Commonwealth v. Desper

Liacos, C.J.

(dissenting). I agree with the court that apart from an adequate description of a “controlled buy” the affidavit in this case failed to establish probable cause adequate to support a search warrant. This is so, because the reliability of the anonymous informant was not established either by the other recitations within the affidavit or by independent investigation by the police, sufficient to corroborate the informant’s information. I also agree with the court that a controlled purchase of narcotics, supervised by the police, may corroborate the reliability of an informant’s information sufficiently to satisfy the veracity element of the two-pronged test adopted by this court in Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). I do not, however, believe that the affidavit in this case demonstrated that there was a “controlled buy” as other cases have defined that term, essentially because there was no police supervision of the alleged “controlled buys.” Accordingly, I dissent.

The court concludes that the affidavit included no information from which it reasonably could be inferred that the informant was credible, that the anonymous telephone call to the police station did not corroborate the informant’s statements in the “significant detailed respects” required when an anonymous tip is relied on for this purpose, and that Detective Driscoll’s independent investigation yielded very little additional information competent to bolster the reliability of the informant’s tip. With all this, I agree. The issue, therefore, is whether the mere statement that the informant made two “controlled buys” from the defendants, without any description of how the police supervised the buy, can compensate for the affidavit’s otherwise deficient showing on the point of the informant’s veracity. The court believes that it can. I do not.

The court relies on Commonwealth v. Warren, 418 Mass. 86 (1994), in reaching its conclusion. What the court fails to acknowledge, however, is that the affidavit in Warren indicated that the police “made sure the informant had no drugs *174 or money before entering the building” to make the controlled buy. Id. at 90 . Thus, the affidavit in Warren demonstrated that there was police supervision of that purchase. In contrast, the affidavit in this case provides no indication at all that the police supervised the alleged “controlled buys.” We cannot determine from the affidavit whether the police searched the informant before or after the buy. We cannot determine whether the police provided the informant with marked bills to make the purchase. Indeed, we cannot know from the affidavit whether the police followed any of the steps customary in a controlled buy. In my view, if the court wishes to allow “controlled buys” to save otherwise deficient affidavits, it should at the very least require that the buys are in fact controlled.

A review of other Massachusetts cases relied upon by the court reveals that a mere statement that a “controlled buy” occurred has never been enough to save an affidavit that otherwise fails to show the informant’s veracity. See Commonwealth v. Luna, 410 Mass. 131 (1991) (where the affidavit in the record stated that police “checked [informant’s person before controlled buy] for any controlled substances, contraband, and monies,” furnished informant with money to make purchase, and recorded serial numbers of those bills); Commonwealth v. Tshudy, 34 Mass. App. Ct. 955, 956 (1993) (affidavit stated that police had searched informant before the controlled buy and found no drugs on his person, and that police gave informant money to make purchase); Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 838 (1989) (affidavit stated that police had searched informant before the controlled buy and found no narcotics or money on informant’s person, provided informant with money to make purchase, and observed informant enter and leave defendant’s apartment). See also United States v. Garcia, 983 F.2d 1160, 1166-1167 (1st Cir. 1993) (affidavit “fully described the ‘controlled buy,’ ” stating that police searched informant before and after buy and found no contraband on his person, gave informant a sum of United States currency to make purchase, and observed informant enter and exit building).

*175 I do not believe that a cursory, mention in an affidavit of a “controlled buy,” without any information to show that the police actually supervised the buy, can compensate for an affidavit’s otherwise deficient showing as to an informant’s veracity. At the very least, I would require that the affidavit provide some indication that the controlled buy was indeed controlled.

Not long ago, a distinguished Federal jurist, Senior Judge Hugh Bownes of the United States Court of Appeals for the First Circuit, gave a lecture at the Franklin Pierce Law Center in Concord, New Hampshire. Speaking of the interplay between the Fourth Amendment and the so-called “war on drugs,” Judge Bownes traced in detail decisions of the United States Supreme Court, and other Federal courts, dealing with claims of violations of Fourth Amendment rights arising from well-intentioned law enforcement efforts to eliminate the drug trade. Concluding that these extensive and expensive efforts had not produced the desired result, Judge Bownes suggested that perhaps a major casualty of that “war” were the protections afforded our citizens by the Fourth Amendment.

This court, interpreting art. 14 of the Declaration of Rights of the Massachusetts Constitution (the model for the Fourth Amendment), has stood fast to protect the rights of Massachusetts citizens. Commonwealth v. Upton, 394 Mass. 363 (1985), is but one of our many decisions illustrating this point. I am saddened that in this case the court signals a possible retreat from our high standards. It does so by engaging in speculative rumination about why the affiant, whom the court describes as an experienced police officer who “had been involved in hundreds of arrest [s] involving violations of [G. L. c. 94C, the Commonwealth’s controlled substances act],” ante at 164, did not know enough about controlled buys properly to describe one in his affidavit. The court’s ruminations are without basis in the record, contrary to the motion judge’s findings and, reluctantly I add, contrary to logic and experience.

I dissent.