Commonwealth v. Monteiro
Commonwealth v. Monteiro
Opinion
*478 In this interlocutory appeal by the Commonwealth, we must decide whether the *1232 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 *479 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.
Background . The affidavit filed as part of the warrant application contained the following facts.
In November, 2015, Detective Gracia of the New Bedford police department spoke with the CI, whose identity and whereabouts were known to the police. 1 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.
Detective 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. 2 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 *480 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.
Detective Gracia applied for, and a magistrate subsequently issued, a warrant to search the defendant's apartment. Upon execution of the search warrant, the police *1233 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.
Discussion
. Article 14 of the Massachusetts Declaration of Rights requires that a search warrant issue only upon a showing of probable cause.
Commonwealth
v.
Foster
,
In
Commonwealth
v.
Upton
,
*481
Spinelli
v.
United States
,
"Where information from an unidentified informant is relied on to supply probable cause to search, art. 14 ... requires that the affidavit apprise the magistrate of (1) some of the underlying circumstances from which the informant concluded that 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 the information reliable (the veracity test)."
Commonwealth
v.
Warren
,
*1234
The defendant concedes, and we agree, that the basis of knowledge test was satisfied by the CI's statement that they had purchased cocaine from the defendant inside the target apartment within seventy-two hours of the warrant issuing. See
Commonwealth
v.
Desper
,
We next examine whether the veracity prong has been satisfied. The affidavit submitted to the magistrate indicated that the CI was a first-time, confidential police informant, which rendered the statements made by the CI contained in the affidavit, standing alone, insufficient to satisfy the veracity prong of the
Aguilar
-
Spinelli
test. See
Commonwealth
v.
Alfonso A
.,
However, "a properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants."
Figueroa
,
supra
at 787-788,
"(1) a police officer meets the informant at a location other than the location where is it suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance."
Here, the affidavit does not indicate that the affiant observed the CI's physical entry into, or exit from, the building housing the *483 defendant's apartment during the course of the controlled buy. 5 The defendant *1235 argues that this deficiency in the controlled buy rendered the information provided by the CI unreliable for the purposes of establishing probable cause.
Although "the steps customary in a controlled buy should be taken" when a controlled buy is being used to corroborate a statement made by a confidential informant that otherwise would not be sufficient to establish probable cause,
id
. at 170,
"In dealing with probable cause ... we deal with probabilities. These are not technical; they are factual and practical considerations
*484
of everyday life on which reasonable and prudent men ... act."
Commonwealth
v.
Hason
,
For the above reasons, we conclude that the affidavit, "taken as a whole and read in a commonsense fashion,"
Alfonso A
.,
Order allowing motion to suppress reversed .
The affidavit does not indicate whether the CI previously worked with the New Bedford police department. We therefore assume that the CI was a first-time informant.
The layout of the apartment building is unclear from the statements in the affidavit. The affidavit indicated that the defendant lived on the first floor of the apartment building, but did not indicate how many other units were contained in the building, whether other apartments were located on the first floor, or whether the rear exterior door led directly into the defendant's apartment.
In particular, in
Upton II
, the Supreme Judicial Court rejected the decision of the United States Supreme Court in
Illinois
v.
Gates
,
"The test we adopt has been followed successfully by the police in this Commonwealth for approximately twenty years. It is a test that aids lay people, such as the police and certain magistrates, in a way that the 'totality of the circumstances' test never could. We believe it has encouraged and will continue to encourage more careful police work and thus will tend to reduce the number of unreasonable searches conducted in violation of art. 14. We reject the argument that the higher standard will cause police to avoid seeking search warrants. We have no sense, and certainly we have no factual support for the proposition, that in recent years police in this Commonwealth have risked conducting warrantless searches because of the unreasonable strictures of the Aguilar - Spinelli test."
Upton II
,
Courts in other jurisdictions have deemed a single controlled buy sufficient to establish probable cause. See
People
v.
Williams
,
As discussed in note 2, supra , the affiant failed to state with specificity whether the rear exterior door mentioned in the affidavit led directly into the defendant's apartment or into an apartment building that housed multiple units, including the defendant's apartment.
The result we reach should not be understood as encouragement to conduct controlled buys without strict compliance with the investigatory steps set forth in Desper , supra . Instead, we recognize that it may not be possible in every case for the police to observe an informant's actual entry into the building in which the seller's housing unit is located.
The Supreme Judicial Court has "held repeatedly that a magistrate should rely on '[r]easonable inferences and common knowledge ... in determining probable cause.' "
Commonwealth
v.
Byfield
,
This is not a case in which the controlled buy was insufficient to establish a nexus between the defendant's drug activity and the target apartment. In
Commonwealth
v.
Pina
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.