Opinion
No. 12–P–966.
2013-09-27
COMMONWEALTH v. Larry BLUE.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Larry Blue, was convicted by a jury of trafficking in twenty-eight grams or more of cocaine, trafficking in cocaine within 1,000 feet of a school zone, and various firearm offenses. He subsequently entered a plea of guilty to an indictment charging him with being an armed career criminal. Prior to trial, he filed three motions seeking suppression of evidence obtained by the police pursuant to what he alleges is an unlawful search warrant. The motions were denied in separate decisions by two Superior Court judges. On appeal, the defendant contends that his motions to suppress should have been allowed. He also argues that his firearm convictions should be reversed because the Massachusetts licensing scheme is unconstitutional. We affirm.
The defendant was acquitted of one count of possession of a firearm without a license.
Background. We summarize the facts, which are not contested. On December 19, 2008, Detective Michael M. Ross, a member of the Boston police drug control unit, applied for two warrants authorizing a search of the defendant's person and his residence, located at 41 Lawrence Avenue, Apt. no.1, in Boston. The detective submitted the same six page affidavit in support of both applications. The affidavit detailed the investigation and included information obtained from two confidential informants. The first informant, who was not named in the affidavit, told the detective that a black male with the street name “Blue,” who was between 5'09?–6'00 tall, weighed 240–260 pounds, and had dark hair, was selling large quantities of crack cocaine in the Grove Hall section of the city of Boston. This informant also informed the detective that Blue used a red Nissan Maxima with the registration number 144BH9 when making deliveries and lived somewhere on Lawrence Avenue. The informant also provided two telephone numbers (617–785–5618 and 857–212–4087) to contact Blue for the purpose of purchasing crack cocaine.
The detective then contacted another confidential informant, referred to as “H,” who previously had supplied reliable information that had led to arrests and the seizure of drugs, to assist in the investigation. Over the course of the following two months, the detective set up three controlled purchases of crack cocaine by H from Blue. The same procedure was followed on each occasion, and each purchase occurred at the Lawrence Avenue apartment. Members of the drug control unit searched H for contraband and money, and then had H place a telephone call to Blue to arrange for the purchase of crack cocaine. H was provided with money and was observed by officers as he entered 41 Lawrence Avenue, where he remained for about three minutes. Upon exiting, H gave the detective a substance which appeared to be crack cocaine. H, as reported in Detective Ross' affidavit, stated that he had gone to 41 Lawrence Avenue, rung the bell for apartment no.1, and was let into an apartment on the first floor where he met someone named Blue, who gave him crack cocaine in exchange for money.
The second controlled purchase of crack cocaine took place about a month later, and the third controlled purchase was conducted seventy-two hours before Detective Ross applied for the search warrants.
Detective Ross wrote in the affidavit that he had observed a black male exit 41 Lawrence Avenue and enter a red Nissan Maxima parked in the driveway with the registration number 144BH9 and that the defendant was the registered owner of this car. Detective Ross then obtained a photograph of the defendant and placed it in a photo array which he showed to H. H identified the defendant's photograph as the black male known to him as Blue, the person from whom he had bought crack cocaine. Detective Ross also confirmed that the defendant listed 41 Lawrence Avenue, Apt. no.1, as his mailing address on both his license and his car registration. Additionally, Detective Ross observed the red Nissan Maxima parked in the driveway of 41 Lawrence Avenue on numerous occasions at different times of the day.
The search warrants were issued on December 19, 2008, and were executed on December 26, 2008. The police found cocaine, firearms, and ammunition during the search. The defendant, who was at the residence at the time of the search, was arrested.
The defendant was indicted and subsequently filed three motions to suppress the evidence found in his apartment. In the first motion, the defendant alleged that the warrants were invalid because the affidavits submitted in support of the warrants had not been signed by the assistant clerk. This motion was denied following a nonevidentiary hearing. In his second motion, the defendant claimed that the search warrants were not supported by probable cause. This motion was denied following an evidentiary hearing conducted by a different judge. In his third motion the defendant argues that the affidavit failed to establish probable cause because the confidential informants were not reliable and the affidavit contained stale information. This motion was denied by the same judge who denied the second motion to suppress.
Because the defendant does not contest the judges' findings of fact, our review focuses on “the correctness of the judges' application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
1. The first motion to suppress. In a well-reasoned written memorandum of decision, the judge determined that the absence of a signature from the assistant clerk on the affidavits did not invalidate the search warrants where, as the judge found, the affidavits were attached to the applications for a search warrant and the applications, which were signed by the affiant (Detective Ross) and sworn and subscribed to before the assistant clerk as evidenced by the clerk's signature, incorporated the affidavits by reference. Furthermore, Detective Ross had signed the affidavits under the penalties of perjury. We agree with the judge's conclusion that in these circumstances the absence of the assistant clerk's signature on the affidavits was no more than a ministerial error that did not nullify the warrants. See Commonwealth v. Pellegrini, 405 Mass. 86, 88 (1989). Thus, the first motion to suppress was properly denied.
2. The second motion to suppress. As noted, the defendant also moved to suppress the fruits of the search on the ground that the affidavit failed to establish probable cause. This argument was properly rejected by the judge who, after reviewing the information set forth within the “four corners of the affidavit,” concluded that there was probable cause to believe that drugs or contraband would be found on the defendant's person and at his residence. Commonwealth v. Mendes, 463 Mass. 353, 364 (2012), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (affidavit accompanying an application for a search warrant established probable cause where informant's reliability was established through controlled purchases of narcotics). This motion was likewise properly denied.
3. The third motion to suppress. In the third motion to suppress, the defendant expanded upon his argument that the affidavit did not establish probably cause and contended that the reliability of the confidential informants had not been adequately established. He further contended that the search warrants contained stale information. Passing on whether the motion was timely filed, there is no merit to the defendant's assertions. As the Commonwealth noted in its brief, any weakness (of which there was none) with respect to the veracity or reliability of the confidential informants “was cured by the corroborative effect of the three controlled buys at [the same] location.” Commonwealth v. Velez, 77 Mass.App.Ct. 270, 273 (2010). Furthermore, we are not persuaded that the information was stale if only because the last controlled purchase of drugs occurred within seventy-two hours of the execution of the search warrant.
4. The firearms conviction. The defendant's claim that his firearm convictions must be reversed because (1) the Massachusetts firearm licensing statute unduly restricts his right to bear arms; and (2) the Commonwealth failed to prove that he did not have an FID card, does not require any discussion. These claims were rejected by the Supreme Judicial Court in Commonwealth v. Powell, 459 Mass. 572, 583–584, 590–591 (2011); Commonwealth v. Gouse, 461 Mass. 787, 799–802 (2012); and Commonwealth v. Jefferson, 461 Mass. 821, 834–835 (2012).
Judgments affirmed.