Commonwealth v. Ponte  invlolves an affidavit in support of application for search warrant, and the veracity of confidential informant (CI) referred to in the application.  The Court of Appeals affirmed the lower court’s allowance of the defendant’s motion to suppress. It ruled that “in the circumstances of a controlled buy of drugs, police observation of a confidential  informant entering and exiting a large multi-unit building containing a large number of individual apartments on multiple floors, without more, does not sufficiently corroborate the informant’s veracity” under the Aguilar-Spinelli reliability test.

The basic facts are as follows. Police Detective Barbosa prepared a search warrant application and supporting affidavit seeking permission to search 280 Acushnet Avenue, apartment 2F, in New Bedford.  Barbosa’s affidavit indicated that “the police had received information from an identifiable CI who had personally purchased cocaine from a ‘Joe Ponte’ at apartment 2F in the past…. The affidavit did not contain any information about the CI’s track record…. The CI described the process of purchasing drugs from the defendant as follows…. The defendant would ‘buzz’ the CI into 280 Acushnet Avenue and the CI would take the elevator to the second floor. The CI would got to apartment 2F. The CI would knock and the defendant would open the door.”  Barbosa’s affidavit also indicated that “the defendant’s board of probation records showed twenty-nine adult arraignments, which included narcotics offenses…. The affidavit did not describe the dispositions of any of these offenses. The police arranged a controlled buy using the CI.” “The CI was searched by the police and given money to make the buy. The police watched the CI enter 280 Acushnet Avenue through the front entrance…. The police met with the CI after the buy and retrieved the substance cocaine that the CI said he or she]had purchased from the defendant at apartment 2F.”

On the basis of Barbosa’s affidavit, a search warrant was issued; during the ensuing search “the police seized 109 grams of cocaine …, $3,866 in cash,” drug paraphernalia, and records in the defendant’s name. The defendant filed a motion to suppress the seized items, arguing “that the controlled buy was insufficient [to establish the CI’s veracity,] as the police only saw the [CI] enter and exit the apartment building and did not observe him or her approach or enter apartment 2F.” The motion was allowed and the Commonwealth filed an interlocutory appeal.

The Court of Appelas noted that “the corroborative value of a controlled buy and the adequacy of police supervision of that buy lessens when the number of
apartments in a mult-iunit building increases.” “In buildings containing only a few apartments, a reasonable inference could be made that the CI in fact purchased drugs from the apartment unit in question. However, “‘the police are not required to risk disclosure of their surveillance by observing the apartment in a small …apartment building that an informant … enters in the course of executing a controlled buy.” Therefore, “the inference that the CI purchased the drugs from the target apartment becomes attenuated in the case of a large apartment building…. Here, we do not know how many units were in 280 Acushnet Avenue, nor how feasible it would have been for the police to observe the CI more closely.” It was inferable that the building had “six apartments on each floor (F being the sixth letter in the alphabet) for a total of thirty-six units in the building…. Therefore, more information was needed to determine whether the CI purchased the drugs from the defendant in the target apartment or elsewhere.” An “affidavit must contain sufficient details than were provided with respect to the attendant circumstances surrounding the controlled buy — i.e., the layout of the building, … where the defendant stored the drugs in the apartment, and the feasibility (or unfeasibility) of observing the CI enter a particular apartment (and not another apartment) to conduct the controlled buy — in order to justify a conclusion that the CI in fact purchased drugs from the apartment unit the CI named.” Barbosa’s “affidavit lacked sufficient detail about the supervision of the controlled buy.” “The affidavit was devoid of any indication of the extent to which closer observation of the actual drug purchase in the controlled buy would have been feasible or if, conversely, it could not have occurred without compromising the safety of the officers or the investigation.”