Commonwealth v. Zorn
Commonwealth v. Zorn
Opinion of the Court
A criminal complaint was filed on May 16, 2003, charging the defendant, Robert H. Zorn, with indecent assault and battery on a child under the age of fourteen, along
Background. On April 11, 2003, Massachusetts State police Trooper Laura Hayes filed an application for a search warrant to search the defendant’s residence at 144 Ledgewood Road in Dedham. Trooper Hayes submitted a nine-page affidavit in support of the application. Much of the information averred by Trooper Hayes came to her through two independent chains of hearsay reporting the victim’s account. The validity of Trooper Hayes’s reliance on this hearsay is the heart of the dispute in this case.
In the affidavit, Trooper Hayes stated that she received a copy of a Department of Social Services (DSS) statement under G. L. c. 119, § 51 A, on or about April 10, 2003.
As recited in the 51A statement and recounted in the search warrant affidavit, the mother stated that on April 6, 2003, a piece of paper fell out of the pocket of the victim’s twelve year old sister. The paper had the Internet address of a pornographic website written on it. The victim’s sister told her parents that she had gotten the Internet address from the victim, who had said that she and the defendant had visited the website together
Trooper Hayes contacted Murdock on April 11, 2003, and Murdock confirmed that she had conducted the intake on this case and that the mother had relayed the information voluntarily. Murdock also indicated that Erin Senges, an investigator for DSS, had been assigned to investigate the complaint of sexual abuse.
Trooper Hayes stated that after speaking with Murdock, she next spoke with Senges. Senges told Trooper Hayes that as part of the investigation, she contacted Dr. Doherty, who repeated what the victim had told him about the incident with the defendant. The victim had told him that she had sat on the defendant’s knees while they had been looking at pornography from computer disc's. She stated that she had become “nervous and uncomfortable,” and then the defendant had put his right hand under her underwear and had begun to fondle her vagina, but there had been no penetration. She said she had felt
The rest of the affidavit concerned the manner in which computers store data and the reasons why there was probable cause to believe that relevant evidence was still present on the defendant’s computer. The search warrant sought computer components, data files, and other specified information constituting evidence of a violation of G. L. c. 272, § 28, all located at the defendant’s Dedham residence. The search warrant was granted, and was executed at the residence on April 11, 2003. The evidence collected under the warrant led to the charges filed against the defendant.
Discussion. The question is whether the totem pole hearsay evidence
When hearsay is relied upon to supply probable cause, under art. 14 of the Massachusetts Declaration of Rights, we employ the Aguilar-Spinelli
As we have noted, the thrust of the defendant’s argument for suppression is that Trooper Hayes relied solely on chains of
Turning to the first prong of the Aguilar-Spinelli standard, the defendant argues that the affidavit rests on an insufficient basis of knowledge because all the persons the affiant relied upon predicated their knowledge of the alleged assault upon the victim’s account. It is well established that hearsay, standing alone, can satisfy the basis of knowledge prong, if reliable. See, e.g., Commonwealth v. Grzembski, 393 Mass. 516, 521 (1984); Commonwealth v. Harding, 27 Mass. App. Ct. 430, 435-436 (1989); Commonwealth v. Peterson, 61 Mass. App. Ct. at 635. When dealing with a chain of hearsay, however, each link must be tested and found reliable under Aguilar-Spinelli. See Peterson, supra. See generally Smith, Criminal Practice and Procedure § 208 (2d ed. 1983 & Supp. 2005).
In this case, the first link in the chain, the victim, presumptively meets the basis of knowledge test because her information was based upon personal observation. See, e.g., Commonwealth v. Allen, 406 Mass. 575, 578 (1990). The other informants in both chains all based their knowledge on the victim’s statements. This is sufficient to satisfy the basis of knowledge inquiry because the other informants were relying on the specific statements of a person, known to the police, who claimed she was the victim of a serious crime, something patently “more than a casual rumor or an individual’s general reputation.” See Commonwealth v. Robinson, 403 Mass. 163, 165 (1988). Contrast Commonwealth v. Honneus, 390 Mass. 136, 141-142 (1983) (insufficient basis where no way to tell how initial source learned hearsay information); Commonwealth v. Reddington, 395 Mass. 315, 322 (1985) (no basis of knowledge where informant “had been told” by
Turning to the veracity prong, the defendant acknowledges that information provided by named, unpaid informants generally is accorded more weight. See Commonwealth v. Grzembski, 393 Mass. at 522. Nevertheless, he contends that the mere fact that an informant is named does not automatically make her information reliable; it is simply one factor. See Commonwealth v. Atchue, 393 Mass. at 347. The defendant claims that there are no other indicia of veracity for any of the informants named in the affidavit. Moreover, he argues that the mother undercut her credibility by restricting access to the victim. The defendant also argues that the fact that the victim is named should not add to her credibility because she never voluntarily submitted her name to the police, and even her mother only spoke with DSS. Finally, the defendant faults the police investigation for not attempting to corroborate any of the victim’s allegations.
The defendant’s argument is unpersuasive. Several factors establish the veracity of the victim and her mother. First, the victim was more than a named informant — she was the victim of the alleged crime. A victim of a crime presumptively satisfies the veracity prong. Commonwealth v. Carey, 407 Mass. 528, 534 n.4 (1990). “A serious charge . . . when volunteered by an identified party . . . carries with it indicia of reliability,” Commonwealth v. Atchue, supra, quoting from United States v. Wilson, 479 F.2d 936, 940 (7th Cir. 1973), because the identified person is not a “faceless informer” whose inarticulated self-interest would render the information automatically suspect, Commonwealth v. Atchue, supra. This presumption is not defeated simply because the victim, an eight year old girl, did not report the crime directly to police. See Commonwealth v.
Next, considering the mother, she too manifested other indicia of reliability to go along with the fact that she voluntarily named herself to authorities and instigated an investigation into her own family. As the mother of the victim, she presumably had a strong desire to see the person who allegedly molested her child brought to justice, which gave her statement “an ostensible patina of credibility.” See Commonwealth v. Aarhus, 387 Mass. 735, 744 (1982). See also Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-5(a)(l), at 10-9 (2001 & 2004 eds.) (“a victim of a crime or close relatives of a victim are presumed to be reliable not only by virtue of their being named, but also by their desire to bring the crime to the attention of the authorities and to see that justice is done”). Furthermore, the veracity of the statements of both the victim and her mother is bolstered by the fact that the details related through their hearsay chain were corroborated by the other hearsay chain. The facts reported to Murdock by the mother were virtually identical to those Dr. Doherty reported to Senges.
As a final matter, we note that police officers and other government officials involved in an investigation are presumed to be reliable and their information credible. See United States v. Ventresca, 380 U.S. at 111; Grasso & McEvoy, supra at § 10-5(a)(l). See also Commonwealth v. Cruz, 373 Mass. at 684. Consistent with that principle, the professions of the intermediary parties here, DSS intake screener and DSS investigator, acting pursuant to their public safety mission, provide further credibility as to their statements. See G. L. c. 18B, § 2(2) (DSS shall provide protective services for children); G. L. c. 119, § 51B(4) (DSS shall notify local district attorney in cases where child has been sexually assaulted).
Conclusion. Notwithstanding totem pole hearsay, the affidavit adequately demonstrated probable cause to believe that items related to the crime would be found at the defendant’s residence. Consequently, we reverse the order of the District Court suppressing the evidence seized pursuant to the warrant. A new order shall enter denying the motion.
So ordered.
This type of statement is one part of a statutory scheme that requires certain parties to report suspected incidents of child abuse to DSS, see G. L. c. 119, § 51A, which investigates and potentially forwards the information to law enforcement, see G. L. c. 119, § 51B.
The names of the alleged victim and her sister have been impounded.
There is some confusion whether the victim spoke directly to Murdock, or whether the mother simply relayed the victim’s story to Murdock. Although the affidavit states that the victim spoke directly to Murdock on this point, it also states that the mother refused to allow DSS to contact the victim directly. We need not speculate, because even if we assume that the victim only told her mother, who then relayed the information, we still conclude that there was probable cause for the warrant.
See Commonwealth v. Boyer, 58 Mass. App. Ct. 662, 666 (2003) (totem pole hearsay is hearsay within hearsay).
See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 415 (1969).
As one commentary has observed:
“Each prong looks at information from a particular perspective. . . . The basis of knowledge prong looks at the information to determine, from the perspective of the informant or the supplier of the information, whether particular evidence of criminal activity might be found at a particular location. In other words, the basis of knowledge examines how the informant or provider of information concluded that the particular evidence of criminal activity was at the location [she] identified. On the other hand, the veracity prong looks at why the affiant concluded, and hence the magistrate can conclude, that the provider of the information was reliable, thus establishing that the information provided (to the effect that evidence of criminal activity is to be found at the particular location) is credible or worthy of belief. In other words, the veracity test is a two-part inquiry. It examines why the affiant concluded, and the magistrate should conclude, not only that the provider of the information was reliable but also that the information provided is credible or worthy of belief.”
Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-3, at 10-4 (2001 & 2004 eds.).
Dr. Doherty’s own credibility is supported by (1) the fact that he is named and identifiable to police; (2) his position as a disinterested professional who could be punished for providing false information, see G. L. c. 119, § 51 A; and (3) the provisions of § 51 A, which require cooperation with law enforcement when there is reason to believe a child has been abused.
The victim’s veracity was buttressed further by the statement of her sister, as reported by her mother to Murdock, and as reported by the victim to Dr. Doherty, regarding the name of the pornographic Internet website that had been written on the piece of paper that had fallen from the victim’s sister’s pocket.
Reference
- Full Case Name
- Commonwealth v. Robert H. Zorn
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- 5 cases
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- Published