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Commonwealth v. Pimentel

Appeals Court of Massachusetts

June 29, 2015

Commonwealth
v.
Denny Pimentel

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in a District Court, the defendant was convicted of possession with intent to distribute a class A and a class B substance (cocaine and heroin), G. L. c. 94C, § 32A( a ), and a related school zone violation, G. L. c. 94C, § 32J.[1] On appeal, he claims that his motion to suppress should have been allowed because the affidavit in support of the search warrant failed to establish probable cause, and that the Commonwealth presented insufficient evidence to convict him on the school zone charge. We affirm.

1. Motion to suppress.

The search warrant affidavit provides as follows. A confidential informant (informant) spoke to Salem police Detective J. Dennis Gaudet, and told him that he had previously purchased cocaine from an individual at " 38 Perkins Street, 2nd floor" named " Jamie." A few weeks later, cooperating with Gaudet and other police officers, the informant carried out two controlled buys of cocaine from " Jamie" at that location. The registry of motor vehicles lists the defendant's address as 38 Perkins Street, apartment 2F; that information matches postal records for the defendant. The defendant was also known to Gaudet, as he had arrested him on a narcotics charge in 2004.

When determining whether probable cause exists to issue a search warrant, we consider the statements contained within the " four corners of the affidavit." Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 460, 826 N.E.2d 761 (2005), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003). " Under the Aguilar-Spinelli standard, if an affidavit is based on information from an unknown informant, the magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that the 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 his information 'reliable' (the veracity test)." Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985) (citations and quotations omitted).

Both prongs of the test have been met in this case. The informant told Gaudet that he had bought drugs from the target, thus providing a basis of knowledge. Commonwealth v. Lima, 80 Mass.App.Ct. 114, 119 n.5, 951 N.E.2d 952 (2011). As for the second prong, veracity, the confidential informant participated in two controlled buys under the supervision of the attesting police officer. The particulars of the two buys confirmed the details of the informant's initial statement to Gaudet. See Commonwealth v. Luna, 410 Mass. 131, 134, 571 N.E.2d 603 (1991) (" Standing alone, [the controlled buys] provided probable cause to search the house" ); Commonwealth v. Russell, 46 Mass.App.Ct. 513, 519, 707 N.E.2d 394 (1999); Commonwealth v. Turner, 71 Mass.App.Ct. 665, 669 n.4, 885 N.E.2d 167 (2008).

Nor is there a fatal ambiguity in the affidavit about the place to be searched, 38 Perkins Street, apartment 2F. " [T]he affidavit should be read as a whole, not parsed, severed, and subjected to hypercritical analysis," giving due deference to the magistrate's determination. Commonwealth v. Clagon, 465 Mass. 1004, 987 N.E.2d 554 (2013) (citations omitted). Although not drafted as clearly as it could have been,[2] the opening paragraph of the affidavit describes the target location within 38 Perkins Street in sufficient physical detail.[3] The target second floor apartment is also consistently referred to throughout the affidavit as being accessed only through the building's front door.[4]

2. School zone violation .

There is no merit to the defendant's argument, made for the first time on appeal, that proof of a valid charter is required to establish a violation of G. L. c. 94C, § 32J, when a charter school is at issue.[5] The plain language of the statute contains no such limitation.[6] Moreover, we have construed that statute broadly, see Commonwealth v. Bell, 442 Mass. 118, 125, 810 N.E.2d 796 (2004), and have given broad meaning to the definition of a school. See Commonwealth v. Paige, 54 Mass.App.Ct. 840, 843-844, 768 N.E.2d 572 (2002). Here, another Salem police detective testified, based on his personal knowledge, that the charter school opened in 2004, and has remained in operation at various points in time thereafter, including at the time of trial. A jury reasonably could have inferred from that testimony that the school was in operation during the time period in question.[7] There was no error.[8]

Judgment affirmed.

Meade, Hanlon & Blake, JJ. [9]


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