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Massachusetts Appeals Court Reverses Suppression Order, Despite Cop’s Sloppy Warrant Application

While acknowledging a police officer’s affidavit in support of a search warrant was “not a model of detail or clarity,” the Massachusetts Appeals Court today nonetheless upheld the issuance of a search warrant that led to the defendant’s indictment for trafficking heroin.  The name of the case is Commonwealth v. Perez

A confidential informant told New Bedford police officers that the defendant was selling heroin from a particular apartment in the city.  The informant told the police the defendant would be conducting a drug deal from the residence while operating a Chevy Malibu with Rhode Island license plates.  The police conducted surveillance and watched the defendant and another man enter the Malibu, drive to another home in New Bedford, stop for a short period of time, and drive back toward the subject apartment.  After making these observations, the investigating officers supervised the informant in purchasing heroin from the defendant in a so-called controlled buy (which means the informant buys drugs from the defendant while under the supervision of the police).  The police observed a hand-to-hand transaction between the defendant and the informant, and then followed the defendant back to his apartment.  Finally, the informant told the cops the defendant was going to conduct a delivery of heroin on September 12, 2012, at approximately 8:00 at night.  The police watched the defendant and another man leave the apartment around 8:00, drive to a nearby gas station, and engage in a hand-to-hand transaction with the driver of another car.  The police stopped the driver of the second car as he left the gas station and found him to be in possession of a large amount of heroin he said he had just purchased.  Other officers stopped the defendant and found him to be in possession of nearly $1,500 in cash.  The police arrested the defendant and secured his apartment until they obtained a search warrant.  Once the warrant was issued, the police searched the subject apartment and found more than 200 grams of heroin, which resulted in the defendant’s indictment for trafficking.

The defendant filed a motion to suppress the drugs, arguing the Commonwealth could not prove the reliability of the informant who had provided information to the police.  A superior court judge agreed, and suppressed the heroin.  The Commonwealth appealed and the Appeals Court reversed the suppression order.  When police rely on a confidential informant to obtain a search warrant, the Commonwealth bears the burden of proving the informant’s: (1) basis of knowledge; and (2) credibility.  The Appeals Court concluded the basis of knowledge prong was satisfied, as the informant provided detained information about the defendant, his date of birth, and his aliases.  The informant was able to provide a description of at least one of the defendant’s cars, which suggested the informant had made personal observations that he passed along to the police.  The question was whether the Commonwealth had established the informant was credible.  While there was nothing in the search warrant application establishing the informant had previously provided reliable information, the police had corroborated his information by conducting their own surveillance.  Accordingly, the informant was considered to be credible, and the magistrate who issued the search warrant correctly concluded there was probable cause to believe there would be drugs found in the apartment.

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