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12-P-1378                                           Appeals Court

            COMMONWEALTH    vs.   CARLOS MANUEL PEREZ.


                           No. 12-P-1378.

       Middlesex.      December 8, 2014. - April 15, 2015.

            Present:   Kafker, Grainger, & Agnes, JJ.


Controlled Substances. Practice, Criminal, Required finding,
     Instructions to jury, Motion to suppress, Warrant,
     Affidavit, New trial. Constitutional Law, Search and
     seizure. Search and Seizure, Warrant, Affidavit, Probable
     cause.


     Complaint received and sworn to in the Lowell Division of
the District Court Department on April 26, 2010.

     A pretrial motion to suppress evidence was heard by Martine
Carroll, J.; the case was tried before Laurence D. Pierce, J.;
and motions for a new trial and for other postconviction relief
were heard by him.


    Jeffrey G. Harris for the defendant.
    Matthew Bailey for the Commonwealth.


    GRAINGER, J.    The defendant was charged with possession of

cocaine with intent to distribute.   He was convicted by a jury

in the District Court of the lesser included offense of

possession of a class B substance, G. L. c. 94C, § 34.    He
                                                                     2


appeals, asserting insufficiency of the evidence, error in the

jury instructions, and error in the denial of his motion to

suppress evidence and his motion for a new trial or a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978).    His claims

of reversible error are primarily dependent on the issuance and

execution of a so-called "no-knock" warrant that produced the

evidence resulting in his conviction.    We address ancillary

claims before considering the issuance of the warrant, referring

to the undisputed facts as they are pertinent to the issues.

    Sufficiency.    The defendant argues that the Commonwealth

failed to demonstrate the requisite knowledge coupled with

intent to exercise control that would support a conviction for

constructive possession of the cocaine found in his bedroom.     We

disagree.   The jury received evidence that the defendant was the

only person in his bedroom when the police executed the search

warrant.    The police found cocaine in a glassine bag in the

pocket of a man's shirt hanging in the defendant's bedroom

closet.    In the defendant's bedroom the police found a bottle of

boric acid, sandwich bags, a digital scale, $422 in cash, a

Massachusetts identification card bearing the defendant's name

and picture, a Venezuelan passport bearing the defendant's name

and a picture closely resembling the defendant, and a billing

receipt addressed to the defendant at that apartment.
                                                                    3


     The defendant's argument that the absence of paraphernalia

for personal use renders the conviction reversible ignores the

fact that he was charged with intent to distribute.   The absence

of paraphernalia supports the distribution charge, and thereby

also supports his conviction for a lesser included offense under

these circumstances.1   In any event, the absence of paraphernalia

is irrelevant to the offense of simple possession.    See

Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 325-326 (2010)

(evidence that goes to intent "does not defeat a determination

of constructive possession").

     Jury instructions.   The defendant asserts error in the

trial judge's failure to track the model jury instruction's

language providing that "[n]either is possession proved simply

because the defendant was associated with . . . the property

where [the cocaine] was found."   Instruction 3.220 of the

Criminal Model Jury Instructions for Use in the District Court

(2009).   The judge's charge included the admonition that "merely

being present in the vicinity of crack cocaine, even if one

knows that it is there, does not amount to possession."      He

instructed the jury that possession is to be determined "from

all the facts and any reasonable inferences that you can draw

from those facts."   And he correctly defined "possession without

     1
       The defendant and the Commonwealth both requested that the
judge instruct the jury on the lesser included offense of simple
possession.
                                                                     4


physical custody" as requiring "knowledge of the object, the

ability to exercise control over that object either directly or

through another person, and the intent to exercise control over

the object."    We conclude from our review of the instructions,

considered in their entirety, that the jury were properly

instructed on the elements of constructive possession.       See

Commonwealth v. Torres, 420 Mass. 479, 484-485 (1995).2      There

was no error.

     Motion to suppress evidence.    The defendant asserts that

the evidence used to convict him was seized pursuant to a search

warrant that failed to meet the veracity test derived from the

requirements set forth in Aguilar v. Texas, 378 U.S. 108 (1964),

and Spinelli v. United States, 393 U.S. 410 (1969).    See

Commonwealth v. Upton, 394 Mass. 363, 369 (1985).3    He argues

that the veracity test was not met because the search warrant

application was submitted by an officer who did not have

firsthand knowledge of the identity and whereabouts of the

confidential informant on whose information the warrant

     2
       The transcript does not allow us to determine whether this
claim was preserved at trial:

     "The court:    Is the defendant content?

     "(Remainder of sidebar discussion is completely
     inaudible.)"
     3
       The defendant does not contest the "basis of knowledge"
test. See Commonwealth v. Forbes, 85 Mass. App. Ct. 168, 173
(2014) (quotation omitted).
                                                                    5


application was based.    The defendant relies on Commonwealth v.

Alfonso A., 438 Mass. 372, 376 & n.4 (2003), where the Supreme

Judicial Court determined that the motion to suppress physical

evidence was properly denied by the motion judge notwithstanding

the fact that "the affidavit did not spell out precisely how the

detective knew the informant's 'identity' and 'whereabouts.'"

The court ruled in that case that the lack of specificity on

these factors "does not detract from the unmistakable import of

the detective's sworn statement, i.e., that the detective felt

confident that he could indeed identify and locate the

informant."    Ibid.   In this case, the detective indicated that

the informant's particulars were known to other members of the

Lowell police department.    Accordingly, as in Alfonso A., he

could clearly "identify and locate the informant" should the

need arise.

    The information provided in the affidavit contained a level

of specificity that indicated the informant's veracity,

Commonwealth v. Atchue, 393 Mass. 343, 348-349 (1984), and

included facts that were confirmed by the police prior to the

application.    Commonwealth v. Alfonso A., supra at 376-378.

Finally, the controlled purchases conducted by the informant

further supported his veracity.     Commonwealth v. Desper, 419

Mass. 163, 168-171 (1994).
                                                                    6


    "No-knock" warrant.    The defendant asserts that the no-

knock warrant was improperly authorized, requiring suppression

of the evidence seized after the police failed to knock and

announce their presence.   The affidavit supporting the warrant

contained the following representations:   1) the extensive

training and experience in drug investigations, controlled

purchases and arrests of the officer who made the affidavit, 2)

the confidential informant's report that the apartment for which

a warrant was sought was "small, confined and private," 3) the

confidential informant's report that the defendant "keeps his

door locked and admits only people whom he knows," 4) the fact

that the defendant sold drugs to the informant only after

arrangements were made by telephone, and 5) the officer's

assessment that, given the retail nature of the defendant's

operation and the fragile nature of the illegal drugs involved,

"it would not be difficult for [the defendant] to destroy the

narcotics if given the forewarning."

    The requirement that police knock and announce their

presence is based on common law principles aimed at protecting

privacy, decreasing the potential for violence and preventing

unnecessary damage.   Commonwealth v. Scalise, 387 Mass. 413, 417

(1982).   Our cases also recognize that competing interests will

justify abrogating the requirement in individual instances.

These are, principally, avoiding the destruction of evidence and
                                                                   7


increasing officer safety.   See Commonwealth v. Cundriff, 382

Mass. 137, 147 (1980), cert. denied, 451 U.S. 973 (1981);

Commonwealth v. Silva, 440 Mass. 772, 783 (2004).   Further,

courts will look to the presence of lookouts and the ability of

police to approach premises undetected in determining whether a

no-knock warrant is justified.   See Commonwealth v. Benlien, 27

Mass. App. Ct. 834, 836 (1989); Commonwealth v. West, 55 Mass.

App. Ct. 467, 470 (2002).

    In this case, the overriding consideration presented in the

warrant application was the potential for destruction of

evidence.   The fragile nature of the drugs, the limited size of

the premises, and the security precautions exercised by the

defendant all emphasize that concern.   Officer safety was not

presented as an issue.

    Our cases recognize that destruction of evidence is a

factor to be considered, but we require more than a general

concern that evidence can be easily destroyed to dispense with

the requirement for police to knock and announce.   Scalise,

supra at 421 (declining to adopt "blanket rule" excusing

requirement of knock and announce "whenever the objects named in

the search warrant are by their nature amenable to ready

disposal or destruction").   See Commonwealth v. Ortega, 441

Mass. 170, 176 (2004).
                                                                      8


       While the warrant application in this case contains

statements that drugs in powder form are easy to destroy or

discard,4 it fails to provide "probable cause to believe that the

evidence will be destroyed, based on other factors uniquely

present in the particular circumstances."       Scalise, supra at

421.       We consider the specific references to the fact that the

"apartment was small, private and confined" and that the

defendant keeps the door locked, admitting only individuals whom

he knows, to be relevant, but ultimately insufficient.       The

limited size of the premises is as likely to aid the police in

securing the evidence of criminality as to enable its disposal

"during the short delay occasioned by the knock and announce

requirement."      Commonwealth v. Macias, 429 Mass. 698, 702

(1999).      As described in the application, the defendant's


       4
       The relevant attestation in the warrant application,
states: "During my training and experience as a Police Officer,
I have learned that individuals involved in the illicit
distribution of narcotics often attempt to destroy drug evidence
if they learn that the police are about to conduct a search.
Because of the fragile nature of Illegal Drugs they are easily
destroyed by such methods as flushing them down toilets,
dissolving them in liquid and emptying containers of baggies in
which they are packaged. I have personally been involved in
arrests of drug dealers who have thrown drugs out of windows,
and swallowed the drugs upon being approached by the police.
Due to the information received that [the defendant] is a retail
or street level dealer, it would not be difficult for him to
destroy the narcotics if given the forewarning. Further, due to
the fact that Cocaine is a powder drug, it is particularly
susceptible to being quickly destroyed. For these reasons, I
respectfully request authorization to execute the search warrant
without first knocking and announcing our presence and purpose."
                                                                      9


security measures are equally likely to be precautions against

robbery, and do not provide probable cause that he would bar the

door to police who announce their presence.    See id. at 703

(window overlooking street, which could allow defendant to "spot

the police coming," without more, did not establish probable

cause); Commonwealth v. Santiago, 452 Mass. 573, 577-578 (2008)

("mere assertion that the owner of a residence to be searched

owns a dog, even of a breed commonly known to be aggressive,

would, standing alone, be insufficient to meet the probable

cause standard").

     We therefore consider whether the evidence seized by the

police must be suppressed as a result of the failure to knock

and announce their presence in this case.     "[A]s a general rule,

the mere fact that an unlawful search and seizure has occurred

should not automatically result in the exclusion of any

illegally seized evidence."   Commonwealth v. Gomes, 408 Mass.

43, 46 (1990) (applying general rule "to violation of the 'no-

knock' rule").   See Commonwealth v. Sheppard, 394 Mass. 381, 391

(1985); Commonwealth v. Rutkowski, 406 Mass. 673, 676 n.5

(1990).   Two factors govern the result:    1) "the degree to which

the violation undermined the . . . governing rule of law," and

2) the extent to which exclusion will serve as a deterrent in

the future.   Commonwealth v. Gomes, supra. These two factors are

interdependent to the extent that (even where constitutional
                                                                   10


rather than, as here, common law principles are implicated),

"[b]ad faith of the police . . . will be relevant in assessing

the severity of any constitutional violation."   Commonwealth v.

O'Connor, 406 Mass. 112, 118 (1989).5,6

     Applying these principles to the present circumstances, we

conclude that suppression is not warranted.   The police did not

act unilaterally; they properly applied for a warrant, requested

a no-knock provision and submitted an affidavit setting forth

all the available and relevant facts known to them.7   While we

conclude as a matter of law that they did not ultimately provide

sufficient basis for the issuance of the warrant in that form,

the police did not act in bad faith, and the defendant makes no

such claim.   Having obtained the warrant, they observed its

strictures.   See Commonwealth v. Grimshaw, 413 Mass. 73, 79-80

(1992) (suppression unwarranted in case of nighttime search

authorization where police acted "lawfully in obtaining the


     5
       See Commonwealth v. Hernandez, 456 Mass. 528, 533 (2010)
(while not adopting Federal approach relying exclusively on
application of "good faith" test, Massachusetts will instead
focus "on whether the violations are substantial and
prejudicial").
     6
       See 1 LaFave, Search & Seizure § 1.3(a), at 69-71 &
§ 1.3(f), at 90 n.66 (5th ed. 2012); Grasso & McEvoy,
Suppression Matters Under Massachusetts Law § 9-2[i][2], at 9-14
(2013-2014 ed.).
     7
       See, e.g., Commonwealth v. Manni, 398 Mass. 741, 742-743
(1986) (failure to state facts supporting no-knock warrant may
lead to suppression of evidence).
                                                                  11


warrant and, except as to time, had engaged in no misconduct in

executing it").   Contrast Commonwealth v. Gomes, 408 Mass. at 47

(suppression warranted where officer who prepared affidavit "had

actual knowledge that [it] contained no particularized facts

which would have shown probable cause").   Under these particular

circumstances and given the detailed nature of the application,

we find not only an absence of any police misconduct but also no

indication that the pertinent rule of law was undermined.

    Motion for new trial and for a "Franks" hearing.      The

defendant asserts error in the judge's denial of his motion for

a new trial and, as a precursor, to conduct a hearing pursuant

to Franks v. Delaware, 438 U.S. 154 (1978).   After the

defendant's conviction, it was revealed that one of the officers

involved in the execution of the search warrant was under

investigation for misconduct in the use of informants, and that

the Commonwealth had nol prossed other cases as a result.

    In response to the defendant's subpoena, the judge required

the Commonwealth to provide an affidavit stating whether the

informant in this case was the same as any informant used by the

Commonwealth in the cases that had been nol prossed.      The

Commonwealth provided an affidavit that there was no evidence of

any overlap.   In denying the defendant's request for further

discovery and for a Franks hearing, the judge found that there

was "no additional information linking the investigation and
                                                                    12


subsequent prosecution of the defendant" to the officer in

question.   A Franks hearing is held to test the veracity of the

affiant, and the officer who provided the affidavit in this case

was not the officer implicated in the investigations raised by

the defendant in his motion.    See Commonwealth v. Wadlington,

467 Mass. 192, 203 (2014).     See also Commonwealth v. Amral, 407

Mass. 511, 519 n.8 (1990).     Here, there was no error, and there

was no abuse of discretion in the denial of the Franks motion or

of the motion for new trial.    See id. at 518; Commonwealth v.

Caban, 48 Mass. App. Ct. 179, 181 (1999).

                                     Judgment affirmed.

                                     Order denying motion for new
                                       trial affirmed.
