Opinion
16-P-699
06-29-2017
COMMONWEALTH v. Judex PEREIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pursuant to leave granted by a single justice of the Supreme Judicial Court, see Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), the Commonwealth appeals from an order of a judge of the Superior Court allowing the defendant's motion to suppress evidence seized in a warrantless search of an automobile based on a tip provided by a confidential informant (CI). We reverse.
We adopt the subsidiary findings of fact of the motion judge, which we accept absent clear error, reserving for independent review his ultimate findings and his conclusions of law. See Commonwealth v. Anderson, 461 Mass. 616, 619 (2012) ; Commonwealth v. Charley, 91 Mass. App. Ct. 223, 224 (2017). We need not rehearse those findings in detail; for present purposes it is sufficient to observe that a reliable CI told a Boston police officer that a silver Toyota RAV4 sport utility vehicle, with a specific license plate number, would soon be in the area of a particular intersection, and that its passenger would have a large quantity of cocaine with him. The CI said that the passenger would be an Hispanic man (later identified as the defendant), wearing a red shirt and a black baseball cap, and that the vehicle would be driven by an Hispanic female. When officers shortly thereafter observed a vehicle matching that description approach the predicted intersection, driven by an Hispanic female with an Hispanic male passenger, they stopped the vehicle, ordered the occupants out of it, pat frisked the defendant (finding a knife), and searched the vehicle (finding a large brick of cocaine wrapped in green plastic wrap and then in a black sweatshirt).
The motion judge found that the CI had furnished information for a period of almost four years that had led to the seizure of significant quantities of illegal drugs on six to eight occasions.
The motion judge ruled that the tip furnished by the CI did not satisfy the basis of knowledge prong of the Aguilar-Spinelli test. We disagree. "[A]n informant's detailed tip, plus independent police corroboration of those details, can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli standard and thus satisfy the ... probable cause requirement" of art. 14 of the Massachusetts Declaration of Rights. Commonwealth v. Welch, 420 Mass. 646, 651 (1995). The detailed nature of the information in the present case, corroborated by police officers at the time of the stop, supports a conclusion that the basis of the CI's knowledge "appeared within the tip itself." Commonwealth v. Alvarado, 423 Mass. 266, 271 (1996). The CI described the vehicle in detail: a specific make, model, and color, with a specific license plate number. The CI also provided the specific location where the vehicle would be "soon," and advised that the vehicle would be occupied by two people—an Hispanic female, who would be driving, and an Hispanic male, who would be the passenger. Finally, the CI described the color of the hat and the shirt the male passenger was wearing. The adequacy of such corroborated details to satisfy the basis of knowledge prong is established by such cases as Commonwealth v. Robinson, 403 Mass. 163, 164 (1988) ; Commonwealth v. Santana, 403 Mass. 167, 168 (1988) ; Commonwealth v. Gonzalez, 403 Mass. 172, 173 (1988) ; Commonwealth v. Farrow, 403 Mass. 176, 177 (1988) ; and Commonwealth v. Triantafillakos, 33 Mass. App. Ct. 949, 949 (1992). Commonwealth v. Lyons, 409 Mass. 16, 17 (1990), on which the defendant relies, is inapposite; in that case the tip was from an anonymous telephone call rather than from a reliable informant.
See Aguilar v. Texas, 378 U.S. 108 (1964) ; Spinelli v. United States, 393 U.S. 410 (1969).
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We note that the motion judge appeared to place some significance on his assessment that the shirt worn by the defendant at the time of the stop was a plaid pattern including red, rather than simply "red" as described by the CI. The difference is of no consequence, for two reasons. First, the admission, after the close of the evidentiary hearing, of the defendant's affidavit, with its attached photograph, was error. The affidavit was hearsay, and was inadmissible if for no other reason. Moreover, its admission after the close of evidence foreclosed any opportunity for the Commonwealth to elicit clarifying testimony from the arresting officer (much less to cross-examine the affiant). But even if the affidavit and its accompanying photograph were properly considered, the minor deviation it reflected did not derogate significantly from the corroborated details establishing the CI's basis of knowledge. See, e.g., Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 197-198 (2003).
Order allowing motion to suppress evidence reversed.