Commonwealth v. Carney , 7 Mass. App. Ct. 891 ( 1979 )

The defendant’s application for an interlocutory appeal under G. L. c. 278, § 28E, from the denial of his motion to suppress, was allowed by a Justice of the Supreme Judicial Court, and the appeal was transferred to this court pursuant to G. L. c. 211, § 4A, as amended through St. 1978, c. 478, § 100. The only question before us is the sufficiency of the affidavit supporting the application for a search warrant. The parties have divided the affidavit into three parts for the purposes of briefing and argument. The first and third parts concededly are insufficient to provide a basis for the magistrate’s necessary determination of probable cause. The second part, however, discloses information provided by an informant whose reliability is demonstrated by the reported experience with him of Boston police detectives and an agent of the "U.S. Drug Enforcement Agency.” The affidavit further discloses that the informant gave current information based on his personal observations concerning the presence of certain named drugs, and the trafficking in them, on the premises sought to be searched. See Commonwealth v. Misci, 358 Mass. 804 (1970); Commonwealth v. Norris, 6 Mass. App. Ct. 761, 766 (1978). The two-pronged test of Aguilar v. Texas, 378 U.S. 108, 114 (1964), for determining an informant’s credibility was satisfied. See Commonwealth v. Martin, 6 Mass. App. Ct. 624, 626-627 (1978). The third part of the affidavit described police surveillance of the premises and furnished corroboration of the informant’s statements. The affidavit provided probable cause for the issuance of the warrant. See Commonwealth v. Vynorius, 369 Mass. 17, 25-26 (1975). That an untrue but unimportant statement of fact was included in the third part by mistake does not affect the integrity of the affidavit. Commonwealth v. Piso, 5 Mass. App. Ct. 537, 543 (1977). Compare Franks v. Delaware, 438 U.S. 154 (1978).

Kevin P. Phillips for the defendant. Charles J. Hely, Assistant District Attorney, for the Commonwealth.

Order denying motion to suppress affirmed.