Massachusetts Appeals Court Upholds Search Warrant Based on Defective Controlled Buy

The Massachusetts Appeals Court yesterday ruled that drugs seized pursuant to a search warrant will be admissible at the defendant’s trial, despite the fact that the controlled buy that led to the issuance of the search warrant was defective.  The name of the case is Commonwealth v. Monteiro. 

In November of 2015, a New Bedford police detective began working with a confidential informant (CI) who was a drug user.  The CI told the detective the defendant had sold him cocaine in the past when the CI would either call him ahead of time or simply show up at his apartment.  The CI said the defendant was continuing to actively sell cocaine.  The CI provided a physical description of the defendant and told the detective where the defendant lived.  The detective was able to confirm the defendant lived at the address identified by the informant, and that the defendant was on probation for committing a statutory rape.  The detective showed the defendant’s booking photo to the informant, who confirmed his identity.  The detective decided to administer a “controlled buy” with the CI and the defendant.  In the typical controlled buy, the detective meets the informant prior to the event and searches him to make sure he does not have any contraband on his person.  The detective then usually provides the informant with money to buy drugs from the target and watches the informant enter and leave the target’s home (or the location where the deal is scheduled to occur).  After the informant leaves after the transaction (and is seen leaving by the detective), he provides the drugs he purchased to the detective.  In this case, the detective did not watch the defendant walk into (or out of) the building housing the defendant’s apartment and there was no information in the detective’s warrant application concerning the number of apartments in the building.  Nevertheless, the informant provided cocaine to the detective and said he had purchased it from the defendant inside the defendant’s apartment.  As a result, the detective applied for a warrant to search the defendant’s apartment and a clerk magistrate authorized the warrant.  During the search, the cops found drugs and paraphernalia and the defendant was charged with trafficking in cocaine.

The defendant filed a motion to suppress, arguing the information contained in the detective’s affidavit in support of his application was insufficient to establish probable cause.  A superior court judge agreed and suppressed the drugs.  The Commonwealth appealed and the Appeals Court reversed.  The Court applied the familiar Aguilar-Spinelli test, which states that when a warrant application is based on information provided by a confidential informant, the government must establish: (1) the informant had a basis of knowledge for believing the defendant possesses contraband; and (2) the informant’s information is credible.  In this case, everyone agreed the informant had a basis of knowledge, given his representation that he had previously purchased cocaine from the defendant.  The question was whether the cops had verified the credibility of the informant’s story.  The credibility prong is often satisfied by the execution of a controlled buy, which is what happened in this case.  The Appeals Court needed to determine whether the informant’s veracity could be confirmed based on a single improperly-conducted controlled buy.  The Court concluded that the detective’s observation of the informant walking toward the apartment building was good enough to establish his credibility, even if the detective didn’t see him walk inside.  Accordingly, the affidavit properly established probable cause and the drugs found in the defendant’s apartment will be admissible against him at his upcoming trial.