Commonwealth v. DeJesus

Kantrowitz, J.

(concurring in part, dissenting in part).

I

I agree that observations made while securing the premises may not be included in the warrant application. Commonwealth v. Blake, 413 Mass. 823, 830 (1992). I further agree with the opinion’s central holding: the police, who possess probable cause to believe that evidence of criminal activity is present, and are in the process of securing a search warrant,1 may enter the apartment so long as they have a reasonable basis for concluding the evidence will be destroyed.

*538h

Here, two affidavits, totaling fourteen pages, accompanied the warrant application.2 One sentence concerned observations made while inside the apartment.3 By striking that single sentence,41 believe that probable cause still existed for the issuance of the warrant. As such, I respectfully disagree with the majority on this point.

The case law involving search warrants is well known. “The standard for issuing a search warrant is probable cause. . . . The law requires probable cause to believe that items sought are related to criminal activity under investigation and that the items may reasonably be expected to be located in the place to be searched” (citation omitted). Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 8-1 (2001). “[information in an affidavit supporting an application for a search warrant should be considered ‘in an ordinary, commonsense manner without hypertechnical analysis’ . . . .” Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991), quoting from Commonwealth v. Melendez, 407 Mass. 53, 60 (1990) (Greaney, J., dissenting).

After striking the one offensive sentence contained in the affidavit, we are left with the following. The defendant was arrested with two others, Graciano and Polanco, selling a significant quantity of cocaine. “It [is] reasonable to assume that drugs, drug paraphernalia, and money, the items specified in the warrant and seized, would be located in the residence of a person engaged in drug transactions.” Commonwealth v. Singer, 29 Mass. App. Ct. 708, 715 (1991). Graciano volunteered information, making statements against penal interest, admitting *539his participation in this and numerous past drug deals with DeJesus, whom he identified as his supplier. He further told the police that he met with DeJesus in front of Dejesus’s apartment, which he identified. It may be inferred that this is where Graciano received the drugs from his supplier. A confidential informant, whose reliability is questionable, told the police that there was a cocaine distribution operation at 7 Lynch Street, floor 3, Lawrence. Keys taken from DeJesus fit the outside door to 7 Lynch Street and an apartment on the third floor, which corroborated both the information received from Graciano that the defendant in fact lived in that location and the untested informant’s information that drugs were being dealt from there. “ independent police corroboration or mutual corroboration of multiple informants may compensate for deficiencies in the individual sources.” Commonwealth v. Russell, 46 Mass. App. Ct. 513, 517 (1999).

The question is this: after reading the affidavits in toto, did probable cause exist to conclude that cocaine “may reasonably be expected to be located in the place to be searched”? I believe that, while a close question, it did, and, as such, the warrant was properly issued.5

Typically the decision to secure, as here, is made at the outset. The police officer testified that it was his intent to secure the premises and then write the warrant application, which is precisely what he did. The majority finds it troublesome that a fellow officer was not, at the moment of the entry, traveling to the police station to start writing the warrant application, which the majority would presumably qualify as being “in the process of obtaining a warrant.” Ante at 526, 530. This level of court scrutiny needlessly micromanages police activity.

One of the affidavits concerned Graciano’s apartment; the other Dejesus’s.

“After entering the apartment to conductive [sic] sweep for occupants this officer immediately observed cocaine and cocaine packing equipment on the kitchen table.”

“When a portion of an affidavit in support of a search warrant application is determined to violate a constitutional, statutory, or common law requirement, the offending portion of the affidavit may not be considered in the determination of probable cause. . . . The offending material and any other portions tainted by the offending material must be excised or redacted from consideration by the judge or magistrate in reaching the probable cause determination.” Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-7 (2001).

“We note . . . that there was much less information regarding the informant’s tip in the affidavit ... on which the warrant issued than was produced at the suppression hearing . . . .” Commonwealth v. Hill, 51 Mass. App. Ct. 598, 611 n.12 (2001). I recognize that “the warrant must be supported solely by the affidavit, and evidence from the evidentiary hearing on a motion to suppress cannot be considered by a reviewing court.” Id.