More Than 100 Grams of Cocaine Discovered in New Bedford Apartment Suppressed Due to Faulty Search Warrant

The Massachusetts Appeals Court today upheld a superior court judge’s decision to suppress more than 100 grams of cocaine discovered during the execution of a search warrant at a New Bedford apartment, concluding that the warrant failed to establish probable cause to believe drugs would be discovered in the defendant’s home.  The name of the case is Commonwealth v. Ponte. 

The New Bedford Police Department received a tip that the defendant was selling cocaine out of his apartment.  The tip came from a confidential informant who was a customer of the defendant.  When people are arrested for possessing drugs, it is common for them to strike a deal with the cops – if the drug user discloses the identity of his dealer to the police and assists in the arrest of the dealer, the user won’t be charged with a crime.  While the opinion in this case does not specify that the informant had an open drug case, it’s fair to assume he wasn’t helping the cops out of the goodness of his heart.  In these situations, the police typically receive as much information as possible about the drug dealer, and then they have the informant conduct a “controlled buy,” which means the informant buys drugs from the dealer while the cops are watching.  Following the controlled buy, the cops obtain a search warrant, arrest the dealer, and search his home.  The police followed the normal procedure in this case.  The informant, an admitted drug user who had previously purchased cocaine from the defendant, provided the defendant’s name and address to the police.  The informant was able to describe the defendant’s physical appearance.  The police learned the defendant had been charged with crimes, including drug offenses, many times in the past.  The cops spoke to the building manager where the defendant lived and confirmed he was the resident of the apartment that was described by the informant.  Finally, the cops arranged for a controlled buy with the informant.  They gave the informant money, watched him walk into the defendant’s apartment building, and saw him emerge shortly thereafter with cocaine.  The cops then applied for a warrant to search the defendant’s apartment.  Inside was 109 grams of cocaine, thousands of dollars in cash, and all kinds of paraphernalia suggesting the defendant was operating a drug dealing business from his apartment.  The defendant was charged with trafficking in cocaine.

He filed a motion to suppress, arguing the search warrant application failed to establish probable cause that drugs would be found in his apartment.  A superior court judge agreed and suppressed the drugs.  The Commonwealth appealed and the Appeals Court affirmed.  The legal question was whether the Commonwealth had satisfied the Aguilar–Spinelli test, which states that when the police rely on information provided by a confidential informant, the Commonwealth must establish the informant’s basis of knowledge (how did the informant learn the information he passed along to the police?), and his veracity (why should the police believe the informant is credible?).  In this case, the informant’s basis of knowledge was his own interactions with the defendant, so that prong of the Aguilar–Spinelli test was satisfied.  Unfortunately for the Commonwealth, the Appeals Court ruled that it had not satisfied the veracity prong.  The informant did not have a track record of providing accurate information to the police.  While he provided specifics of the defendant’s drug dealing operation, the police were unable to independently confirm the details.  While the defendant had been charged with drug crimes, the search warrant application did not detail the results of those cases or when they had happened.  Nevertheless, even if the information provided by the informant was not sufficient on its own, these cases are usually saved by the controlled buy.  But in this case, the Appeals Court had a problem with the size of the defendant’s apartment complex.  While the cops watched the informant walk into the building, they did not confirm that he went into the defendant’s unit.  This is not usually required, but in this case, where the six-story building likely had a large number of units, it was impossible for the police to properly corroborate the information’s assertion that he obtained the cocaine from the defendant’s apartment.  Accordingly, the defendant’s motion to suppress was properly allowed and his case will now be dismissed unless the Supreme Judicial Court agrees to review it.

Because of the good work of the defense attorney in this case, the defendant will be spared the eight-year mandatory minimum sentence that would have been imposed if he had been convicted.