Commonwealth v. Nowells
Commonwealth v. Nowells
Opinion of the Court
This appeal presents the question whether unnamed informants’ independent tips, none of which alone would support a finding of probable cause to issue a search warrant, may collectively provide a sufficient basis for concluding that the informants were credible or that their information was reliable and thus justify the issuance of a search warrant under the standards of the Fourth Amendment to the Constitution of the United States. A judge of the Superior Court denied the defendant’s motion to suppress evidence obtained pursuant to a warrant issued in such circumstances. Thereafter another judge in a jury-waived trial found the defendant guilty of (1) the unauthorized possession of a shotgun with a barrel less than eighteen inches in length (G. L. c. 269, § 10 [c]), and (2) possession of marihuana with intent to distribute (second offense) (G. L. c. 94C, § 32C). The defendant was sentenced to serve a prison term on the indictment charging him with the unauthorized possession of the sawed-off shotgun. The indictment for possession of marihuana with intent to distribute was placed on file. We selected the case for direct appellate review. We conclude that the motion to suppress should have been allowed.
The only evidence presented on the motion to suppress was the warrant, the affidavit in support of the issuance of a warrant to search the defendant’s apartment, and the return. The significant portion of the affidavit consisted of tips from three undisclosed informants. It was sworn to on June 3, 1980, by an undercover narcotics officer of the Metropolitan District Commission police. With letters we have added at the beginning of each paragraph to identify each informant, the affidavit stated:
“[A] On or about May 10th, 1980, I was introduced to a party who stated that a[n] individual in Melrose by the name of Samuel H. Nowells of 307 Main Street has been for approximately two years and is now selling Cocaine and handguns out of that apartment. The informant knows this to be fact after having been in the apartment on some fifty (50) occasions and witnessing the guns and drug transac
“[B] On May 20, 1980,I stopped a motor vehicle that was operated by a party who had a name similar to Nowells. When I questioned him in error, the subject stated that he was not the party that was dealing the guns and drugs, that the party that I was interested in was ‘Nowells,’ and that he knew him, and that he knew that he had guns for sale and he kept them secreted in a panel in the walls of the apartment.
“[C] On Tuesday, June 3, 1980, I met with another informant who states that: On or about Thursday, May 27, 1980, the occupant of the apartment at 307 Main St., Melrose, Samuel H. Nowells, invited the informant inside the apartment. While in the apartment to get (turned on) with cocaine, the informant observed a dresser drawer with numerous handguns. The informant also saw a sawed-off shot gun under the bed and was shown by Samuel H. Nowells an automatic rifle described as a military M-16. It was at this time that Samuel H. Nowells attempted to sell the informant a handgun. The informant also stated that Nowells is extremely dangerous and may attempt to get to his weapons when approached by police.”
A separate analysis of the statements of each informant and what the balance of the affidavit says about each informant shows that there is no basis for concluding that the “veracity” prong of Aguilar v. Texas, 378 U.S. 108, 114 (1964), was met. There was no showing of “some of the underlying circumstances from which the officer concluded that [any] informant . . . was ‘credible’ or his information ‘reliable.’” Id. Except as the cumulative, reinforcing nature of the informants’ tips may provide the necessary support, there is no allegation in the affidavit that would corroborate the information supplied so as to support a finding of probable cause. See Illinois v. Gates, 462 U.S. 213, 243 (1983); Spinelli v. United States, 393 U.S. 410, 415 (1969).
The subject of mutually reinforcing informants’ tips has been considered by the Court of Appeals for the Fifth Circuit more than by any other court. That court has acknowledged that “where informers give tips that substantially corroborate each other that factor helps establish the reliability of the tips.” United States v. Martin, 615 F.2d 318, 326 (5th Cir. 1980) (corroboration “in close detail”). In most cases considered in that court, the informants’ tips were corroborated at least in part by independent investigation. Id. at 326. See Williams v. Maggio, 679 F.2d 381, 391 (5th Cir. 1982); United States v. Hyde, 574 F.2d 856, 863 (5th Cir. 1978) (detailed information of criminal conduct from ten informants agreed in many particulars; some information was verified by independent police investigation). Of the
We turn to an analysis of the affidavit submitted in support of the search warrant in this case. We shall refer to the informants as informants A, B, and C, as set forth in the lettered paragraphs of the affidavit quoted above. Informant A and informant C gave the name and address of the defendant. Informant B did not. Informant A referred to seeing handguns and drug transactions while in the apartment on many occasions. This statement adequately supplied the basis of his knowledge of the presence of handguns and drugs in the defendant’s apartment. Informant B provided no basis for his assertions concerning illegal sales of guns and drugs. Informant C said that he had been in the apartment and had seen numerous handguns, an automatic rifle, and a sawed-off shotgun. He made no reference to seeing drugs. Informant C, therefore, provided the basis of his knowledge of the presence of weapons at the defendant’s apartment.
None of the information provided by each informant itself provides a basis for concluding either that he was credi
The Commonwealth seeks to find support for the reliability of the information provided by informant C because informant C stated that he entered the defendant’s apartment “to get (turned on) with cocaine.” The Commonwealth argues that this was a statement against informant C’s penal interest and inherently provides his credibility. There is no doubt that an informant’s declaration against his penal interest is a factor that the magistrate may properly consider in determining probable cause. See Commonwealth v. Vynorius, 369 Mass. 17, 21 (1975); United States v. Harris, 403 U.S. 573, 583 (1971) (plurality opinion); 1 W. LaFave, Search and Seizure § 3.3, at 523 (1978). Of course, if the police do not know who the informant is, any statement against his penal interest cannot buttress his credibility. Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). See 1 W. LaFave, supra at 525-531. We shall assume, but it is not clear, that the affiant knew who informant C was. If an informant’s statement does not provide a ground for concluding he committed a crime, it is not a statement against his penal interest, does not “carry [its] own indicia of credibility” (United States v. Harris, supra at 583), and does not provide a basis for determining that his information is reliable. Informant C’s statement, that he was in the defendant’s apartment “to get (turned on) with cocaine,” does not indicate that he committed a crime. An informant who was interested in getting turned on with cocaine is not for that reason more credible than an informant who expressed no view on the subject.
We recognize that unnamed informants’ detailed statements corroborating each other in significant, detailed respects, particularly as to criminal conduct or as to the admission of serious wrongdoing by a person (see Williams v. Maggio, 679 F.2d 381, 391 [5th Cir. 1982]), could alone support a finding of probable cause by establishing the veracity of the informants. However, applying the principles we believe are appropriate under the decisions of the Supreme Court of the United States (see Commonwealth v. Upton, supra at 568-569), we conclude that the affidavit in this case does not provide that necessary corroboration. The search warrant was not issued on probable cause.
We have declined to anticipate the Supreme Court’s possible adoption of an exception to the exclusionary rule based on the reasonable, good faith conduct of the police in seeking and in executing a search warrant. See Commonwealth v. Sheppard, 387 Mass. 488, 507-508 (1982), cert. granted, 463 U.S. 1205 (1983). The question continues to be an open one, and until the Supreme Court concludes, if it ever does, that the exclusionary rule should not apply where particular conduct in violation of the Fourth Amendment was undertaken reasonably and in good faith, we shall not attempt to fashion such an exception for Federal constitutional purposes. That is not our proper function.
Even if we were to anticipate such an exception to the exclusionary rule, the circumstances of this case might not fall within the scope of such an exception. All that this record presents is the fact that the warrant was sought and obtained on what we have concluded was an inadequate showing of probable cause. It may be that the issuance of a warrant alone would be sufficient to fall within whatever exception to the exclusionary rule the Supreme Court might fashion, but perhaps more would be required to fit within
In any event, the issue of good faith, reasonable conduct was not presented to the trial court. We may not be subject to self-imposed restraints against considering such matters for the first time on appeal to the same degree that the Supreme Court concludes it is. See Illinois v. Gates, supra at 217-222. We, however, would not be inclined to pass on such an issue where factual determinations at the trial court level seem to be required, or at least where the defendant should have had sufficient notice of the claim so that the defendant could have offered evidence tending to show that the police officer who sought the warrant lacked a reasonable, good faith belief in the propriety of what he was doing. See Commonwealth v. Upton, supra at 575 (question of the existence of exigent circumstances justifying a warrantless search may not be raised for the first time on appeal).
The judgment on the charge of unauthorized possession of a shotgun with a barrel less than eighteen inches in length is reversed and the finding of guilt is set aside. The order denying the defendant’s motion to suppress is also vacated, and an order shall be entered allowing the motion to suppress.
Ordinarily, we do not consider appeals in cases placed on file. See Commonwealth v. Boone, 356 Mass. 85, 88 (1969). The defendant’s conviction of possession of marihuana with
So ordered.
Concurring Opinion
(concurring). The majority opinion of the court relies in part upon Commonwealth v. Upton, ante 562 (1983), in which I dissented. Here, I agree that the affidavit, taken as a whole, fails to provide probable cause for the issuance of the search warrant even under the more relaxed standard that I would apply.
Reference
- Full Case Name
- Commonwealth vs. Samuel H. Nowells
- Cited By
- 41 cases
- Status
- Published