drugs were bought from "Juan," that the

confidential informant described the person who sold him the

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drugs, or that the confidential informant asserted that the

person selling drugs out of the apartment on the morning of

September 27th was a person he had seen at or purchased drugs

from at that same address ten days earlier.

Nonetheless, the purchase of drugs from the apartment

identified by the informant in his initial tip does provide

corroboration of that tip sufficiently to demonstrate the

requisite veracity. The mere corroboration of facts that could

easily be known by any number of people does not demonstrate the

veracity of that portion of the tip that contains the kind of

private information that would demonstrate an informant was a

reliable insider whose statements about a person's secretive

unlawful activity could be believed. See Commonwealth v. Va

Meng Joe, 425 Mass. 99, 103 (1997). But the fact that drugs

were being sold from a particular apartment is not a fact easily

known by members of the public, and that fact was corroborated

by the September 17 controlled buy.

The defendant argues that evidence of the controlled buy

was insufficient because there was no evidence of how the

apartment was monitored during the buy, or even whether the

defendant indeed went into the particular apartment identified.

See Ponte, 97 Mass. App. Ct. at 83 ("In detailing the

circumstances of the controlled buy, the [affiant] must provide

enough context and details for a determination that the police

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properly supervised the controlled buy and that the evidence

yielded was reliable").

There was no specific testimony of how the sergeant

performed his surveillance at the controlled buy, or of what he

saw the informant do. But he did testify that he "maintained

surveillance" throughout the controlled buy from that apartment.

This evidence certainly could have been stronger. Indeed, the

Commonwealth elicited so little evidence from the sergeant that

this case is truly a close one. But where the officer said the

controlled buy was made from the apartment and said he

maintained surveillance throughout the controlled buy, the

caselaw indicates that in such circumstances, even in the

absence of evidence of the informant entering the building or

the target apartment, such a controlled buy is adequate to

support a finding of informant credibility. See Commonwealth v.

Monteiro, 93 Mass. App. Ct. 478, 483 (2018).2 Consequently we

see no error in the judge's conclusion that there was probable

cause at the time of the search.

The defendant also argues that the evidence at trial was

insufficient to support the finding of specific intent to

2 As mentioned above, we think the description of the event as a
"controlled buy" implies that illegal drugs were purchased by
the informant, who the sergeant testified was searched prior to
the purchase. In this context, given all the facts and
circumstances, it does not matter what specific drug was
purchased.

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distribute, but the State trooper's testimony that the amount

and packaging of the fentanyl was a stronger indication of an

intent to distribute than of simple possession for personal use

was sufficient to support the conviction.

The judgments therefore are affirmed.

Judgments affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ.3),

Assistant Clerk

Entered: January 18, 2024.

3 The panelists are listed in order of seniority.

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