Commonwealth v. Santos

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17-P-1627 Appeals Court

COMMONWEALTH vs. JERRY L. SANTOS.

No. 17-P-1627.

Plymouth. March 8, 2018. - January 18, 2019.

Present: Green, C.J., Meade, & Sacks, JJ.

Practice, Criminal, Warrant, Affidavit, Motion to suppress.
Search and Seizure, Warrant, Affidavit.

Indictment found and returned in the Superior Court
Department on March 9, 2016.

A pretrial motion to suppress evidence was heard by Angel
Kelley Brown, J., and the case was tried before Christopher J.
Muse, J.

Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Keith Garland, Assistant District Attorney, for the
Commonwealth.

SACKS, J. On appeal from his conviction of unlawful

possession of a firearm, the defendant argues that a judge erred

in denying his motion to suppress the firearm, found during the

execution of a search warrant. He argues that the affidavit
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submitted in support of the warrant application failed to

establish probable cause because it rested upon information

supplied by a confidential informant but did not demonstrate

that informant's veracity. We disagree and therefore affirm.

Background. We summarize the affidavit, filed in December,

2015. The affiant, State police Trooper Steven Connolly, had

sixteen years of experience, including eight years in

investigations, and had been involved in numerous firearm-

related searches, seizures, and arrests. He and another trooper

had received, within the preceding two days, certain information

about a concealed firearm from a confidential informant, "CI#1."

They knew CI#1's "true identity" and that CI#1 had handled both

loaded and unloaded firearms in the past. CI#1 requested

anonymity out of fear for CI#1's safety.

The affidavit stated that in 2008, CI#1 had provided

another trooper and a sergeant with "accurate information

regarding the location of an illegally possessed loaded 12 gauge

shotgun that was concealed in Brockton." Those officers went to

that location and "seized the specific described loaded 12 gauge

shotgun." The shotgun and ammunition were "submitted for

analysis," but "[a]ny[] more specificity regarding the above

investigation could compromise the identity and safety of CI#1"

because "the target of the current case may[] be familiar with
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the target in the above cited case who possessed the loaded

shotgun."

The affidavit explained the occasion for the current

(December, 2015) warrant application as follows. CI#1 had just

told Trooper Connolly and his colleague that, during the

preceding forty-eight hours, CI#1 had seen "Jerry," "a black

male with dreadlocks," place a silver revolver "in the trunk of

a 1996 red Acura Integra, bearing Massachusetts registration

1KJ926," in a parking lot behind a specified address on Main

Street in Brockton. CI#1 stated that Jerry currently lived with

family members at that address. CI#1 was shown a photograph of

the defendant maintained by the registry of motor vehicles (RMV)

and identified it as depicting Jerry. CI#1 stated that the

Acura was "not in use" and "always remain[ed] parked in the same

location."

Troopers surveilling the parking lot behind the Main Street

address saw both an Acura and the defendant there. CI#1 was

shown a surveillance photograph of the Acura parked in the lot

and confirmed that it depicted the vehicle in which Jerry had

placed the firearm. A check of RMV records revealed that the

Acura was registered to a woman whose last name (like the

defendant's) was Santos, but whom the RMV listed as living in

Taunton. The RMV records also indicated, in the words of the
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affidavit, that the registration of the Acura was "currently

revoked for insurance."

The affidavit recited further information linking the

defendant to the Acura. Specifically, a few years earlier, a

college campus police officer had "queried Massachusetts

registration 439RG2" (which differed from the Acura's current

registration number) and found that it corresponded to an Acura

Integra registered to the defendant. That query came to the

attention of the defendant's Federal probation officer, who

asked him about it in 2013; the defendant stated that he had

purchased a 1996 Acura Integra. Also, a Brockton police report,

apparently from 2013,1 described officers as having responded to

a domestic violence incident and arrested the defendant in a

"little red car" at the Main Street address.

Trooper Connolly's affidavit expressed his opinion that the

defendant owned the Acura but had registered it under a family

member's name "to avoid law enforcement detection." Trooper

Connolly was aware that the defendant had a lengthy record of

drug and other charges, including a 2005 Federal drug conviction

for which he received a substantial committed sentence. Trooper

1 The police report was numbered 13-2288-AR. The affidavit
also referred to a Brockton police report numbered 11-5432-AR as
describing an arrest of the defendant in 2011.
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Connolly himself had arrested the defendant in 2011 for

possession of a class B substance with intent to distribute.

Further investigation disclosed that the defendant's father

lived at the Main Street address and that a 2011 Brockton police

report described the defendant as having assaulted his female

cousin at that address. Also, neither the defendant, nor anyone

else living at the address, nor the registered owner of the

Acura (Ms. Santos), possessed a license to carry a firearm or a

firearm identification card.

The affidavit described the parking lot behind the address

as bordering on a street that was "considered a very high crime

area" -- "the scene of murders, shots fired, and narcotics

dealing." The area was difficult to surveil because individuals

frequently congregated on the street. When Trooper Connolly and

fellow officers had attempted to surveil the area as part of the

current investigation, persons on the street were "immediately

aware of" the officers' presence.

Based on this information, a search warrant for the Acura

issued. When officers went to the parking lot to execute the

warrant, they saw the defendant standing nearby; in his

possession was a car key that fit the Acura. In its trunk,

officers found a revolver, along with mail bearing the

defendant's name. A jury found the defendant guilty of

unlawfully possessing the revolver. This appeal ensued.
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Discussion. We review the four corners of the affidavit to

determine whether it established probable cause to support the

search warrant. See Commonwealth v. O'Day, 440 Mass. 296, 297-

298 (2003). When an affidavit is based on a tip from a

confidential informant, we examine whether the affidavit met the

two-pronged Aguilar-Spinelli2 test, by establishing both the

informant's basis of knowledge and her veracity (i.e., that she

was credible or her information reliable). Commonwealth v.

Byfield, 413 Mass. 426, 428-429 (1992), citing Commonwealth v.

Upton, 394 Mass. 363, 374-375 (1985). See Commonwealth v.

Alfonso A., 438 Mass. 372, 374 (2003). The test is not to be

applied "hypertechnically," Upton, 394 Mass. at 374, and

"independent police corroboration can make up for deficiencies

in either or both prongs of the . . . test." Id. at 376.

Here, the affidavit made clear that the basis of CI#1's

knowledge was CI#1's personal observations. See, e.g., Alfonso

A., 438 Mass. at 374-375 (detailed personal observations

establish basis of knowledge). The defendant thus challenges

only whether the affidavit sufficiently established CI#1's

veracity. We conclude that it did.

2 See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v.
United States, 393 U.S. 410 (1969).
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The defendant first argues that police knowledge of CI#1's

"true identity" was insufficient to establish that the police

could hold CI#1 accountable for providing false information, and

thus it did nothing to support CI#1's veracity. We disagree.

Knowledge of an informant's identity alone has been held to

contribute to his veracity. See Commonwealth v. Cruz, 53 Mass.

App. Ct. 24, 30 (2001), citing Commonwealth v. Bakoian, 412

Mass. 295, 301 (1992). Cf. Alfonso A., 438 Mass. at 375-376

(that police knew confidential informant's whereabouts as well

as identity, making informant reachable, weighed in favor of his

reliability). Moreover, when the affidavit here is "taken as a

whole and read in a commonsense fashion," Alfonso A., 438 Mass.

at 375, it indicates that the police were able to contact CI#1.

The affidavit suggests that CI#1's tip caused the police to

focus on the Acura, that they then surveilled the area and

obtained a photograph of the Acura in the parking lot, and that

CI#1 confirmed that the photograph depicted the vehicle in which

the defendant placed the firearm.3 We read this as indicating

that after receiving CI#1's tip, the police obtained the

3 The affidavit stated that troopers had surveilled the area
on both December 1 and December 2, 2015. The affidavit was
dated December 2 and recited that CI#1 had reported seeing Jerry
place the firearm in the Acura within the last forty-eight
hours.
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photograph, and then were able to locate CI#1 to show it to

CI#1.

The defendant next argues that CI#1's 2008 tip regarding

the shotgun did not support CI#1's veracity because the

affidavit did not indicate that the shotgun was illegally

possessed or that its discovery led to an arrest or conviction.

Cf. Byfield, 413 Mass. at 431 (informant's veracity established

by prior tip leading to arrest and conviction for possession of

cocaine with intent to distribute). Again, we disagree. The

affidavit stated that the 2008 tip furnished "accurate

information regarding the location of an illegally possessed

loaded 12 gauge shotgun that was concealed in Brockton"

(emphasis added). Police officers went to that location and

"seized the specific described loaded 12 gauge shotgun." A

commonsense reading of the affidavit is that CI#1 provided

information about the concealed location of a shotgun and

specifically described it as a loaded 12 gauge model. The

statement that it was "illegally possessed" was made by the

police and establishes that the shotgun was contraband.4

4 As for the defendant's argument that CI#1's 2008 tip was
too far in the past to lend support to CI#1's veracity in 2015,
we rejected just such an argument in Commonwealth v. DiPietro,
35 Mass. App. Ct. 638 (1993). There we held that the age of an
informant's tips did not defeat their value as indicators of
veracity. Id. at 642. "Passage of time . . . does not usually
erode one's truth-telling propensities." Id.
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Nor does a determination of an informant's veracity

necessarily depend on a prior tip having led to an arrest or

conviction. As past decisions have recognized, that a

confidential informant's prior tip led to the seizure of

contraband supports that informant's reliability, even absent

information that an arrest or conviction resulted. See

Commonwealth v. Mendes, 463 Mass. 353, 365 (2012) ("reliability

was established through previous instances where [the

informant's] information led to the confiscation of illegal

narcotics"); Commonwealth v. Vynorius, 369 Mass. 17, 21 (1975)

(reliability established by informant's previously having

"furnished police with accurate information [that] resulted in

the recovery of a stolen battery"); Commonwealth v. Luce, 34

Mass. App. Ct. 105, 108-110 (1993) (reliability supported by

informant's record of having supplied information to police that

led to seizure of cocaine); Commonwealth v. Kiley, 11 Mass. App.

Ct. 939, 939 (1981) ("The reliability of [an] informant could be

inferred from the recital that tips from him had led to the

recovery of contraband at an earlier time").

Finally, any deficiency in the showing of CI#1's veracity

here was counterbalanced by independent "police corroboration"

of a nonobvious detail of the current tip. Alfonso A., 438

Mass. at 377. See Bakoian, 412 Mass. at 301-302 (police

corroboration of tip's nonobvious or predictive details helped
10

show informant's reliability and thus probable cause). It may

be true, as the defendant argues, that anyone in the area could

have observed that a 1996 red Acura Integra was sitting, "not in

use," in the parking lot behind where the defendant's father

lived on Main Street. The nonobvious detail provided by CI#1,

however, was the connection between the Acura and the defendant.

Had the Acura been driven regularly by the defendant or a family

member, anyone in the area might have observed that activity and

connected the defendant to the vehicle. But it was concededly

not in use -- it "always remain[ed] parked in the same location"

-- and so the defendant's link to it was not obvious.

As Trooper Connolly's affidavit recounted, further

investigation of CI#1's tip revealed that an Acura Integra had

once been registered to the defendant (under a different

registration number); that the defendant had told his Federal

probation officer that he had purchased a 1996 Acura Integra;

that Brockton police responding to a prior domestic violence

call (apparently two years earlier) had arrested the defendant

in a "little red car" at the Main Street address; and that the

Acura in the parking lot was registered to a woman with the same

last name as the defendant, but who lived in Taunton rather than

Brockton. This information, taken together and read in a

commonsense fashion rather than hypertechnically, was sufficient

to corroborate CI#1's tip connecting the defendant to the Acura.
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Conclusion. The affidavit sufficiently established the

veracity of CI#1, and any shortcoming in that regard was

compensated for by corroboration of a nonobvious detail supplied

by CI#1. It follows that the motion to suppress was correctly

denied. The defendant offers no other basis for overturning his

conviction.

Judgment affirmed.