COMMONWEALTH vs. FREDERICO RAMIREZ.

LIACOS, C.J. On January 9, 1989, a jury convicted the defendant of possession of cocaine with intent to distribute in violation of G. L. c. 94C, Section 32A (1992 ed.). On February 26, 1990, the defendant filed a motion for a new trial. The defendant based this motion on allegedly newly discovered evidence indicating that the search warrant that led to the seizure of the evidence introduced against him had been obtained unlawfully. Specifically, the defendant contended that a police officer deliberately relied on a fictitious informant to establish probable cause for the issuance of the warrant. On August 2, 1990, the defendant filed a motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), in order to inquire further into these allegations. [Note 1] A judge in the Superior Court issued an order denying both of these motions without a hearing. Before us are the consolidated appeals from the judge's order and from the defendant's conviction.

The underlying facts are these. [Note 2] On September 24, 1987, Detective Eduardo Dominguez of the drug control unit of the Boston police department applied for a warrant to search apartment no. 38 at 170 Parker Hill Street in the Roxbury section of Boston. In support of his application, Dominguez filed a sworn affidavit setting forth the following information which Dominguez claimed to have received from a confidential

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informant referred to as "IT". [Note 3] IT allegedly had been in apartment no. 38 "within the past two weeks and most recently within the past twenty four hours." IT knew the defendant to be the "occupant" of apartment no. 38. IT had observed the defendant sell a substance believed to be cocaine to numerous visitors. After IT reported this information to Dominguez, the affidavit added, Dominguez conducted a "covert surveillance" of apartment no. 38 and "observed an unusual amount of [traffic] enter and exit said apartment."

That same day a magistrate issued a warrant to search for cocaine and drug paraphernalia in apartment no. 38 and on the person of the defendant. Timely execution of the warrant led to the seizure of 235 grams of cocaine and a scale in apartment no. 38. On the person of the defendant, police seized thirteen plastic bags containing cocaine. This evidence led to the defendant's arrest and, later, to his indictment by a grand jury for trafficking in cocaine.

Prior to trial, the defendant moved to suppress the evidence seized and to compel disclosure of IT's identity. [Note 4] The judge held a hearing, in the course of which the defendant's trial counsel disputed the truth of the information contained in Dominguez's application. Counsel stated that the defendant was prepared to testify to the following facts: At the time of his arrest, the defendant and his family resided not in apartment no. 38 but at 126 Day Street in the Jamaica Plain section of Boston. The defendant was employed on a

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full-time basis with three separate employers, and he worked extraordinarily long hours. [Note 5] Apartment no. 38 was occupied by relatives of the defendant, whom he had visited on only a few occasions. On the day of his arrest, the defendant had found temporary refuge in apartment no. 38 following a marital dispute which had led his wife to request that he leave their home. [Note 6] Counsel argued that records of the defendant's employment could corroborate this testimony. Such records would strengthen the defendant's claim that, contrary to Dominguez's representations, he had not sold controlled substances out of apartment no. 38.

The judge expressed concern with counsel's allegations of police misconduct and proceeded to conduct an in camera interview of Dominguez. In response to the judge's questions, Dominguez stated that he had used IT's services for approximately one year prior to September of 1987. Dominguez testified that IT frequently reported to him on illegal drug transactions throughout the city. IT reported for the first time that drug activity took place in apartment no. 38 approximately three days before Dominguez obtained a search warrant for that apartment. IT named the defendant in connection with drug activity in apartment no. 38 and furnished a brief physical description of the defendant. After hearing Dominguez's testimony, the judge found that there "would be no compelling reason for the name of the informer to be

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disclosed to the defense." The judge also found that the information contained in Dominguez's affidavit established probable cause to support the issuance of the warrant to search apartment no. 38, and he denied the defendant's motion to suppress.

About eight months after the defendant's conviction, this court rendered its decision in Commonwealth v. Lewin, 405 Mass. 566 (1989). The court's opinion detailed egregious instances of perjurious and fraudulent conduct by officers of the drug control unit of the Boston police department, including the fabrication of a confidential informant as a means of obtaining search warrants in ostensible compliance with constitutional requirements. Id. at 582. [Note 7] This conclusion was based on sworn admission by police officers and investigatory work by defense counsel which revealed implausibly frequent reliance on a single informant during discrete periods of time. Following the release of the Lewin opinion, and based on his knowledge that Dominguez belonged to the same unit as the officers involved in that case, the defendant's appellate counsel undertook to investigate Dominguez's history of reliance on IT.

Counsel's careful investigatory work uncovered the issuance of seventy-one successful search warrants based on sworn applications in which Dominguez relied on information supplied by IT in a period spanning approximately two

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years. [Note 8] In his motion for a new trial, and later in his motion for a Franks hearing, the defendant argued that review of these sworn applications by Dominguez gave rise to strong inferences that IT was a fictitious informant. The defendant contended that there existed striking similarities in Dominguez's account of drug transactions reportedly observed by IT. The defendant argued that police corroboration of IT's observations was consistently minimal. [Note 9] The defendant argued that Dominguez relied on IT with suspiciously high frequency in discrete periods of time to obtain search warrants throughout the city. [Note 10] The defendant contended that, in light of the uniform representations that IT had observed drug activities in the premises to be searched within a few days before the search occurred, information supplied by IT had led to a suspiciously low number of contraband seizures. [Note 11] The defendant also noted that, contrary to Dominguez's testimony

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at the hearing on the pretrial motion to suppress, Dominguez began relying on IT as far back as December, 1985. The defendant argued that, in light of the fabrication and concealment of an informant made by Dominguez's colleagues in Lewin, he had presented enough evidence to warrant a new trial, or, in the alternative, an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Based on these facts, the defendant argues before us that the motion judge erred when he denied the posttrial motions. [Note 12] In our view, the crux of the defendant's grievance lies in the denial of his motion for a Franks hearing, not in the denial of the motion for a new trial. The new trial motion is based on the claim that Dominguez's credibility was a crucial issue at trial, and that the evidence discovered by counsel cast doubt on Dominguez's integrity. It is well established that "[n]ewly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial." Commonwealth v. Toney, 385 Mass. 575, 581 (1982). Based on our review of the record, we find no reason to disturb the judge's discretionary denial of the defendant's motion for a new trial in the present case. [Note 13]

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Because the defendant attacks the veracity of Dominguez's representations in the application for a warrant, the proper procedural route for his challenge is his motion for a Franks hearing. In Franks, supra at 155-156, the United States Supreme Court held that, "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment [to the United States Constitution] requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." See Commonwealth v. Amral, 407 Mass. 511, 519-520 (1990), quoting Franks, supra at 155-165; Commonwealth v. Douzanis, 384 Mass. 434, 437 (1981); Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 766 (1981). See also Commonwealth v. Reynolds, 374 Mass. 142 (1977). [Note 14]

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The theoretical underpinning of Franks is that the Fourth Amendment's protection against arbitrary governmental action would be eviscerated if the police did not make a truthful showing of probable cause. See United States v. Halsey, 257 F. Supp. 1002, 1005 (S.D.N.Y. 1966). Franks, however, also recognized that unfettered access to veracity hearings may lead to abuse of the process and may impose an undue burden on the traditional independence of magistrates. See People v. Lucente, 116 Ill. 2d 133, 151 (1987). The requirement of a "substantial preliminary showing" of intentional or reckless police misrepresentations accommodates these competing concerns by ensuring that spurious claims will "wash out at an early stage." Franks, supra at 170.

The Commonwealth contends that the defendant did not make such a substantial preliminary showing of police misconduct. In Franks, the Court did not undertake to define precisely the burden of proof which a defendant seeking a hearing should carry. [Note 15] The Court explained that the defendant must do more than present unsubstantiated allegations or express "a mere desire to cross-examine" the affiant. Id. at 171. See Commonwealth v. Ramos, 402 Mass. 209, 215-216 (1988); Commonwealth v. Douzanis, supra at 439. See also United States v. Figueroa, 750 F.2d 232, 237 (2d Cir. 1984); United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984). The Court also held that the defendant must prove a claim of perjury at the hearing by a preponderance of the evidence, thereby implying that the threshold requirement must be a lesser standard. Franks, supra at 156, 171-172. Thus, as the Supreme Court of Illinois has stated, "the precise standard lies somewhere between mere denials on the

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one hand and proof by a preponderance [of the evidence] on the other." Lucente, supra at 152. See Ramos, supra at 215 n.5.

It is not unprecedented for a criminal defendant seeking to meet the preliminary showing requirement of Franks to argue that similarities among search warrant applications previously filed by the affiant give rise to an inference of police misrepresentation. See United States v. Savides, 658 F. Supp. 1399 (N.D. Ill. 1987). See also Commonwealth v. Singer, 29 Mass. App. Ct. 708 (1991). In Savides, supra at 1403, the court refused to grant a hearing based on such a showing because it found that "sufficient differences existed between the prior affidavits and the one supporting the [challenged] search warrant to dispel[] any fear of fabrication." In addition, the court found, the similarity among the affidavits reflected standard investigative techniques rather than police misrepresentation. Id.

Unlike the Savides court, our review of the affidavits submitted by the defendant in the present case does not leave us without concern that IT was a fictitious informant. We reach this conclusion based on the cumulative strength of the inferences to be drawn from these affidavits evaluated in light of the instances of police misconduct which we detailed in Commonwealth v. Lewin, supra. [Note 16] In that case, the investigatory

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work of defense counsel uncovered thirty-one applications for search warrants in various parts of the city in which a police officer relied on a fictitious informant during a ten-month period. See id. at 582. Commenting on this evidence, the court expressed incredulity at the thought that an informant with such a broad range of knowledge -- whom the court called a "peripatetic savant of illicit drug activity in the city of Boston" -- would be genuine. Id.

The defendant's counsel in the present case also has uncovered suspiciously frequent reliance on a single informant throughout the city by a member of the drug control unit. The defendant also has shown discomforting similarities among the applications relying on this informant and an apparent conflict between these applications and Dominguez's testimony. See supra at. In light of Lewin, we cannot conclude with a sufficient degree of certainty that the defendant's showing merely indicates standard investigative techniques. Cf. Savides, supra. While Dominguez has admitted to no wrongdoing, [Note 17] and we do not intimate any view on the

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ultimate ability of the defendant to prove his allegations, we hold that the defendant has raised enough inferences of police misconduct to warrant further inquiry at a Franks hearing.

We believe that this conclusion strikes an appropriate balance between the need to deter violation of our citizens' constitutional rights and the danger that the process established to achieve this deterrence might be abused. See Franks, supra at 167. Courts have repeatedly underscored the difficulty inherent in challenging the truthfulness of an affidavit relying solely on a confidential informant. See, e.g., United States v. Brian, 507 F. Supp. 761 (D.R.I. 1981), aff'd sub nom. United States v. Southard, 700 F.2d 1 (1st Cir.), cert. denied sub nom. 454 U.S. 823 (1983); People v. Lucente, 116 Ill. 2d 133, 149 (1987); State v. Casal, 103 Wash. 2d 812 (1985). "When the informant is named in the affidavit, the defendant may investigate and interview the informant to determine the affiant's veracity. Where, however, the basis for the probable cause rests in the alleged `reliability' of a particular confidential informant and in statements attributed to a confidential informant, the defendant has no similar opportunity to investigate and to interview the informant as to the affiant's veracity (unless the informant's identity is disclosed). In such a situation, the defendant lacks access to the very information that Franks requires for a threshold showing." Commonwealth v. Amral, 407 Mass. 511, 520 (1990). [Note 18] Rejecting the defendant's showing in the present case would erect an insurmountable barrier in anonymous informant

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cases that effectively would nullify the intent of Franks to "provide meaningful, albeit limited, deterrence of and protection against perjurious warrant applications." Lucente, supra at 150. [Note 19]

We leave it to the sound discretion of the judge conducting the Franks hearing in the present case to decide whether to compel the disclosure of IT's identity. See Amral, supra at 518, and cases cited. However, we direct the trial judge to hold an in camera interrogation of IT at or prior to the hearing in order to determine this question. In Amral, supra at 522-523, we held that "the public interest in deterring police misconduct requires the trial judge to exercise his or her discretion to order an in camera hearing where the defendant by affidavit asserts facts which cast a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant . . . The purpose of the

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in camera hearing would be to enable the judge through interrogating the affiant, and, if necessary, the informant, to determine whether there is a substantial preliminary showing that the affiant has made false statements intentionally or recklessly. . . . If the showing is made, a Franks hearing is held at which point the judge may order disclosure." [Note 20]

In the present case, the defendant already has made the showing entitling him to a Franks hearing. However, without obtaining more information as to IT, the defendant may be deprived of the means to meet his burden of proof. See 2 W.R. LaFave, Search and Seizure Section 4.4 (d), at 201-203 (1987), and cases cited. In turn, the judge may have no concrete basis on which to decide whether to order disclosure of IT's identity. The rule of practice announced in Commonwealth v. Amral, 407 Mass. 511 (1990), is designed to help a defendant overcome the hardship of securing the preliminary information necessary to obtain a Franks hearing while protecting the government's privilege to keep its informants' identity confidential. See Amral, supra at 520.

The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.