Commonwealth v. Reyes

Greanby, J.

(dissenting, with whom Lynch and Fried, JL, join). There has been a failure to apply certain fundamental *574principles to the examination of the affidavit. These principles are as follows. A warrant issues on a showing of probable cause, a much less rigorous requirement than that posed by proof beyond a reasonable doubt. Accordingly, “a certain leeway or leniency [is always granted] in the after-the-fact review of the sufficiency of applications for warrants,” Commonwealth v. Corradino, 368 Mass. 411, 416 (1975), and that review necessarily must take into account the substantial role of reasonable inferences and common knowledge in deciding whether an assertion has been shown to a probability. Commonwealth v. Alessio, 377 Mass. 76, 82 (1979). Courts, therefore, “should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner .... [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109 (1965). Critically, “[t]he sufficiency of the affidavit is to be decided on the basis of a consideration of all its allegations as a whole, and not by first dissecting it and then subjecting each resulting fragment to a hypertechnical test of its sufficiency standing alone.” Commonwealth v. Stewart, 358 Mass. 747, 751 (1971).

This affidavit, considered as a whole, and with fairness, is sufficient. The informant’s basis of knowledge is clearly satisfied by observation of two to three kilograms of cocaine in the defendant’s apartment which would be subject to sale at a price estimated between $300,000 and $400,000.

The remaining issue is a simple one — does the affidavit disclose a reasonable basis to support the reliability of the informant’s report? The police verified that the defendant rented the apartment where the cocaine had been seen, and the police knew from personal observations that the defendant dealt drugs from his late model Caprice classic automobile with another identified Hispanic man. The white Blazer, which was to make the substantial delivery of cocaine to the defendant, was seen exactly where it was said to be, in the back of the apartment building where the defendant lived; the New York registration plate number matched that of the Blazer; and the Blazer was registered to a known Hispanic male (Jose R. Rodriquez), who (based on a police check of his criminal records) likely carried a loaded handgun, a protection usually considered prudent by any large scale *575cocaine dealer. The defendant was also linked to a third cocaine dealer (Diego Mejia) who had engaged in cocaine distribution with Rodriquez. The independent information and corroboration gathered by the police thoroughly supported the informant, and provided sufficient indication of the defendant’s involvement with cocaine distribution so that the magistrate issuing the warrant reasonably could conclude “that he [was] relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. 410, 416 (1969).

Considered on a commonsense basis, this would appear a situation in which the police had probable cause to believe that the defendant was dealing in large amounts of unlawful drugs, on a regular basis, based on the police officers’ own observations and the reasonable inferences that could be drawn from the defendant’s association with others involved in the illicit drug trade. A reasonable person could conclude that the police may well have been waiting to arrest the defendant (again), until such time as they had cause to believe that he was in possession of a considerable quantity of cocaine (brought in from New York) commensurate with the scope of the defendant’s activities. The informant’s tip merely established the time at which such an arrest and the accompanying search should occur.

The experienced Superior Court judge appears to have so concluded, and I would affirm his denial of the motion to suppress. This result is consistent with what the court stated in Commonwealth v. Upton, 394 Mass. 363, 374 (1985): “We conclude . . . that the principles [of Aguilar-Spinelli], if not applied hypertechnically, provide a more appropriate structure for probable cause inquiries under art. 14.” The search of the apartment uncovered a treasure trove of cocaine, money, and drug distribution equipment which, to list and identify item by item, would add pages to this separate opinion.1 The defendant validly confessed to his ownership of *576the cocaine and to his role as a cocaine distributor. I would affirm the judgment convicting the defendant of trafficking in large quantities of cocaine.

The illegal substances and other paraphernalia and items taken during the search are genetically described in the one-page-retum filed after the search. The Commonwealth’s brief spends eight and one-half pages particularly describing the magnitude of the items devoted to the drug enterprise.