For purposes of this memorandum, the defendant will rely on the facts set forth in the affidavit of Officer Warrant Burke of the Weymouth Police Department, which was filed in support of his application of a search warrant on December 18, 1998. The relevant portions of that affidavit are as follows:
On or about the weekend of December 18, 1998, this officer received a call from a source, who I will hereinafter refer to as Jimbo, and using the male name Jimbo does not necessarily mean that Jimbo is a male, who stated that he was aware of a major drug distribution network, selling both heroin and cocaine, involving 3 Dominican males.
Jimbo went on to say that these Dominican males were operating out of an apartment in Weymouth and that they just use the apartment to sell drugs. Jimbo told this officer that the apartment is located at 605 Broad St., Weymouth, Apartment #9. Jimbo stated that you go into the main lobby and ring the buzzer to #9 and that you are buzzed in. Jimbo says next that you go through the security door and then the fire door, then take a right on the hallway and that Apartment 9 is the second door on your right. Jimbo states that he has seen all three Dominicans, knows one by the name of Christian, and that Christian is reported to have been shot in the eye in the past, during drug activity. He described the others [as] just being of Hispanic origin. Jimbo stated that he has seen large quantities of cocaine, wrapped in plastic baggies and he has seen heroin in glassine containers with the inscription of Death Wish. Jimbo stated that the bags of cocaine were a lot heftier than your normal Dominican street bag. Jimbo went on to say that he has seen one of the Dominicans in the possession of a pearl handled firearm and that the Dominican keeps this gun in his waist band. Jimbo also states that he has seen large amounts of cash in the apartment. Jimbo went on to say that these Dominicans used a light blue foreign station wagon with a square type back bearing MA registration 2296DI, and that they, the Dominicans, use this motor vehicle to make deliveries of controlled substances and to bring the heroin and cocaine to the apartment located at 605 Broad St., Weymouth, Apt. 9. This officer asked Jimbo if he would be willing to make controlled buys at the apartment and he agreed to.
On or about the weekend of December 13, 1998, this officer met with Jimbo. This officer then searched Jimbo and relieved him of any cash that he may have had. This officer then also searched Jimbo for any contraband and found him to be free from any drugs and any other paraphernalia. If it Jimbo was to use any conveyance, this officer will also check this conveyance for monies and or drugs and remove same if any found. This officer next provided Jimbo with a specified quantity of U.S. currency and told Jimbo to purchase a specified quantity of the cocaine from Apartment # 9, 605 Broad St., Weymouth, MA. Det. Scott Harrington, Weymouth Police, was present and assisted with this search and investigation with Jimbo. This officer and Harrington followed Jimbo to 605 Broad St. and observed Jimbo ring the buzzer and gain entry into the building. Approximately 1 minute later Jimbo came out of the building and he was followed back to a prearranged meeting spot where he handed this officer a quantity of white powder in plastic bags that was consistent to the quantity that would be purchased with the amount of funds that he was given [] by this officer. Jimbo stated that when he left that he observed a large quantity of cocaine in excess of a pound still in the apartment.
On or about Thursday, December 17, 1998, this officer and Det. Harrington again met with Jimbo, and again went through the exact same procedure that we went through in the previous paragraph and with the same results. When we received the white powder back from Jimbo I field tested it and found that it proved positive for cocaine. Jimbo went on to say that the Dominican that made this sale was armed with this pearl handled firearm. Jimbo went on to say that the only furniture in the apartment was a weight bench, couch, and television. Jimbo stated that at this time observed at least 50 bags of white powder and at least 500 bags of what he believed to be heroin in packages marked Death Wish.
On Wednesday, December 16, 1998, this officer was in the vicinity of 605 Broad St. and had an occasion to observe two Hispanic males come out of the rear door, with one of them carrying a green trash bag tied in a certain way and throw this bag into the dumpster. Both these males got into this 1991 blue Honda Civic station wagon. Bearing MA registration 2296DI. I followed this vehicle into Hingham and then into Hull. This vehicle made several different movements showing an attempt to see if it was being followed. This officer fearing that I would be detected stopped following it. This officer went back and found the green trash bag that was thrown into the dumpster and brought it to the station and examined it. I knew it was the bag because of its color, and it was the only bag in the dumpster that was tied in this fashion. Upon examination I found that it contained several days of takeout items from restaurants, Chinese, Burger King and the like. No other trash except a spent role of toilet paper was found.
The blue Honda station wagon was listed to a Angel Santiago DOB 02-19-71, from 4090 Washington St., Roslindale. No other information could be acquired from that name other than another motor vehicle listed to it and a valid MA license. Through the investigation I found that the apartment was in[] the name of Jose Rodriguez and this officer could not ascertain who this person was.
Based upon the information supplied by Jimbo, the controlled by is made by Jim Volk, my training and experience, my observations, and the knowledge that I have acquired in the past six months after having arrested as many as 10 Dominicans that have used false names, in order to hide their identity, because they are wanted for other committed crimes, in this country illegally, from being deported previously for committing serious offenses in the past, it is my belief that 605 Broad St., Weymouth, MA, Apt. #9 is being used to store heroin and cocaine illegally, and that the three aforementioned Dominicans are distributing this heroine and cocaine. It is also my belief based upon the information supplied by Jimbo that these Dominicans are using firearms to protect these illegal controlled substances and protect the funds they receive from this illegal act. This officer requests a no knock warrant for officer safety and a safe entry into the apartment for all involved.
A search warrant issued out of the Quincy District Court on that same day. According to a police report filed by Detective Burke, as well as his grand jury testimony, officers of the Weymouth Police Department and Massachusetts State Police executed the warrant shortly after 5:41 p.m. As they entered the apartment, a bag containing sixty-nine bags of cocaine fell from the defendant's lap as he arose from a chair. Other contraband, paraphernalia, and currency were found in the search that followed.
I. The Defendant Is Entitled To A Franks Hearing Where, According To The Search Warrant Affidavit, The Information That Triggered The Investigation And Controlled Purchases Was Not Received Until After The Controlled Purchases Had Been Made And After The Investigation Was Complete
On its face, the affidavit submitted in support of the search warrant contains a serious flaw-one that calls into question the validity of the information contained therein. Specifically, the affiant describes how he received information from “Jimbo”, how he set up two controlled purchases as a result of the information provided, and how he corroborated at least some of that information. According to the affidavit, the controlled purchases took place on December 13 and 17, and the officer's observations took place on December 16. Curiously, however, the affidavit states that the affiant did not receive information from “Jimbo” until December 18, the date of the warrant application. Taken at face value, the information set forth in the affidavit makes little sense. If the initial information from “Jimbo” was not received until December 18, the events described on the three earlier dates could not have taken place. Unless the affiant can show that the discrepancy was merely a typographical error, the chronology raises serious questions as to when or whether the earlier events took place. At the very least, the defendant is entitled to a hearing to determine the cause of the discrepancy.
Ordinarily, a defendant seeking to suppress evidence seized pursuant to a search warrant is confined to the “four corners” of the affidavit. In some circumstances, however, a defendant may challenge the truthfulness of statements made by the affiant. Franks v. Delaware, 438 U.S. 154, 171 (1978). See Commonwealth v. Reynolds, 374 Mass. 142 (1977); Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 37-38 (2002); Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 594 (2002).
To warrant a Franks hearing, a defendant must make a two-part showing. First, the defendant must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit. Franks v. Delaware, 438 U.S. at 155-156. Commonwealth v. Youngworth, 55 Mass. App. Ct. at 37-38. A substantial showing “'lies somewhere between mere denials on the one hand and proof by a preponderance [of the evidence] on the other.'” Commonwealth v. Ramirez, 416 Mass. 41, 49-50 (1993), quoting People v. Lucente, 506 N.E.2d 1269, 1277 (Ill. 1987). Second, the defendant must show that the challenged material is necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. at 155-156; Commonwealth v. Alcantara, 53 Mass. App. Ct. at 594. “Upon meeting both requirements, the defendant is entitled to an evidentiary hearing.” Commonwealth v. Alcantara, 53 Mass. App. Ct. at 594.
In this case, if the affiant received his initial call from “Jimbo” on December 18, as the affidavit states, the subsequent description of the events of December 13, 16, and 17 could not be true. At the very least, the description of the events on those dates would have to be viewed as reckless. Contrast Commonwealth v. Alvarez, 422 Mass. 198, 208 (1996) (minor inadvertent misstatement in affidavit was "a far cry from recklessness.").
Further, the two controlled purchases on the 13th and 17th, as well as the observations made on the 16th, were essential to a showing of probable cause. See Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366, 369 (2001). The affiant does not suggest that “Jimbo” had provided accurate information in the past, nor does the affidavit point to any information establishing his veracity or reliability. See Spinelli v. United States, 393 U.S. 410, 415 (1969); Commonwealth v. Parapar, 404 Mass. 319, 322 (1989); Commonwealth v. Rojas, 403 Mass. 483, 486 (1988). Even if the affidavit, with the offending portions removed, would have established probable cause for the issuance of a warrant, if the record shows that the affiant deliberately included falsehoods in the affidavit, he is entitled to suppression of the fruits of the search. The Supreme Judicial Court has held that redaction may not be a sufficient remedy where the affiant deliberately misleads the magistrate. “Perhaps the protections of art. 14 of the Declaration of Rights . . . can be assured only through a rule that denies admissibility of all evidence obtained following deliberate misrepresentations made under oath to a magistrate by a law enforcement officer.” Commonwealth v. Nine Hundred and Ninety-Two Dollars, 383 Mass. 764, 768 (1981). See Commonwealth v. Pratt, 407 Mass. 647, 658 n.12 (1990) (leaving open whether the remedy for inclusion of false information is excision of the false material or denial of admissibility of all evidence obtained pursuant to the resulting warrant). Compare Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986) (deliberate misrepresentation of the truth may justify dismissal of an indictment).
At the very least, the affiant should be required to appear and explain the sequence of events in detail, which should include providing this court with all records relating to the controlled purchases. A Franks hearing is warranted in these circumstances.
II. To The Extent That The Magistrate May Have Relied On The Affiant's Descriptions Of Behaviors Attributed To People Of Dominican Descent In Determining Probable Cause, The Warrant Is Fatally Flawed
As noted above, in the last paragraph of the affidavit, the affiant asks the reviewing magistrate to find probable cause based not just on the events he described, but on “the knowledge that I have acquired in the past six months after having arrested as many as 10 Dominicans that have used false names, in order to hide their identity, because they are wanted for other committed crimes, in this country illegally, from being deported previously for committing serious offenses in the past[.]” In effect, the affiant invited the magistrate to base his determination of probable cause, at least in part, on blatant ethnic stereotyping. Where the magistrate may very well have relied to some extent on the affiant's description of behaviors attributed to people of Dominican descent, the finding of probable cause is fatally flawed. The defendant is entitled to suppression of the fruits of the unlawful search.
The courts of this Commonwealth have found the use of racial or ethnic stereotyping to establish probable cause to be unconstitutional. Commonwealth v. Gonsalves, 429 Mass. 658, 670 (1999) (Ireland, J., concurring). See United States v. One Lot of U.S. Currency Totalling $14,665, 33 F.Supp.2d 47, 49 (D.Mass., 1998) (“The government's showing of probable cause is completely inadequate, based on a troubling mix of baseless generalizations, leaps of logic or worse, blatant ethnic stereotyping.”). Compare Commonwealth v. Graziano, 368 Mass. 325, 331-333 (1975), ("appeal to popular ethnic stereotypes went beyond permissible limits").
In this case, the affiant's description of illicit behaviors he observed in other people of Dominican descent “could serve no purpose other than to influence the [magistrate] to resolve doubts against the defendant because he was a member of a foreign and, thereby, suspect people.” Commonwealth v. Lara, 39 Mass. App. Ct. 546, 551-552 (1995) (“What the ethnic background of the defendant was, and whether he was a member of a Spanish-speaking drug ring of Dominican background filled in no missing aspect of the crime charged.”). The blatant ethnic stereotyping set forth in the affidavit violated the defendant's state and federal constitutional rights. He is entitled to suppression of the fruits of the resulting search.
III. The Defendant Is Entitled To Suppression Of The Fruits Of The Search Where The Affidavit Failed To Establish Probable Cause Justifying The Issuance Of A No-Knock Warrant
“The requirement that police 'knock and announce' their presence and purpose prior to the execution of a search warrant has long been a part of our common law.” Commonwealth v. Jimenez, 438 Mass. 213, 215 (2002). See Commonwealth v. Macias, 429 Mass. 698, 700 (1999). See Commonwealth v. Antwine, 417 Mass. 637, 638 (1994); Commonwealth v. Scalise, 387 Mass. 413, 418 n. 5 (1982). “It has also been incorporated into the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches.” Id. at 216, citing Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (common-law knock and announce principle is “element of the reasonableness inquiry under the Fourth Amendment”). “'Among the purposes of this rule are the protection of individual privacy interests and the desire to minimize the potential for violence or property damage.'” Id., quoting Commonwealth v. Macias, 429 Mass. at 701. There are, however, limited circumstances where an unannounced entry is appropriate. Id. To authorize such an anticipatory warrant, the affiant must demonstrate probable cause to believe that the suspect might otherwise escape, destroy evidence, or threaten the safety of the executing officers or the public. Id. In this case, the affiant failed to make the required showing. The defendant is entitled to suppression of the fruits of the unlawful search.
There is no information in the challenged affidavit suggesting that the occupants of the target apartment presented a risk of escape. Moreover, the affiant did not identify the possible destruction of evidence as a reason for the issuance of a no-knock warrant, and indeed, the facts would not support an unannounced entry to prevent the destruction of evidence. See Commonwealth v. Macias, 429 Mass. at 703 (given multiple storage places and substantial quantities of packaged drugs, it was unreasonable to believe that a few seconds delay would have allowed suspects to destroy any substantial amount of the drugs).
The affiant does identify the potential threat of violence as a reason for the no-knock warrant, but his showing on that point failed to justify an unannounced entry. See Commonwealth v. Jimenez, 438 Mass. at 218-220. He expresses his belief “that these Dominicans are using firearms to protect these illegal controlled substances and protect the funds they receive from this illegal act.” However, at best, the information from “Jimbo” indicates that he observed only one of the three men with a gun. Without more, the recent possession of a firearm does not justify a forcible entry. See People v. Krueger, 675 N.E.2d 604, 609-610 (Ill. 1996) (recent possession of firearm does not automatically justify unannounced entry). In this case, there is no information suggesting that any of the suspects had violent propensities or that there were other circumstances creating any particular danger. See United States v. Jewell, 60 F.3d 20, 24 (1st Cir. 1995) (defendant's history of violent behavior and presence of pit bull justified unannounced entry). The affiant failed to establish probable cause to believe that the circumstances presented a threat to the officers' safety. The evidence seized from the apartment should be suppressed. Commonwealth v. Jimenez, 438 Mass. at 222.
IV. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that he be granted a Franks hearing and/or that his motion to suppress be allowed.
Respectfully submitted,
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By his attorney,