COMMONWEALTH v. JOHN T. MASON (And a Companion Case).

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

23-P-537
23-P-540

COMMONWEALTH

vs.

JOHN T. MASON (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants have been charged with one count each of

possession of a class A substance (fentanyl) with intent to

distribute based on evidence seized at their shared residence

during the execution of a search warrant. This is the

defendants' joint interlocutory appeal from the denial of their

motions to suppress.2 On appeal, they claim that the affidavit

1 Commonwealth vs. Joseph M. Marciszka, Jr.

2A single justice of the Supreme Judicial Court allowed the
defendants' applications, pursuant to Mass. R. Crim. P. 15 (a)
(2), as amended, 476 Mass. 1501 (2017), for leave to pursue an
interlocutory appeal in the Appeals Court and directed that
their appeals be paired.
supporting the search warrant failed to establish probable cause

to justify the search of their residence. We affirm.

"When reviewing the sufficiency of a warrant application,

our 'inquiry begins and ends with the "four corners of the

affidavit" that supported it.'" Commonwealth v. Hayes, 102

Mass. App. Ct. 455, 461 (2023), quoting Commonwealth v.

Escalera, 462 Mass. 636, 638 (2012). "[T]he affidavit should be

read as a whole, not parsed, severed, and subjected to

hypercritical analysis." Commonwealth v. Blake, 413 Mass. 823,

827 (1992). When determining whether the affidavit supported a

finding of probable cause, "[w]e give considerable deference to

the magistrate's determination" (citation omitted).

Commonwealth v. Andre-Fields, 98 Mass. App. Ct. 475, 486 (2020).

Our review is de novo, and we conduct it "in a commonsense and

realistic manner." Commonwealth v. Perkins, 478 Mass. 97, 102

(2017).

The defendants claim that based on Commonwealth v. Ponte,

97 Mass. App. Ct. 78 (2020), and Commonwealth v. Costa, 97 Mass.

App. Ct. 902 (2020), the motions to suppress should have been

allowed because in cases involving controlled buys in large

multiunit buildings, it is required that the police observe the

confidential informant (CI) entering a specific apartment or

2
provide details of the layout of the building and an explanation

why such observation was impossible or infeasible. We disagree.

In Ponte, 97 Mass. App. Ct. at 86, we held that when a

showing of probable cause is supported by a controlled buy,

police observation of a CI entering and exiting a large

multiunit building containing a large number of individual

apartments on multiple floors, without observing which apartment

the CI approached to complete the purchase, does not

sufficiently corroborate the CI's veracity. We indicated that

"more" was required to establish probable cause. Ponte, supra

at 86.

While this case is similar to Ponte in some respects, here

the affidavit in support of the search warrant contained "more"

information and corroboration to meet the low threshold of

probable cause. As an initial matter, police were able to

corroborate that the defendants lived together at 81 High

Street, apartment 12, as the CI had reported.3 The Registry of

Motor Vehicles and the Department of Criminal Justice

Information Services (CJIS) database listed both defendants'

addresses as that apartment. The investigation also revealed

3 81 High Street is a three story, multifamily apartment and
condominium complex comprised of thirty units. Apartment 12 is
on the second floor. There are four balconies visible from the
front side, two on each side of the front door.

3
that defendant John Mason owned the same car identified by the

CI, which is registered to address of the target apartment. The

CI provided a 978 phone number for Mason, which a police

database corroborated belonged to Mason. Finally, contrary to

the defendants' claim that the police only corroborated innocent

details of the CI's tip, the Amesbury Police Department had

received complaints from citizens indicating that two males

residing in apartment 12 were distributing fentanyl and heroin

from that apartment. Most importantly, an identified

individual, i.e., not anonymous, reported to the police that the

defendants, whom he knew by their names, were "dealing,"

presumably narcotics, to numerous people from apartment 12

throughout the day.

Article 14 of the Massachusetts Declaration of Rights

requires application of the two-prong Aguilar-Spinelli test4 to

ensure that an affidavit based on information obtained from an

informant establishes the informant's basis of knowledge and

veracity. See Commonwealth v. Arias, 481 Mass. 604, 618 (2019).

Relative to the CI's basis of knowledge here, as a result of the

controlled buys, the CI reported firsthand knowledge of buying

fentanyl from Mason in apartment 12 as recently as a week before

4 See Spinelli v. United States, 393 U.S. 410, 415 (1969);
Aguilar v. Texas, 378 U.S. 108, 114 (1964).

4
the search warrant issued. See Commonwealth v. Desper, 419

Mass. 163, 166 (1994). Also, the CI relayed the information

regarding these purchases to the police officer/affiant right

after making them. See Commonwealth v. Alvarez, 422 Mass. 198,

207 (1996). Therefore, as in Ponte, the remaining issue is

whether the CI met the veracity test. Ponte, 97 Mass. App. Ct.

at 81.

Relative to veracity, the CI did not have an established

history of providing information that led to arrests and

seizures of narcotics, or that which led to convictions. See

Commonwealth v. Luce, 34 Mass. App. Ct. 105, 108 (1993) ("most

common indicator of 'veracity[]' [is] a history of dispensing

information to the government which led to convictions or

seizure of narcotics").5 However, a supervised controlled buy

can compensate for any deficiencies in a CI's basis of knowledge

or veracity and provide the necessary linkage between suspected

5 The defendants properly note that the affiant's naked
assertion that the CI was "reliable" is insufficient to
establish his veracity. See Spinelli, 393 U.S. at 416;
Commonwealth v. Rojas, 403 Mass. 483, 486 (1988). To press the
opposite point, the Commonwealth relies on Commonwealth v.
Gonzalez, 90 Mass. App. Ct. 100, 104 (2016), to state that an
informant's veracity can be established "by showing that
information provided in the past by this informant has proved to
be accurate" (quotations and citation omitted). However, in
Gonzalez, the information the informant provided in the past led
to the seizure of narcotics and a firearm. Id. Here, the
affidavit noted nothing of the kind.

5
drug-dealing activities and the defendants. See Commonwealth v.

Valdez, 402 Mass. 65, 71 (1988).

While the motion judge distinguished Ponte's one controlled

buy with the three that occurred here, which is not without

moment, those extra buys do not, by themselves, establish

probable cause. Here, as noted above, there was considerably

"more" information, and several distinguishing factors, that set

this case apart from Ponte, which provided the necessary

corroboration to establish the CI's veracity for purposes of the

Aguilar-Spinelli test.

Here, on three occasions, the police used the CI to make

controlled buys of fentanyl from Mason at apartment 12. Each

time, in the presence of the affiant, the CI texted Mason and

arranged to buy the fentanyl, and Mason "instructed" the CI to

"come to [Mason's] residence." The phone number that the CI

would text to arrange the narcotic purchase was the same 978

number the police had corroborated belonged to Mason. After a

search of his person and car, and with money provided by police,

the CI, under police surveillance, drove to 81 High Street. The

affiant saw the CI park in the complex's parking lot and enter

the front door of the building. On each occasion, police saw

the CI leave the building after about one minute, get into his

car, and drive to a predetermined location for debriefing.

6
The CI described to the affiant after each controlled buy

that the CI would be buzzed in the front door and walk up a few

steps, where the CI would be met by Mason at the door of

apartment 12. The CI would give cash to Mason, and Mason would

give the CI an amount of "suspected fentanyl" commensurate with

the amount of cash provided. It is noteworthy that after the

first controlled buy, the affiant saw Mason smoking on Apartment

12's balcony after the CI left the parking lot.

Contrary to the defendants' claim, there are distinguishing

factors that aided in establishing the CI's veracity sufficient

to overcome the absence of direct police observation of the CI

inside the building entering or leaving apartment 12. Unlike in

Ponte or Costa, there were citizen complaints to the Amesbury

Police "regarding heroin/fentanyl distribution" at 81 High

Street. See Commonwealth v. Figueroa, 74 Mass. App. Ct. 784,

789 (2009) (citizen complaints about heavy traffic, "consistent

with drug activity," at target location shored up defects in

informant's reliability).

Furthermore, and more importantly, a person who revealed

his or her identity to the Amesbury police "reported that there

were two male residents in Apartment 12," identified as the

defendants, "who were dealing to numerous people throughout the

day," causing "constant traffic" to and from that apartment.

7
Contrary to the defendants' claim, this type of tip carries with

it a heightened indicium of reliability, corroborates the CI's

tip, and further supports the magistrate's finding of probable

cause. See Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992),

quoting Commonwealth v. Atchue, 393 Mass. 343, 347 (1984)

(identification of informant to "police strengthened his or her

credibility and 'carrie[d] with it indicia of reliability of the

informant'").

Also, unlike Ponte or Costa, the police saw Mason on the

balcony immediately after the first controlled buy,

demonstrating that Mason was home at the time. Moreover, this

lends credence the CI's report that sometimes he had purchased

drugs directly from Mason on the balcony. See Commonwealth v.

Parapar, 404 Mass. 319, 323 (1989) (informant's tip corroborated

by police surveillance).

In establishing probable cause, "certainty is not

required." Figueroa, 74 Mass. App. Ct. at 788. While it would

have been better if the affidavit had set forth why the

investigation or surveillance would have been jeopardized if the

police went on the second floor to directly observe the CI go to

apartment 12, an imperfect controlled buy does not necessarily

render information obtained from an informant unreliable. See

Commonwealth v. Monteiro, 93 Mass. App. Ct. 478, 483 (2018).

8
See also Commonwealth v. Warren, 418 Mass. 86, 89-91 (1994) (not

fatal to probable cause finding that affiant did not observe

informant enter target apartment to make controlled buy).

In light of the reliability demonstrated by the CI's role

in the three prior controlled buys, the specificity of the CI's

tip, the named and unnamed citizen reports of drug distribution

taking place at apartment 12, and the independent police

corroboration of phone numbers, texts, and vehicles, the

affidavit sufficiently established the CI's veracity. We thus

conclude that the affidavit was sufficient and that the judge

properly denied the motion to suppress.

Order denying motions to
suppress affirmed.

By the Court (Meade, Blake &
Brennan, JJ.6),

Clerk

Entered: August 26, 2024.

6 The panelists are listed in order of seniority.

9