Because we conclude that the stop and threshold inquiry did not satisfy those standards, we do not reach the second part of the two-part analysis in "stop and frisk" situations: whether the scope of the frisk, or the degree of its intrusiveness, was reasonable in the circumstances. See Commonwealth v. Silva, 366 Mass. at 405; Commonwealth v. Berment, 39 Mass. App. Ct. 522, 526 n. 6 (1995). When police suspicion arises not from officers' own observations but from an informant's tip, as here, the Commonwealth has the burden of establishing both the informant's reliability and the basis of her knowledge, although police corroboration may make up for deficiencies in one or both of those factors.
"Where the police rely on a police radio call to conduct an investigatory stop, under both Federal and State law, the Commonwealth must present evidence at the hearing on the motion to suppress on the factual basis for the police radio call in order to establish its indicia of reliability." Commonwealth v. Berment, 39 Mass. App. Ct. 522, 526 (1995), quoting from Commonwealth v. Cheek, 413 Mass. 492, 494-495 (1992). Moreover, the Commonwealth was on fair notice that the un-identified 911 call was the only basis on which the stop and exit order could be justified, because when the police arrived at the defendant's location, they observed the defendant, seated in a motor vehicle, without any suspicious activity taking place.
Ibid. See Commonwealth v. Berment, 39 Mass. App. Ct. 522, 523 (1995); Commonwealth v. Badore, 47 Mass. App. Ct. 600, 601 (1999). The motion judge found the following facts.
"However, the judge's ultimate findings and conclusions of law, especially those of constitutional dimensions, are open to independent review on appeal." Ibid. See Commonwealth v. Berment, 39 Mass. App. Ct. 522, 523 (1995); Commonwealth v. Badore, 47 Mass. App. Ct. 600, 601 (1999). The motion judge found the following facts.
Once again we consider the constitutional limits on police when they conduct a stop and frisk on the basis of an informant's tip that he has seen someone in possession of a handgun. See Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498 U.S. 951 (1990); Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996); Commonwealth v. Berment, 39 Mass. App. Ct. 522 (1995); Commonwealth v. Foster, 48 Mass. App. Ct. 671, 673-677 (2000); and, most recently, Florida v. J.L., 120 S.Ct. 1375 (2000). "No case in this troublesome area of threshold searches is precisely like any other case. . . ."
Given the state of law in the Commonwealth in 1991, however, the defendant's plea counsel's advice that, based on the judge's findings, an appeal would not be successful, was not patently wrong. The primary cases on which the defendant now relies to show legal error in the judge's ruling, Commonwealth v. Barros, 435 Mass. 171, 172 (2001); Commonwealth v. Cheek, supra; and Commonwealth v. Berment, 39 Mass. App. Ct. 522, 526 (1995), were decided after the challenged advice was tendered and, thus, could not have provided guidance to the defendant's plea counsel. In the five years preceding the defendant's guilty plea, the Appeals Court vacated only two orders denying motions to suppress based on Terry-type stops.
February 1, 1996Further appellate review denied: Reported below: 39 Mass. App. Ct. 522 (1995).
See Commonwealth v. Davis, 63 Mass. App. Ct. 88, 90-91 n. 3 (2005). See also Commonwealth v. Berment, 39 Mass. App. Ct. 522, 529-530 (1995) (Kass, J., dissenting) ("The Fourth Amendment is concerned with the right of `the people to be secure in their persons . . . against unreasonable searches and seizures'" [emphasis supplied]). There is, however, even more here when the collective knowledge of the police officers is taken into consideration.
Such a pattern of evolving events is reflective of the phenomenon that "[s]treet encounters between citizens and police officers are incredibly rich in diversity," Terry, 392 U.S. at 13, and "[i]t is that diversity that yields the abundance of `highly fact-based questions,' . . . frequently implicating, as here, constitutional rights." Commonwealth v.Berment, 39 Mass. App. Ct. 522, 522 (1995) (citation omitted). Because the defendant did not file a pretrial motion to suppress the evidence, i.e., the gun that resulted from the confrontation and the frisking of the defendant and his companions, as required by Mass.R.Crim.P. 13(a), 378 Mass. 871 (1979), the Commonwealth had no occasion to adduce evidence of the circumstances that caused Officer Orth to frisk the men.
See Commonwealth v. Medeiros, 45 Mass. App. Ct. 240, 242 (1998). Contrast Commonwealth v. Cheek, 413 Mass. 492, 496-497 (1992); Commonwealth v. Berment, 39 Mass. App. Ct. 522, 526-527 (1995). A car parked behind another Christy's on the most direct route from Stoughton to Brockton at that pre-sunrise time warranted at least some once-over.