Heard: January 12, 2018.
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.
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.
P. Kidd, Assistant District Attorney, for the Commonwealth.
R. Rangaviz, Committee for Public Counsel Services, for the
Present: Vuono, Agnes, & McDonough, JJ.
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.
affidavit filed as part of the warrant application contained
the following facts.
November, 2015, Detective Gracia of the New Bedford police
department spoke with the CI, whose identity and whereabouts
were known to the police. 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 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.
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. A short time
later, the CI was seen leaving the walkway leading to the
rear exterior door. The defendant 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.
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.