Home COMMONWEALTH vs. ROBERT T. KILEY & others.

11 Mass. App. Ct. 939

February 19, 1981

This is an appeal by the Commonwealth from a pretrial order by a District Court judge suppressing the fruits of a search of a dwelling executed pursuant to a warrant. See G. L. c. 278, Section 28E, inserted by St. 1979, c. 344, Section 45; Mass.R.Crim.P. 15(a)(2), 378 Mass. 882 (1979). The order was based on the judge's conclusion that the affidavit presented in support of the application for the warrant did not measure up to the requirements of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). The affidavit, sworn out by a police detective, detailed ten tips by anonymous informants spanning a period from July 28, 1977, to May 14, 1979, the day the warrant was issued (six of the tips were received within five weeks of May 14), and five instances of police investigation, three of which resulted in observations having some tendency to corroborate details contained in one or more of the tips. See Draper v. United States, 358 U.S. 307 (1959); Commonwealth v. Vynorius, 369 Mass. 17 , 20 (1973); compare Commonwealth v. Kaufman, 381 Mass. 301 , 302-303 (1980). See Commonwealth v. Lotfy, 8 Mass. App. Ct. 126 , 127-128 (1979). The gist of all the tips was that the defendants were engaged in the sale of controlled substances and were using the Kiley dwelling either as a cache for their wares or as a place for making sales or both. We think that the affidavit could be judged sufficient solely on the basis of the tip received on an unspecified day "during the first half of May, 1979"; the information then supplied contained such detail of the interior of the Kiley dwelling and the hiding place of the contraband therein as to bespeak personal knowledge of the informant (see United States v. Spach, 518 F.2d 866, 870 [7th Cir. 1975]; Commonwealth v. Brown, 354 Mass. 337 , 346 [1968]; Commonwealth v. Genest, 371 Mass. 834 , 837 [1977]), and the informant's reliability was evidenced by portions of his narrative which constituted an admission against penal interest (see Commonwealth v. Vynorius, supra at 21, and cases cited) when read in a common sense fashion. (The judge was overly technical in reasoning that the informant's admission of having purchased marihuana from the Kileys did not evidence criminality on his part, because he had not stated that he came into possession of his purchase, the relevant statutes [G. L. c. 94C, Sections 32 and 34] prohibiting possession and sale but not purchase.) The reliability of another informant could be inferred from the recital that tips from him had led to the recovery of contraband at an earlier time. See Commonwealth v. Avery, 365 Mass. 59 , 63 (1974). Information from others of the informants had previously led to arrests for drug offenses. See Commonwealth v. Flaherty, 6 Mass. App. Ct. 876 (1978). The judge was doubtless correct in concluding that some of the tips, viewed in isolation, would not have supported the issuance of

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a search warrant. But if anything is clear in this area of the law, it is that an affidavit offered in support of a warrant is not to be parsed and its severed components subjected to hypercritical analysis; rather, the affidavit is to be read as a whole, and "in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108 (1965). Commonwealth v. Anderson, 362 Mass. 74 , 75 (1972). Those tips whose ability to stand on their own was subject to doubt gained force from other tips which corroborated their assertions (see Commonwealth v. Kaufman, 381 Mass. at 303) and which were in turn corroborated in part by independent police observations. The affidavit, taken as a whole, made a strong (perhaps very strong) showing of probable cause that controlled substances were presently in the Kiley house ("for sale and . . . waiting for customers," in the words of the May 14, 1979, tip). The order allowing the defendant's motion to suppress evidence is reversed, and the case is remanded to the District Court for further proceedings.

So ordered.