October 26, 2009
- Steven Topazio wrote this April 27, 2014 at 9:54 am
The defendant was arrested after Massachusetts State Police executed a search warrant for his home which alleged, among other things, that the police received information from a confidential informant that the defendant was selling Cocaine from his home. During the execution of the warrant, the police found a large sum of money, cocaine, a firearm and ammunition. The defendant, who was facing mandatory jail time, hired Attorney Topazio to defend him. Attorney Topazio filed a Motion to Suppress along with a Memorandum of Law attacking the legality of the search warrant, knowing that if the search was unconstitutional, then the evidence would be excluded and the Commonwealth would have no case. Attorney Topazio argued that where information from a confidential informant is relied upon to supply probable cause to obtain a search warrant, Article 14 of the Massachusetts Declaration of Rights requires that the affidavit apprise the magistrate (who decides whether to issue the search warrant) of sufficient facts and circumstances to establish both: “(1) the basis of the informant’s knowledge, and (2) the credibility of the informant or the reliability of his information. Commonwealth v. O’Day, 440 Mass. 296, 301 (2003); Commonwealth v. Upton, 394 Mass. 363 (1985); Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). In Massachusetts, the first prong, or the “basis of knowledge test,” may be satisfied by evidence that “the informant had personally purchased drugs from the defendant.” Such “direct knowledge” maybe inferred where the level of detail in the informant’s tip regarding the identity of the seller and the drug-selling operation is “consistent with personal observation, not mere recitation of a casual rumor.” The second prong, or the “veracity test,” is commonly satisfied by reference in the affidavit to such factors as: the informant’s successful track record of providing information to the police; the ability of the police to locate and contact the informant despite his/her anonymity in the affidavit; and the informant’s recitation of “precise,” “unique” and “predictive” detail. Today, Attorney Topazio convinced the District Attorney to place the trafficking charge on file, dismiss the school zone charge, and to accept a 2 year suspended sentence on the firearm’s charge, and the Court agreed.