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Commonwealth v. Santos

Appeals Court of Massachusetts, Plymouth

January 18, 2019

COMMONWEALTH
v.
JERRY L. SANTOS.

          Heard: March 8, 2018.

         Indictment found and returned in the Superior Court Department on March 9, 2016.

         A pretrial motion to suppress evidence was heard by Angel Kelley Brown, J., and the case was tried before Christopher J. Muse, J.

          Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.

          Keith Garland, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Meade, & Sacks, JJ.

          SACKS, J.

         On appeal from his conviction of unlawful possession of a firearm, the defendant argues that a judge erred in denying his motion to suppress the firearm, found during the execution of a search warrant. He argues that the affidavit submitted in support of the warrant application failed to establish probable cause because it rested upon information supplied by a confidential informant but did not demonstrate that informant's veracity. We disagree and therefore affirm.

         Background.

         We summarize the affidavit, filed in December, 2015. The affiant, State police Trooper Steven Connolly, had sixteen years of experience, including eight years in investigations, and had been involved in numerous firearm-related searches, seizures, and arrests. He and another trooper had received, within the preceding two days, certain information about a concealed firearm from a confidential informant, "CI#1." They knew CI#1's "true identity" and that CI#1 had handled both loaded and unloaded firearms in the past. CI#1 requested anonymity out of fear for CI#1's safety.

         The affidavit stated that in 2008, CI#1 had provided another trooper and a sergeant with "accurate information regarding the location of an illegally possessed loaded 12 gauge shotgun that was concealed in Brockton." Those officers went to that location and "seized the specific described loaded 12 gauge shotgun." The shotgun and ammunition were "submitted for analysis," but "[a]ny[] more specificity regarding the above investigation could compromise the identity and safety of CI#1" because "the target of the current case may[] be familiar with the target in the above cited case who possessed the loaded shotgun."

         The affidavit explained the occasion for the current (December, 2015) warrant application as follows. CI#1 had just told Trooper Connolly and his colleague that, during the preceding forty-eight hours, CI#1 had seen "Jerry," "a black male with dreadlocks," place a silver revolver "in the trunk of a 1996 red Acura Integra, bearing Massachusetts registration 1KJ926," in a parking lot behind a specified address on Main Street in Brockton. CI#1 stated that Jerry currently lived with family members at that address. CI#1 was shown a photograph of the defendant maintained by the registry of motor vehicles (RMV) and identified it as depicting Jerry. CI#1 stated that the Acura was "not in use" and "always remain[ed] parked in the same location."

         Troopers surveilling the parking lot behind the Main Street address saw both an Acura and the defendant there. CI#1 was shown a surveillance photograph of the Acura parked in the lot and confirmed that it depicted the vehicle in which Jerry had placed the firearm. A check of RMV records revealed that the Acura was registered to a woman whose last name (like the defendant's) was Santos, but whom the RMV listed as living in Taunton. The RMV records also indicated, in the words of the affidavit, that the registration of the Acura was "currently revoked for insurance."

         The affidavit recited further information linking the defendant to the Acura. Specifically, a few years earlier, a college campus police officer had "queried Massachusetts registration 439RG2" (which differed from the Acura's current registration number) and found that it corresponded to an Acura Integra registered to the defendant. That query came to the attention of the defendant's Federal probation officer, who asked him about it in 2013; the defendant stated that he had purchased a 1996 Acura Integra. Also, a Brockton police report, apparently from 2013, [1] ...


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