COMMONWEALTH vs. STEPHEN BRZEZINSKI.

LIACOS, C.J. The defendant was convicted in a jury-waived trial of trafficking in cocaine in violation of G. L. c. 94C, Section 32E (b) (1) (1986 ed.). The Appeals Court (in an unpublished memorandum and order under Appeals Court Rule 1:28) affirmed the conviction. 26 Mass. App. Ct. 1104 (1988). We granted the defendant's application for further appellate review. The defendant claims that the trial judge and motion judge erred in numerous respects. We affirm the conviction.

We shall make reference to the relevant facts in the appropriate sections of the opinion.

1. The motion judge did not err in denying the defendant's motion to dismiss the indictment charging trafficking in cocaine under G. L. c. 94C, Section 32E (b) (1). [Note 1] "Our review of the propriety of any indictment is limited to determining whether the grand jury received sufficient evidence to find probable cause for arrest." Commonwealth v. McGahee, 393 Mass. 743, 746-747 (1985). Commonwealth v. O'Dell, 392 Mass. 445, 450-451 (1984). In order to meet this standard, the grand jury must be presented with "reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed . . . an offense[.]" Commonwealth v. DeCologero, 19 Mass. App. Ct. 956, 957 (1985), quoting Commonwealth v. O'Dell, supra at 450.

There was sufficient evidence to warrant the grand jury in indicting the defendant for trafficking in cocaine. The arresting officer, Detective Frederick Borges, testified before the grand jury that, on entering the defendant's apartment, pursuant to a search warrant, he observed five people including the defendant

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sitting around a coffee table on which lay two packets of a substance suspected to be cocaine. The defendant got up and ran to the back of the apartment, entered a closet, came out again, and had to be subdued. In the closet, the police officers found a triple beam scale with a large amount of a substance suspected to be cocaine. Behind a stereo amplifier in the hallway police found a plastic bag, approximately four inches wide and three inches long, about half-filled with a substance suspected to be cocaine. The police also found test tubes, used for testing the quality of cocaine, and tubes used for snorting cocaine. Borges testified that approximately fifty-two grams of cocaine were found in the apartment. Approximately $1,000 in cash was also found in the apartment. The police officers also found telephone and cable television bills addressed to the defendant at that address. In short, there was ample trustworthy information to warrant a reasonable person's conclusion that the defendant had committed the offense of trafficking in cocaine in violation of G. L. c. 94C, Section 32E (b) (1).

2. The defendant asserts that the informant who provided information leading to the issuance of a search warrant improperly acted as an agent of the police.

According to an affidavit signed by Detective Borges, and dated November 1, 1984, the informant had entered the defendant's apartment and observed, among other things, the defendant breaking down and packaging cocaine. [Note 2] The search warrant,

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which was issued on November 1, and based upon this affidavit, was not executed.

On November 14, 1984, Borges signed an affidavit identical to the previous one except for the following additional paragraph: "On November 1, 1984, the undersigned did obtain a Search Warrant for 37 So. Sixth Street from the Third District Court. This warrant was not executed due to a change in the activities of Stephen Brzezinski and due to the informant not being able to satisfy [the undersigned] that the cocaine was still in the apartment. During the week of November 11, 1984, the informant did state that Stephen Brzezinski did get a new supply of cocaine and that the informant did see known cocaine dealers coming and going from the first floor South side apartment. The informant further stated that during the week of November 11, 1984, the informant was in Stephen Brzezinski's apartment and the informant did observe plastic bags which contained white substances in which Stephen Brzezinski told the informant that it was in fact cocaine."

After the hearing on the defendant's motion to exclude the cocaine and cocaine paraphernalia which were found during the search of the defendant's apartment, the motion judge found that "Detective Borges spoke with the informant sometime prior to November 14, 1984, concerning the activities of Stephen Brzezinski. They discussed the possibility of the informant going back into the apartment to get further information. . . . On the basis of information obtained during the informant's visit to Brzezinski's apartment sometime prior to November 14, 1984, and on the basis of the informant's statement that he saw known cocaine dealers coming and going from the apartment, Borges filed a new affidavit and obtained a search warrant on November 14, 1984."

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The motion judge also found that the informant had not acted as an agent of the police: "In the case at bar, there is no evidence that Detective Borges initially recruited the informant and directed him/her to visit the Brzezinski residence. Apparently the informant initiated contact with Borges and gave him the information that formed the basis of the affidavit for the November 1, 1984, search warrant. The evidence also shows that subsequent to November 1, 1984, the informant told Borges that Brzezinski no longer had cocaine at his premises. Apparently there was a discussion at that time concerning the informant visiting Brzezinski's apartment in the near future and keeping Borges informed as to any changes regarding the presence of cocaine. There is no evidence that Borges directed the informant to return or that he initiated the discussion concerning a return visit. Since Borges did not participate in or direct the informant's actions, no constitutional analysis is triggered."

"An individual's actions will not be attributed to the State if no promises are made for that individual's help and if nothing was offered to or asked of that individual." Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987). In Rancourt, we held that the motion judge did not err in concluding that no agency relationship had been established, despite the officer's having initially received information from an informant who was a fellow inmate of the defendant. The officer had told the informant "that if he obtained any other information and wanted to relay that information, he should telephone or write to the district attorney's office." Id. at 273. We can perceive no greater police involvement in this case than that which occurred in Rancourt.

The motion judge's finding that Detective Borges did not direct the informant to return to the apartment is supported by the record. "The . . . judge, not this court, has the function of determining the credibility of testimony." Commonwealth v. Rancourt, supra at 273 n.4. Further, there is testimony in the record that no consideration was offered or given to the informant. See Commonwealth v. Rodwell, 394 Mass. 694, 698 (1985).

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In short, because the contact between Detective Borges and the informant did not reach the level of an agency relationship, the informant's entry into the defendant's apartment was not subject to constitutional limitations. See Herbert v. State, 10 Md. App. 279 (1970); People v. Sellars, 93 Ill. App. 3d 744 (1981). [Note 3]

3. The defendant contends that the motion judge should have granted his motion to exclude items seized pursuant to the warrant because there was a material falsehood in the affidavit.

The affidavit stated that the anonymous informant "has proven to be relieable [sic] in the past by supplying informantion [sic] in the past which has led to the arrest and convictions of persons for narcotic drug violations." At a pretrial hearing, [Note 4] Detective Borges was questioned by defense counsel about the information in the affidavit. At this time, Borges revealed that the informant had not provided information leading to any person's conviction. Defense counsel did not inquire into Borges's state of mind at the time he signed the affidavit. The defendant argued before the motion judge that, under Franks v. Delaware, 438 U.S. 154 (1978), the statement that there were convictions should be struck, and that therefore, under Commonwealth v. Upton, 394 Mass. 363 (1985), the affidavit failed to establish probable cause.

The motion judge refused to exclude the evidence, holding that the affidavit established probable cause. In his findings, the motion judge stated: "The statement contained in the affidavit that information from the informant in the past had led to arrest and conviction of persons for narcotic violations is not accurate. Detective Borges testified that, in fact, there had

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been arrests but no convictions." The motion judge held that the two-part "Aguilar-Spinelli" test, see Commonwealth v. Upton, supra -- requiring a showing of the informant's "basis of knowledge" and of his or her veracity -- was satisfied in this case. The judge held: "As to the second prong, the informant had given the police information which led to the arrest of several people. This is adequate support for a finding that the veracity prong of the two-part test has been met. That the affidavit incorrectly states this information led to both arrests and convictions is not fatal. However, this court is concerned with this imprecise procedure and strongly suggests that it be corrected in the future." The judge made no finding as to the affiant's state of mind at the time he signed the affidavit.

The defendant now contends that, in light of Commonwealth v. Rojas, 403 Mass. 483 (1988), which was decided after the defendant's conviction, the information in the affidavit, when considered without the reference to convictions, is insufficient to satisfy the veracity prong of the Aguilar-Spinelli test. Rojas held that, "[a] naked assertion that in the past the informant had provided information which led to a prior arrest is insufficient by itself to establish an informant's veracity." Commonwealth v. Rojas, supra at 486.

We agree that should the affidavit's reference to convictions be struck, the affidavit would fail to establish probable cause. But in order to strike any false statements from the affidavit, the defendant has the burden of showing by a preponderance of the evidence that the statement was made "knowingly and intentionally, or with reckless disregard for the truth." Franks v. Delaware, 438 U.S. 154, 155-156 (1978). See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 769 (1981). A negligent misrepresentation by the affiant would not warrant a redaction of the false statement. See Franks v. Delaware, supra at 170; Commonwealth v. Nine Hundred & Ninety-two Dollars, supra at 771. See also Commonwealth v. Honneus, 390 Mass. 136, 142-143 (1983).

The motion judge below made no finding as to the state of mind of the affiant. Defense counsel, with the affiant before him at the hearing, failed to take advantage of the opportunity

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to inquire into the affiant's state of mind. Further, the defendant did not request the motion judge to make a finding as to the affiant's state of mind. We agree with the motion judge that false statements of the sort we encounter here, whether negligent, reckless, or intentional, should be prevented in the future. We do not, however, feel that the defendant should be permitted to pursue this line of questioning at another Franks hearing when he had every opportunity to do so before he was convicted. See Commonwealth v. Tabor, 376 Mass. 811, 823 n.18 (1978).

4. We reject the defendant's contention that the motion judge should have compelled the disclosure of the informant's identity. "The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth. . . . That privilege serves a substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity. The privilege, which is not absolute, should be respected as far as reasonably possible consistent with fairness to a defendant." (Citations omitted.) Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981). Roviaro v. United States, 353 U.S. 53 (1957).

The informant did not participate in the crime charged, and was not present during the execution of the search warrant or seizure of the cocaine and cocaine paraphernalia. United States v. Bourbon, 819 F.2d 856, 860 (8th Cir. 1987). The informant in this case acted only as a "tipster." "It is well settled that the government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged." United States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir.), cert. denied, 439 U.S. 847 (1978). See United States v. Bourbon, supra; United States v. Skramstad, 649 F.2d 1259, 1265 (8th Cir. 1981). On balance, we think the Commonwealth's interest in maintaining the confidentiality of the informant outweighed the defendant's interest in disclosure.

5. The defendant claims that the trial judge should have excluded certain items seized at the defendant's apartment but purportedly not listed in the return's inventory. The defendant

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does not specifically identify these items but refers us generally to eight pages of the trial transcript. A fair reading of those pages and of the inventory reveals that every item objected to by the defendant does indeed appear in the inventory. [Note 5] We thus do not address the question whether the failure to include an item in a return's inventory requires exclusion at trial. See United States v. Dauphinee, 538 F.2d 1 (1st Cir. 1976).

6. The defendant argues that the evidence presented at trial was insufficient to establish possession and control of the drugs found in his apartment. We conclude that, viewing the evidence in a light most favorable to the prosecution, Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 499 (1984), the trial judge was warranted in finding that the defendant was guilty of trafficking in cocaine.

"Possession implies `control and power,' . . . exclusive or joint . . . , or, in the case of `constructive possession,' knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Rosa, supra at 498, quoting Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980). "Proof of possession of a controlled substance may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). While presence in an area where contraband is found "alone cannot show the requisite knowledge,

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power, or intention to exercise control over the [contraband], . . . presence, supplemented by other incriminating evidence, `will serve to tip the scale in favor of sufficiency.' Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). In this case, the scale is tipped.

Not only was the defendant present in the apartment at the time the contraband was found, but the apartment was rented to him and his girl friend. See Commonwealth v. Rosa, supra at 499. The defendant's retreat into the closet containing cocaine and cocaine paraphernalia allowed an inference of consciousness of guilt. Commonwealth v. LaPerle, supra at 427. Furthermore, a search of the defendant revealed $450 inside the defendant's underwear between his buttocks and over $100 in his pants pocket. In addition, there was evidence of packets of cocaine on the living room table in plain view of the defendant, a triple beam scale with cocaine on the top in the closet to which the defendant ran, a bag of cocaine behind a stereo amplifier, test tubes used for testing the quality of cocaine, tubes used for snorting cocaine, devices used to sift cocaine, and books on cocaine. There was no error.

Judgment affirmed.