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16-P-1633                                             Appeals Court

               COMMONWEALTH   vs.   PAULO MONTEIRO.


                          No. 16-P-1633.

        Bristol.       January 12, 2018. - June 28, 2018.

            Present:   Vuono, Agnes, & McDonough, JJ.


Controlled Substances. Constitutional Law, Search and seizure,
     Probable cause. Search and Seizure, Probable cause,
     Warrant, Affidavit. Practice, Criminal, Motion to
     suppress.



     Indictment found and returned in the Superior Court
Department on January 14, 2016.

     A pretrial motion to suppress evidence was heard by Raffi
N. Yessayan, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.
     David R. Rangaviz, Committee for Public Counsel Services,
for the defendant.
                                                                    2


     AGNES, J.   In this interlocutory appeal by the

Commonwealth, we must decide whether the information provided by

a first-time, confidential police informant (CI) was

sufficiently corroborated by a single, imperfectly executed

controlled "buy" of cocaine for the purposes of establishing

probable cause for the issuance of a warrant to search the

defendant's apartment.    We conclude that the affidavit was

sufficient to establish the CI's basis of knowledge and

veracity, and that the information provided by the CI, along

with information gathered by the police, as set forth in the

affidavit in support of the search warrant, established probable

cause.   Accordingly, we reverse the order allowing the

defendant's motion to suppress.

     Background.   The affidavit filed as part of the warrant

application contained the following facts.

     In November, 2015, Detective Gracia of the New Bedford

police department spoke with the CI, whose identity and

whereabouts were known to the police.1    The CI stated that they

had contacted the defendant, Paulo Monteiro, by telephone or had

"show[n] up [at] his residence" in New Bedford to purchase

cocaine in the past.     The CI informed Detective Gracia that they

continue to purchase cocaine from the defendant.    The CI

     1 The affidavit does not indicate whether the CI previously
worked with the New Bedford police department. We therefore
assume that the CI was a first-time informant.
                                                                     3


provided Detective Gracia with a physical description of the

seller ("a Cape Verdean male 20 years old approx 6' tall with a

medium build") and the seller's address.   Detective Gracia

confirmed via the police department's computer system that a

person named Paulo Monteiro had the same listed address as that

provided by the CI.    Detective Gracia also reviewed the

defendant's criminal record and determined that he was on

probation for statutory rape.    A booking photograph of the

defendant was shown to the CI.   The CI stated that the person in

the photograph, whom the CI identified as the defendant, was the

person who had sold cocaine to the CI in the past.

     Detective Gracia later met the CI to arrange a controlled

buy of cocaine from the defendant.   The CI was searched and

determined to be free of contraband and money.    Detective Gracia

then gave the CI money to purchase cocaine from the defendant.

Detective Gracia and other members of the New Bedford police

department maintained surveillance of the CI.    They observed the

CI walking toward the rear exterior door of the defendant's

apartment building.2   A short time later, the CI was seen leaving

the walkway leading to the rear exterior door.    The defendant

     2 The layout of the apartment building is unclear from the
statements in the affidavit. The affidavit indicated that the
defendant lived on the first floor of the apartment building,
but did not indicate how many other units were contained in the
building, whether other apartments were located on the first
floor, or whether the rear exterior door led directly into the
defendant's apartment.
                                                                      4


was not observed entering or exiting the apartment building

through the rear exterior door.    The CI was kept under

surveillance until the CI met Detective Gracia at a

predetermined location where the CI provided Detective Gracia

with a quantity of what the CI said was cocaine.     The CI stated

that they purchased the cocaine from the defendant inside his

first-floor apartment.    The CI was again searched and determined

to be free of money and contraband.      The material the CI turned

over to the police was field tested and found to be cocaine.

    Detective Gracia applied for, and a magistrate subsequently

issued, a warrant to search the defendant's apartment.       Upon

execution of the search warrant, the police found narcotics and

drug paraphernalia inside the defendant's apartment.       An

indictment was returned against the defendant for trafficking in

cocaine.   See G. L. c. 94C, § 32E(b).    The defendant moved to

suppress the contraband and related drug paraphernalia found

during the search on the basis that the affidavit provided to

the magistrate did not establish probable cause.     The

defendant's motion to suppress was allowed after the motion

judge concluded that the affidavit failed to establish both the

CI's basis of knowledge and veracity.     For the reasons set forth

below, we reverse.

    Discussion.      Article 14 of the Massachusetts Declaration of

Rights requires that a search warrant issue only upon a showing
                                                                    5


of probable cause.    Commonwealth v. Foster, 471 Mass. 236, 241

(2015).    In determining whether the probable cause standard was

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

affidavit'" supporting the application for the search warrant.

Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from

Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995).

"Because a determination of probable cause is a conclusion of

law, we review a search warrant affidavit de novo."    Foster,

supra at 242.

     In Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (Upton

II), the Supreme Judicial Court determined that "art. 14

provides more substantive protection to criminal defendants than

does the Fourth Amendment" to the United States Constitution.

When an affidavit in support of a search warrant is based on

information supplied by an unknown informant, art. 14 requires

the magistrate called upon to issue a search warrant to apply

the so-called Aguilar-Spinelli test to assess whether the

affidavit is sufficient to establish probable cause to issue the

warrant.   See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.

United States, 393 U.S. 410 (1969).3


     3 In particular, in Upton II, the Supreme Judicial Court
rejected the decision of the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213 (1983), and the "totality of the
circumstances" test announced there to replace the Aguilar-
Spinelli test.
                                                                   6


    "Where information from an unidentified informant is relied
    on to supply probable cause to search, art. 14 . . .
    requires that the affidavit apprise the magistrate of (1)
    some of the underlying circumstances from which the
    informant concluded that contraband was where he claimed it
    was (the basis of knowledge test), and (2) some of the
    underlying circumstances from which the affiant concluded
    that the informant was credible or the information reliable
    (the veracity test)."

Commonwealth v. Warren, 418 Mass. 86, 88 (1994).

    The defendant concedes, and we agree, that the basis of

knowledge test was satisfied by the CI's statement that they had

purchased cocaine from the defendant inside the target apartment

within seventy-two hours of the warrant issuing.   See

Commonwealth v. Desper, 419 Mass. 163, 166 (1994).

    We next examine whether the veracity prong has been

satisfied.   The affidavit submitted to the magistrate indicated

that the CI was a first-time, confidential police informant,

which rendered the statements made by the CI contained in the


    "The test we adopt has been followed successfully by the
    police in this Commonwealth for approximately twenty years.
    It is a test that aids lay people, such as the police and
    certain magistrates, in a way that the 'totality of the
    circumstances' test never could. We believe it has
    encouraged and will continue to encourage more careful
    police work and thus will tend to reduce the number of
    unreasonable searches conducted in violation of art. 14.
    We reject the argument that the higher standard will cause
    police to avoid seeking search warrants. We have no sense,
    and certainly we have no factual support for the
    proposition, that in recent years police in this
    Commonwealth have risked conducting warrantless searches
    because of the unreasonable strictures of the Aguilar-
    Spinelli test."

Upton II, 394 Mass. at 376.
                                                                    7


affidavit, standing alone, insufficient to satisfy the veracity

prong of the Aguilar-Spinelli test.   See Commonwealth v. Alfonso

A., 438 Mass. 372, 376 (2003) ("Although police knowledge of the

CI's 'identity' and 'whereabouts' would not be adequate standing

alone to confirm the informant's reliability, it is a factor

that weighs in favor of reliability"); Commonwealth v. Figueroa,

74 Mass. App. Ct. 784, 787 (2009) (information from first-time

informant "ordinarily would not meet the veracity requirements

imposed by art. 14").

    However, "a properly monitored controlled purchase of

illegal drugs provides sufficient corroborating evidence to

overcome any shortfalls in meeting the constitutional

reliability requirements imposed on confidential informants."

Figueroa, supra at 787-788.   See Commonwealth v. Luna, 410 Mass.

131, 134 (1991) (two controlled purchases of narcotics by

confidential informant were sufficient, standing alone, to

provide probable cause to search defendant's home); Warren, 418

Mass. at 87, 89 (tip containing detailed information about

defendant's apartment and location of drugs contained therein,

coupled with single controlled buy, sufficient to establish

informant's veracity); Villella, 39 Mass. App. Ct. at 427-428

(probable cause established where police corroborated portions

of informant's detailed tip and informant made single controlled

buy at defendant's residence through intermediary).     See also
                                                                   8


Commonwealth v. Cruz, 430 Mass. 838, 842 n.2 (2000), citing

Warren, supra.4      In Desper, 419 Mass. at 168, the Supreme

Judicial Court set forth the essential components of a

controlled buy:

        "(1) a police officer meets the informant at a
        location other than the location where is it suspected
        that criminal activity is occurring; (2) the officer
        searches the informant to ensure the informant has no
        drugs on his person and (usually) furnishes the
        informant with money to purchase drugs; (3) the
        officer escorts or follows the informant to the
        premises where it is alleged illegal activity is
        occurring and watches the informant enter and leave
        those premises; and (4) the informant turns over to
        the officer the substance the informant has purchased
        from the residents of the premises under
        surveillance."

Here, the affidavit does not indicate that the affiant observed

the CI's physical entry into, or exit from, the building housing

the defendant's apartment during the course of the controlled

buy.5       The defendant argues that this deficiency in the

controlled buy rendered the information provided by the CI

unreliable for the purposes of establishing probable cause.



       Courts in other jurisdictions have deemed a single
        4

controlled buy sufficient to establish probable cause. See
People v. Williams, 139 Mich. App. 104, 108 (1984), overruled in
part on other grounds, People v. Russo, 439 Mich. 584, 603-604
(1992); State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App.
2000); State v. Barrett, 132 Vt. 369, 370, 374 (1974).

       As discussed in note 2, supra, the affiant failed to state
        5

with specificity whether the rear exterior door mentioned in the
affidavit led directly into the defendant's apartment or into an
apartment building that housed multiple units, including the
defendant's apartment.
                                                                   9


     Although "the steps customary in a controlled buy should be

taken" when a controlled buy is being used to corroborate a

statement made by a confidential informant that otherwise would

not be sufficient to establish probable cause, id. at 170,

probable cause may nevertheless be established where the police

fail to comply with one of the four investigatory steps

customarily associated with a controlled buy.6   See id. at 170-

171 (probable cause requirement was met where police failed to

search confidential informant for contraband before two

controlled buys).   Here, the magistrate was not compelled to

conclude that because the police did not observe the CI's

physical entry into and exit from the apartment building, the

information contained in the affidavit was insufficient to

establish probable cause.   In the circumstances of this case,

the police observation of the CI walking toward the door to the

building and then a few minutes later walking away from that

area and turning over a quantity of drugs, when coupled with the

other facts, was sufficient to support the magistrate's

conclusion that the CI was credible.   In cases involving a

controlled buy of drugs from a seller who is located inside a


     6 The result we reach should not be understood as
encouragement to conduct controlled buys without strict
compliance with the investigatory steps set forth in Desper,
supra. Instead, we recognize that it may not be possible in
every case for the police to observe an informant's actual entry
into the building in which the seller's housing unit is located.
                                                                  10


multiunit building, we do not require that the police observe

the informant enter the particular apartment where the

transaction is reported to have occurred in order to demonstrate

the reliability of the informant.   See Warren, 418 Mass. at 90

("It is not fatal to the warrant application that the police did

not observe which of the three apartments the informant entered.

Based on the information provided by the informant and their own

observations, the police could infer that the defendant was

dealing drugs from his second-floor apartment").

    "In dealing with probable cause . . . we deal with

probabilities.   These are not technical; they are factual and

practical considerations of everyday life on which reasonable

and prudent men . . . act."   Commonwealth v. Hason, 387 Mass.

169, 174 (1982), quoting from Brinegar v. United States, 338

U.S. 160, 175 (1949).   To that end, "the question is whether

reasonable and prudent people would act on the basis of the

information gathered by the police, not whether the information

would satisfy legal technicians."   Commonwealth v. Fontaine, 84

Mass. App. Ct. 699, 704 (2014), citing Brinegar, supra.   Here,

the controlled buy was executed less than seventy-two hours

before the filing of the warrant application and affidavit.      The

affidavit indicated that the CI, whose identity and whereabouts

were known to Detective Gracia, see Alfonso A., 438 Mass. at

375-376, positively identified the defendant as having sold the
                                                                   11


CI cocaine from the target apartment in the past.   The CI

reported that they had been buying cocaine from the defendant at

the location to be searched.   The affidavit further stated that

the defendant was on probation for committing a serious felony.

The affidavit indicated that all the essential steps of a

controlled buy were met, with the exception that the CI was not

directly observed entering or exiting the building or target

apartment.   While the execution of the controlled buy was

lacking in this respect, the affidavit stated that the CI was

observed walking toward the rear door of the defendant's

apartment building, returned a short time later under police

surveillance with a quantity of cocaine from the vicinity of the

rear exterior door, and informed the officers that they

purchased the cocaine from the defendant inside the apartment.

This information was sufficient to allow the magistrate to

reasonably infer that the CI entered and purchased drugs in the

defendant's apartment.   See Warren, 418 Mass. at 90; Fontaine,

supra at 704, quoting from Commonwealth v. Jimenez, 438 Mass.

213, 218 (2002) ("In reviewing affidavits in support of search

warrants, we allow 'considerable latitude' for the drawing of

inferences").7


     7 The Supreme Judicial Court has "held repeatedly that a
magistrate should rely on '[r]easonable inferences and common
knowledge . . . in determining probable cause.'" Commonwealth
v. Byfield, 413 Mass. 426, 429-430 (1992), quoting from
                                                                   12


     Finally, we are mindful that in order to encourage the

police to apply for search warrants, a reviewing court should

allow "a certain leeway or leniency in the after-the-fact review

of the sufficiency of applications for warrants."   Commonwealth

v. Corradino, 368 Mass. 411, 416 (1975).   See United States v.

Ventresca, 380 U.S. 102, 109 (1965); Commonwealth v. Cruz, 430

Mass. 838, 840 (2000); Commonwealth v. Monterosso, 33 Mass. App.

Ct. 765, 770 (1992).

     For the above reasons, we conclude that the affidavit,

"taken as a whole and read in a commonsense fashion," Alphonso

A., 438 Mass. at 375, demonstrated that the CI provided the

police with sufficiently reliable information to support the

magistrate's probable cause determination.8



Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). The defendant
relies on Desper, 419 Mass. at 171 n.5, for his argument that no
inferences can be drawn with respect to probable cause
determinations based on controlled buys. In Desper, the court
was merely pointing out that the inclusion of the term
"controlled buy" in an affidavit, without more, does not give
rise to an inference that all of the investigatory steps of a
controlled buy were met in a particular case. Ibid. Here, the
steps taken to control the buy were explicitly set out in
Detective Gracia's affidavit.

     8 This is not a case in which the controlled buy was
insufficient to establish a nexus between the defendant's drug
activity and the target apartment. In Commonwealth v. Pina, 453
Mass. 438, 439-440 (2009), the informant making the controlled
buy was instructed to meet the defendant at a prearranged
location away from the defendant's residence. The defendant
then left his residence and proceeded to complete a drug
transaction with the informant at the predetermined location.
Ibid. The Supreme Judicial Court held that the information
                                                                  13


                                   Order allowing motion to
                                      suppress reversed.




contained in the affidavit, including the description of the
controlled buy, was insufficient to establish a nexus between
the location to be searched (the defendant's apartment) and the
defendant's drug activity. Id. at 442. Here, in contrast, the
affiant sought a warrant to search the defendant's apartment
after the CI made a controlled buy at the defendant's apartment
and where the CI had previously purchased cocaine from the
defendant's apartment.
