COMMONWEALTH VS. JERRY L. SANTOS
SEARCH WARRANT WITH CONFIDENTIAL INFORMANT
On appeal from his conviction of unlawful possession of a firearm the defendant, Jerry L. Santos, argued that a judge was mistaken in denying his motion to suppress the evidence of the firearm, which was found during the execution of a search warrant. The defendant argued that the affidavit submitted in support of the application for a warrant failed to establish probable cause because it relied entirely upon information supplied by a confidential informant but did not demonstrate the informant’s veracity.
The affidavit was of State Police Trooper Steven Connolly, an officer with sixteen years of experience on the job, including numerous firearm related searches, seizures, and arrests. He and another trooper received information about a concealed firearm from a confidential informant. Trooper Connolly knew the “true identity” of the informant as a person who “handled both loaded and unloaded firearms in the past”. The affidavit stated that the informant provided another trooper and sergeant in 2008 with accurate information regarding the location of an illegally possessed and loaded 12-gauge shotgun concealed in Brockton, Massachusetts.
The affidavit added that the informant had seen the defendant place a silver revolver in the trunk of a 1996 red Acura Integra in a parking lot in Brockton. The informant was able to confirm, when shown a picture of the vehicle in question, that the Acura was indeed the vehicle in which the informant observed the defendant place the firearm. The affidavit also recited further information linking the defendant to the Acura.
Trooper Connolly’s affidavit added that the defendant owned the Acura but had registered it under a family member’s name. Trooper Connolly also noted that the defendant had a lengthy record of drug and other criminal charges. Additionally, neither anyone else living at the address, nor the registered owner of the Acura (the mother of Santos) possessed a license to carry a firearm of a firearm identification card. Also, Trooper Connelly stated that the parking lot where the alleged crime took place is considered to be a very high crime area.
When the search warrant was eventually executed, law enforcement found both the revolver and mail bearing the defendant’s name. A jury would later find the defendant guilty of unlawfully possessing a firearm.
The Massachusetts Court of Appeals was tasked with reviewing the affidavit on whether it established probable cause to support the search warrant. When an affidavit is based on a tip from a confidential informant, the prosecution must establish the informant’s basis of knowledge and his or her veracity. The defendant challenged whether the affidavit sufficiently established the informant’s veracity.
The defendant first argued that police knowledge of the informant’s “true identity” was insufficient to establishing veracity. The Court disagreed, arguing that prior rulings confirmed the contrary: that knowledge of an informant’s identity also can contribute to veracity (i.e. Commonwealth v. Cruz (2001) and Commonwealth v. Bakoian (1992)).
The defendant secondly argued that the tip regarding the shotgun from the 2008 case did not support the informant’s veracity because the affidavit did not indicate that the shotgun was illegally possessed or that its discovery led to an arrest or conviction. Again, the court disagreed affirming that the affidavit stated that the 2008 tip furnished “accurate information regarding the location [original emphasis] of an illegally possessed loaded 12 gauge shotgun that was concealed in Brockton”. The Court added that a determination of an informant’s veracity does not necessarily depend on a prior tip having led to an arrest or conviction.
Lastly, the Court made the case that any deficiency in the showing of veracity was counterbalanced by independent “police corroboration” of a nonobvious detail of the tip. The “nonobvious” detail in this case was the connection between the Acura and the defendant. The vehicle concededly not being in use further supported this—it was always parked in the same location in the parking lot.
The Court concluded that the affidavit sufficiently established veracity and any shortcoming in that regard was compensated for by corroboration of a nonobvious detail.
They ruled that the motion to suppress was correctly denied.
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Source: Commonwealth vs. Jerry L. Santos, 17-P-162