Commonwealth v. Forbes

85 Mass.App.Ct. 168

7 N.E.3d 476

COMMONWEALTH

v.Jason FORBES.

No. 12–P–1712.

Appeals Court of Massachusetts, Hampden.

Argued Nov. 5, 2013.

Decided April 8, 2014.

John M. Thompson (Vincent A. Bongiorni, Springfield, with him) for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, BROWN, & FECTEAU, JJ.

CYPHER, J.

In this interlocutory appeal, the defendant, Jason Forbes, seeks reversal of orders by two different judges in the Superior Court, one denying the defendant's motion to suppress and the other denying the defendant's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)( Franks ). The defendant argues that the judge deciding the motion to suppress erred in concluding that a second search warrant affidavit established independent probable cause to search the defendant's apartment. He further argues that the police's exploitation of an improper search requires suppression of evidence in order to deter future police misconduct. We affirm.

Background. The defendant was charged with trafficking in cocaine, distribution of a class D substance, a drug violation near a school or park, possession of a firearm without a firearm identification card, possession of a firearm in the commission of a felony, improper storage of a firearm, and two counts of assault and battery on a police officer. The defendant filed a motion to suppress evidence in which he also sought disclosure of the identity of an informant, and a Franks hearing regarding alleged police misconduct. On July 28, 2011, a Superior Court judge conducted a limited, in camera hearing pursuant to Commonwealth v. Amral, 407 Mass. 511, 554 N.E.2d 1189 (1990). The judge denied the defendant's request for a Franks hearing. A different Superior Court judge subsequently allowed that portion of the defendant's motion seeking to suppress the evidence of a firearm but denied the motion with regard to the remaining evidence.

A single justice of the Supreme Judicial Court granted the defendant's application for leave to prosecute an interlocutory appeal, see Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and transferred the matter to the Appeals Court.¹

Facts. The background facts as found by the judge after an evidentiary hearing on the motion to suppress are as follows. ² On June 21, 2010, Chicopee police Lieutenant Lonny Dakin, an experienced narcotics investigator, procured a search warrant for the premises located at 212–214 Hampden Street, second-floor apartment, in Chicopee. ³ The defendant was the target of the warrant.

Dakin authored the affidavit in support of the application for the search warrant. Read as a whole, the affidavit narrates the following. Within four months of June 21, 2010, Dakin spoke with a confidential informant. The informant told Dakin that the defendant was selling cocaine and pills from the second-floor apartment of 212–214 Hampden Street, which the defendant purportedly shared with another male. The informant stated that he or she had been to that location and personally purchased drugs from the defendant. The informant would “observe the defendant come down from the second floor apartment and sell to him on the porch.” The affidavit stated that “[the informant] has also been to 212/214 Ham[p]den St. Chicopee, MA a couple of times with a third party. Sometimes the third party would go in to the second floor apartment to purchase from [the defendant] and sometimes [the defendant] would come out of the front door of 212/214 Hampden St. to sell to the third party.”

The informant described a pickup truck that the defendant drove. Surveillance by Dakin confirmed that the vehicle, registered to the defendant, was parked in the driveway of 212–214 Hampden Street.

On June 14, 2010, the informant told Dakin that the defendant was still dealing cocaine and pills from the apartment and that within the past three days, the informant had seen the defendant enter the premises with three ounces of cocaine. Within three days of June 21, 2010, the informant told Dakin that he or she had seen the defendant leave the premises with approximately two ounces of cocaine, individually packaged for sale.

Dakin sought a search warrant for the second-floor apartment. The application described the premises as a three-story building with two exterior doors. One door led to a first-floor apartment and the other, Dakin believed, to a second-floor apartment.

The search warrant issued on June 21, 2010. Dakin chose not to execute the warrant immediately. Instead, he periodically traveled by the premises in the hope of spotting the defendant outside.

On June 24, 2010, Dakin, accompanied by Detective Donald LeClair, drove by the premises and observed the defendant exit the front door and proceed to his truck parked in the driveway. LeClair pulled his unmarked police vehicle behind the defendant's truck, blocking it in. Dakin exited the vehicle and approached the defendant, who was looking into the bed of the truck. Recognizing the defendant from a registry of motor vehicles' image, Dakin told him that he had a warrant to search his apartment and asked the defendant to accompany him inside.

The defendant led the officers to the front porch of the premises. On the porch, LeClair attempted to radio extra personnel to assist in the execution of the warrant. While LeClair was momentarily distracted, the defendant made a run for it. He did not get far. Running off the porch, he was tackled by Dakin on the sidewalk. A significant struggle ensued during which the defendant repeatedly yelled, “Paul, Paul.” Eventually the defendant was subdued, handcuffed, and arrested for assault and battery on a police officer. Uniformed police officers arrived shortly thereafter.

LeClair entered the premises and proceeded to the second-floor apartment. A woman answered his knock on the door. LeClair asked the woman if Jason lived there. She responded that he lived upstairs. LeClair noticed a stairway leading to a third-floor apartment. The stairs to the third-floor apartment were not visible from the front porch. LeClair left the premises and met with Dakin.

LeClair informed Dakin that the defendant lived on the third floor and that the search warrant was for the wrong apartment. On Dakin's direction, LeClair and an unidentified uniformed officer proceeded to the third-floor apartment. LeClair knocked on the door. It was answered by the defendant's roommate, Paul Cincone. Cincone, along with a female friend, Becky Gaumond, were in the apartment drinking beer and watching television. LeClair told Cincone that he had a warrant to search the apartment for narcotics. Cincone asked to see it. Knowing that the warrant was for the wrong apartment, LeClair did not show it to him. Instead, LeClair made a cursory check of the apartment for other occupants and then directed Cincone and Gaumond to accompany him outside. The unidentified uniformed officer remained in the apartment. Outside, LeClair and Dakin spoke with Cincone, who disavowed any knowledge of the defendant's cocaine-related activities but acknowledged that the defendant was growing marijuana in the apartment. Cincone, LeClair, and Dakin then returned upstairs to the apartment.⁴ Cincone entered the kitchen and observed the uniformed officer standing in the doorway to the defendant's bedroom. Cincone was told to sit at the kitchen table, and he complied. From his vantage point, Cincone was able to see the uniformed officer enter the defendant's bedroom and to hear the officer rummaging through papers. He also heard the officer exclaim, “I think I found something.” ⁵

Dakin originally considered asking Cincone to sign a “Consent to Search” form but ultimately decided to obtain a search warrant for the third-floor apartment. To that end, he returned to the police station to redraft an affidavit in support of the application for a new search warrant. This second affidavit contained the identical information presented in the first affidavit but was supplemented by a recitation of the day's events, which included the confrontation and struggle with the defendant as well as the information supplied by Cincone. A new search warrant was issued authorizing a search of the third-floor apartment for “[c]ocaine, marijuana, paraphernalia and other material utilized in the use, processing and sale of cocaine.” Dakin returned to the apartment, and with the assistance of other officers executed the warrant, which resulted in the discovery of the contraband.

Discussion. When challenging a search conducted pursuant to a warrant, the defendant has the burden of showing that evidence was obtained illegally. Commonwealth v. Taylor, 383 Mass. 272, 280, 418 N.E.2d 1226 (1981). The Massachusetts statute governing the content of search warrant affidavits requires suppression of evidence seized pursuant to a warrant not based on probable cause. See Commonwealth v. Upton, 394 Mass. 363, 366–367, 476 N.E.2d 548 (1985), citing G.L. c. 276, § 2B.⁶ “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).” Id. at 374–375, 476 N.E.2d 548 (quotations and citations omitted). “[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ ” Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428, 657 N.E.2d 237 (1995).

Probable cause. The defendant argues that the affidavit supporting the second search...