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12-P-1378 Appeals Court

COMMONWEALTH vs. CARLOS MANUEL PEREZ.

No. 12-P-1378.

Middlesex. December 8, 2014. - April 15, 2015.

Present: Kafker, Grainger, & Agnes, JJ.

Controlled Substances. Practice, Criminal, Required finding, 

Instructions to jury, Motion to suppress, Warrant, 

Affidavit, New trial. Constitutional Law, Search and 

seizure. Search and Seizure, Warrant, Affidavit, Probable 

cause.

Complaint received and sworn to in the Lowell Division of 

the District Court Department on April 26, 2010. 

A pretrial motion to suppress evidence was heard by Martine 

Carroll, J.; the case was tried before Laurence D. Pierce, J.;

and motions for a new trial and for other postconviction relief 

were heard by him.

Jeffrey G. Harris for the defendant.

Matthew Bailey for the Commonwealth.

GRAINGER, J. The defendant was charged with possession of 

cocaine with intent to distribute. He was convicted by a jury 

in the District Court of the lesser included offense of 

possession of a class B substance, G. L. c. 94C, § 34. He 
2

appeals, asserting insufficiency of the evidence, error in the 

jury instructions, and error in the denial of his motion to

suppress evidence and his motion for a new trial or a hearing 

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). His claims 

of reversible error are primarily dependent on the issuance and 

execution of a so-called "no-knock" warrant that produced the 

evidence resulting in his conviction. We address ancillary 

claims before considering the issuance of the warrant, referring 

to the undisputed facts as they are pertinent to the issues.

Sufficiency. The defendant argues that the Commonwealth 

failed to demonstrate the requisite knowledge coupled with 

intent to exercise control that would support a conviction for 

constructive possession of the cocaine found in his bedroom. We 

disagree. The jury received evidence that the defendant was the 

only person in his bedroom when the police executed the search 

warrant. The police found cocaine in a glassine bag in the 

pocket of a man's shirt hanging in the defendant's bedroom 

closet. In the defendant's bedroom the police found a bottle of 

boric acid, sandwich bags, a digital scale, $422 in cash, a 

Massachusetts identification card bearing the defendant's name 

and picture, a Venezuelan passport bearing the defendant's name 

and a picture closely resembling the defendant, and a billing 

receipt addressed to the defendant at that apartment.
3

The defendant's argument that the absence of paraphernalia 

for personal use renders the conviction reversible ignores the 

fact that he was charged with intent to distribute. The absence 

of paraphernalia supports the distribution charge, and thereby 

also supports his conviction for a lesser included offense under 

these circumstances.1 In any event, the absence of paraphernalia

is irrelevant to the offense of simple possession. See 

Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 325-326 (2010) 

(evidence that goes to intent "does not defeat a determination 

of constructive possession").

Jury instructions. The defendant asserts error in the 

trial judge's failure to track the model jury instruction's 

language providing that "[n]either is possession proved simply 

because the defendant was associated with . . . the property 

where [the cocaine] was found." Instruction 3.220 of the 

Criminal Model Jury Instructions for Use in the District Court 

(2009). The judge's charge included the admonition that "merely 

being present in the vicinity of crack cocaine, even if one 

knows that it is there, does not amount to possession." He 

instructed the jury that possession is to be determined "from 

all the facts and any reasonable inferences that you can draw 

from those facts." And he correctly defined "possession without 

 

1 The defendant and the Commonwealth both requested that the 

judge instruct the jury on the lesser included offense of simple 

possession.
4

physical custody" as requiring "knowledge of the object, the 

ability to exercise control over that object either directly or 

through another person, and the intent to exercise control over 

the object." We conclude from our review of the instructions, 

considered in their entirety, that the jury were properly 

instructed on the elements of constructive possession. See 

Commonwealth v. Torres, 420 Mass. 479, 484-485 (1995).2 There 

was no error. 

Motion to suppress evidence. The defendant asserts that 

the evidence used to convict him was seized pursuant to a search 

warrant that failed to meet the veracity test derived from the 

requirements set forth in Aguilar v. Texas, 378 U.S. 108 (1964),

and Spinelli v. United States, 393 U.S. 410 (1969). See 

Commonwealth v. Upton, 394 Mass. 363, 369 (1985).3 He argues 

that the veracity test was not met because the search warrant 

application was submitted by an officer who did not have 

firsthand knowledge of the identity and whereabouts of the 

confidential informant on whose information the warrant 

 

2 The transcript does not allow us to determine whether this 

claim was preserved at trial:

"The court: Is the defendant content?

"(Remainder of sidebar discussion is completely 

inaudible.)"

3 The defendant does not contest the "basis of knowledge" 

test. See Commonwealth v. Forbes, 85 Mass. App. Ct. 168, 173 

(2014) (quotation omitted).
5

application was based. The defendant relies on Commonwealth v. 

Alfonso A., 438 Mass. 372, 376 & n.4 (2003), where the Supreme 

Judicial Court determined that the motion to suppress physical 

evidence was properly denied by the motion judge notwithstanding 

the fact that "the affidavit did not spell out precisely how the 

detective knew the informant's 'identity' and 'whereabouts.'" 

The court ruled in that case that the lack of specificity on 

these factors "does not detract from the unmistakable import of 

the detective's sworn statement, i.e., that the detective felt 

confident that he could indeed identify and locate the 

informant." Ibid. In this case, the detective indicated that 

the informant's particulars were known to other members of the 

Lowell police department. Accordingly, as in Alfonso A., he 

could clearly "identify and locate the informant" should the 

need arise.

The information provided in the affidavit contained a level 

of specificity that indicated the informant's veracity, 

Commonwealth v. Atchue, 393 Mass. 343, 348-349 (1984), and 

included facts that were confirmed by the police prior to the 

application. Commonwealth v. Alfonso A., supra at 376-378. 

Finally, the controlled purchases conducted by the informant 

further supported his veracity. Commonwealth v. Desper, 419 

Mass. 163, 168-171 (1994).
6

"No-knock" warrant. The defendant asserts that the noknock warrant was improperly authorized, requiring suppression 

of the evidence seized after the police failed to knock and 

announce their presence. The affidavit supporting the warrant 

contained the following representations: 1) the extensive 

training and experience in drug investigations, controlled 

purchases and arrests of the officer who made the affidavit, 2) 

the confidential informant's report that the apartment for which 

a warrant was sought was "small, confined and private," 3) the 

confidential informant's report that the defendant "keeps his 

door locked and admits only people whom he knows," 4) the fact 

that the defendant sold drugs to the informant only after 

arrangements were made by telephone, and 5) the officer's 

assessment that, given the retail nature of the defendant's 

operation and the fragile nature of the illegal drugs involved, 

"it would not be difficult for [the defendant] to destroy the 

narcotics if given the forewarning."

The requirement that police knock and announce their 

presence is based on common law principles aimed at protecting 

privacy, decreasing the potential for violence and preventing 

unnecessary damage. Commonwealth v. Scalise, 387 Mass. 413, 417 

(1982). Our cases also recognize that competing interests will 

justify abrogating the requirement in individual instances. 

These are, principally, avoiding the destruction of evidence and 
7

increasing officer safety. See Commonwealth v. Cundriff, 382 

Mass. 137, 147 (1980), cert. denied, 451 U.S. 973 (1981); 

Commonwealth v. Silva, 440 Mass. 772, 783 (2004). Further, 

courts will look to the presence of lookouts and the ability of 

police to approach premises undetected in determining whether a 

no-knock warrant is justified. See Commonwealth v. Benlien, 27 

Mass. App. Ct. 834, 836 (1989); Commonwealth v. West, 55 Mass. 

App. Ct. 467, 470 (2002).

In this case, the overriding consideration presented in the 

warrant application was the potential for destruction of 

evidence. The fragile nature of the drugs, the limited size of 

the premises, and the security precautions exercised by the 

defendant all emphasize that concern. Officer safety was not

presented as an issue. 

Our cases recognize that destruction of evidence is a 

factor to be considered, but we require more than a general 

concern that evidence can be easily destroyed to dispense with 

the requirement for police to knock and announce. Scalise, 

supra at 421 (declining to adopt "blanket rule" excusing 

requirement of knock and announce "whenever the objects named in 

the search warrant are by their nature amenable to ready 

disposal or destruction"). See Commonwealth v. Ortega, 441 

Mass. 170, 176 (2004). 
8

While the warrant application in this case contains 

statements that drugs in powder form are easy to destroy or 

discard,

4 it fails to provide "probable cause to believe that the 

evidence will be destroyed, based on other factors uniquely 

present in the particular circumstances." Scalise, supra at 

421. We consider the specific references to the fact that the 

"apartment was small, private and confined" and that the 

defendant keeps the door locked, admitting only individuals whom 

he knows, to be relevant, but ultimately insufficient. The 

limited size of the premises is as likely to aid the police in 

securing the evidence of criminality as to enable its disposal 

"during the short delay occasioned by the knock and announce 

requirement." Commonwealth v. Macias, 429 Mass. 698, 702 

(1999). As described in the application, the defendant's 

 

4 The relevant attestation in the warrant application, 

states: "During my training and experience as a Police Officer,

I have learned that individuals involved in the illicit 

distribution of narcotics often attempt to destroy drug evidence 

if they learn that the police are about to conduct a search. 

Because of the fragile nature of Illegal Drugs they are easily

destroyed by such methods as flushing them down toilets, 

dissolving them in liquid and emptying containers of baggies in 

which they are packaged. I have personally been involved in 

arrests of drug dealers who have thrown drugs out of windows, 

and swallowed the drugs upon being approached by the police. 

Due to the information received that [the defendant] is a retail 

or street level dealer, it would not be difficult for him to 

destroy the narcotics if given the forewarning. Further, due to 

the fact that Cocaine is a powder drug, it is particularly 

susceptible to being quickly destroyed. For these reasons, I 

respectfully request authorization to execute the search warrant 

without first knocking and announcing our presence and purpose." 
9

security measures are equally likely to be precautions against 

robbery, and do not provide probable cause that he would bar the 

door to police who announce their presence. See id. at 703 

(window overlooking street, which could allow defendant to "spot 

the police coming," without more, did not establish probable 

cause); Commonwealth v. Santiago, 452 Mass. 573, 577-578 (2008) 

("mere assertion that the owner of a residence to be searched 

owns a dog, even of a breed commonly known to be aggressive, 

would, standing alone, be insufficient to meet the probable 

cause standard").

We therefore consider whether the evidence seized by the 

police must be suppressed as a result of the failure to knock 

and announce their presence in this case. "[A]s a general rule, 

the mere fact that an unlawful search and seizure has occurred 

should not automatically result in the exclusion of any 

illegally seized evidence." Commonwealth v. Gomes, 408 Mass. 

43, 46 (1990) (applying general rule "to violation of the 'noknock' rule"). See Commonwealth v. Sheppard, 394 Mass. 381, 391 

(1985); Commonwealth v. Rutkowski, 406 Mass. 673, 676 n.5 

(1990). Two factors govern the result: 1) "the degree to which 

the violation undermined the . . . governing rule of law," and 

2) the extent to which exclusion will serve as a deterrent in 

the future. Commonwealth v. Gomes, supra. These two factors are 

interdependent to the extent that (even where constitutional
10

rather than, as here, common law principles are implicated),

"[b]ad faith of the police . . . will be relevant in assessing 

the severity of any constitutional violation." Commonwealth v. 

O'Connor, 406 Mass. 112, 118 (1989).5,6 

Applying these principles to the present circumstances, we 

conclude that suppression is not warranted. The police did not 

act unilaterally; they properly applied for a warrant, requested

a no-knock provision and submitted an affidavit setting forth 

all the available and relevant facts known to them.

7 While we 

conclude as a matter of law that they did not ultimately provide 

sufficient basis for the issuance of the warrant in that form, 

the police did not act in bad faith, and the defendant makes no 

such claim. Having obtained the warrant, they observed its 

strictures. See Commonwealth v. Grimshaw, 413 Mass. 73, 79-80 

(1992) (suppression unwarranted in case of nighttime search 

authorization where police acted "lawfully in obtaining the 

 

5 See Commonwealth v. Hernandez, 456 Mass. 528, 533 (2010)

(while not adopting Federal approach relying exclusively on 

application of "good faith" test, Massachusetts will instead 

focus "on whether the violations are substantial and 

prejudicial").

6 See 1 LaFave, Search & Seizure § 1.3(a), at 69-71 & 

§ 1.3(f), at 90 n.66 (5th ed. 2012); Grasso & McEvoy, 

Suppression Matters Under Massachusetts Law § 9-2[i][2], at 9-14 

(2013-2014 ed.).

7 See, e.g., Commonwealth v. Manni, 398 Mass. 741, 742-743 

(1986) (failure to state facts supporting no-knock warrant may 

lead to suppression of evidence). 
11

warrant and, except as to time, had engaged in no misconduct in 

executing it"). Contrast Commonwealth v. Gomes, 408 Mass. at 47

(suppression warranted where officer who prepared affidavit "had 

actual knowledge that [it] contained no particularized facts 

which would have shown probable cause"). Under these particular 

circumstances and given the detailed nature of the application, 

we find not only an absence of any police misconduct but also no 

indication that the pertinent rule of law was undermined. 

Motion for new trial and for a "Franks" hearing. The 

defendant asserts error in the judge's denial of his motion for 

a new trial and, as a precursor, to conduct a hearing pursuant 

to Franks v. Delaware, 438 U.S. 154 (1978). After the 

defendant's conviction, it was revealed that one of the officers 

involved in the execution of the search warrant was under 

investigation for misconduct in the use of informants, and that 

the Commonwealth had nol prossed other cases as a result.

In response to the defendant's subpoena, the judge required 

the Commonwealth to provide an affidavit stating whether the 

informant in this case was the same as any informant used by the 

Commonwealth in the cases that had been nol prossed. The 

Commonwealth provided an affidavit that there was no evidence of 

any overlap. In denying the defendant's request for further 

discovery and for a Franks hearing, the judge found that there 

was "no additional information linking the investigation and 
12

subsequent prosecution of the defendant" to the officer in 

question. A Franks hearing is held to test the veracity of the 

affiant, and the officer who provided the affidavit in this case 

was not the officer implicated in the investigations raised by 

the defendant in his motion. See Commonwealth v. Wadlington, 

467 Mass. 192, 203 (2014). See also Commonwealth v. Amral, 407 

Mass. 511, 519 n.8 (1990). Here, there was no error, and there 

was no abuse of discretion in the denial of the Franks motion or 

of the motion for new trial. See id. at 518; Commonwealth v. 

Caban, 48 Mass. App. Ct. 179, 181 (1999).

Judgment affirmed.

Order denying motion for new

 trial affirmed.