Com. v. Joe

• Decision Date: 31 May 1996
• Docket Number: No. 95-P-683,95-P-683
• Citation: 40 Mass.App.Ct. 499,665 N.E.2d 1005
• Parties: COMMONWEALTH v. Va Meng JOE.
• Court: Appeals Court of Massachusetts

Page 1005

665 N.E.2d 1005

40 Mass.App.Ct. 499

COMMONWEALTH v. Va Meng JOE.

No. 95-P-683.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 21, 1996.

Decided May 31, 1996.

Robert L. Sheketoff, Boston, for defendant.

Patricia M. Blackburn, Assistant District Attorney, for Commonwealth.

Before SMITH, LAURENCE and LENK, JJ.

LAURENCE, Justice.

Va Meng Joe was convicted of trafficking in heroin in November, 1994. His appeal challenges the denial of his pretrial motion to suppress the inculpatory drugs, which were seized from his pocket by a police officer who had run up to his car while Joe was stopped at a red light. He contends that the police did not have probable cause to stop and search him on the basis of a confidential informant's tip and subsequent police observations. Viewing "the facts and circumstances as a whole in assessing the reasonableness of the officers' conduct" here, Commonwealth v. Williams, 422 Mass. 111, 116, 661 N.E.2d 617 (1996), we affirm the conviction.

At an August, 1993, evidentiary hearing on Joe's motion to suppress, two police officers and a special agent of the Immigration and Naturalization Service (INS), whom the motion judge found credible, testified as follows. ¹ Special Agent Reeves of the INS received a telephone call on September 24, 1992, from a confidential informant (CI). Reeves had spoken with CI in the past but had never before used CI as an informant. CI told Reeves that CI had called Joe earlier that day and had ordered two ounces of "China White" heroin to be delivered to CI at a specific doughnut shop on Morton Street in the Roxbury section of Boston later in the day. ² The delivery was to be made by Joe himself driving alone in a black Mercedes Benz. CI knew Joe (by the alias "David") and had identified him from a photographic array several weeks earlier. ³ Joe was also, according to Reeves, "known to us," although how or why he was so known was never explained.

Reeves immediately conveyed this information to Boston police detectives Morrissey and Grant, experienced members of the Asian organized crime task force. They also "knew" both CI and Joe in some undescribed way. Together the agent and the detectives planned a stakeout of the doughnut shop. Reeves then called CI and reported that "everything was all set up." In three separate vehicles, Reeves, Morrissey, and Grant drove to and parked in the area where the scheduled heroin delivery was to occur. Their surveillance began at about 3:00 P.M. CI was observed standing in front of the doughnut shop making several calls from a pay phone. After 15 to 20 minutes, CI walked across Morton Street and stood by gas pumps at a service station. CI's departure from the doughnut shop was not part of the police plan. Approximately 45 minutes later, Joe appeared, alone, driving a black Mercedes Benz. The car pulled up in front of the doughnut shop and slowed down almost to a stop. Joe appeared to be looking around as if he were meeting someone. He then drove off down Morton Street.

The officers followed Joe's car in their separate vehicles. Reeves became trapped in heavy traffic. Grant and Morissey, however, were close behind Joe when he had to stop at a red light. Grant got out of his car, ran in front of Joe's idling Mercedes, and displayed his badge. Joe then stepped out of his car and stood between the open car door and the driver's seat. Facing Grant, Joe inserted his right hand into his upper left hand pocket. Morrissey, who had by this time run up to the Mercedes to join Grant, saw Joe's hand movement and drew his gun. Grant reached into Joe's upper left hand pocket and pulled out two large plastic bags containing a "tannish" powder that on analysis proved to be 54.20 grams (almost two ounces) of heroin. ⁴

The motion judge rejected Joe's argument that these facts did not establish probable cause to stop Joe's vehicle. Evaluating the evidence flowing from the unnamed informant's tip under the "Aguilar-Spinelli" standard of probable cause, see Commonwealth v. Cast, 407 Mass. 891, 896, 556 N.E.2d 69 (1990), ⁵ the judge concluded that (a) the facts inherent in the tip itself, particularly CI's role in setting up the heroin sale, demonstrated a sufficient basis of personal knowledge (a conclusion not disputed by Joe); (b) although CI had no track record as an informant, the tip was sufficiently detailed to possess "some indicia of reliability"; and (c) the "independent police corroboration of the detailed information provided by the informant established the informant's veracity," particularly since events "unfolded precisely as predicted by the informant." ⁶

Joe's essential appellate argument is that the police observations did not sufficiently corroborate the informant's deficient credibility. It confronts us, as so "frequently occurs in search and seizure cases, ... with line-drawing of a difficult nature." Commonwealth v. Borges, 395 Mass. 788, 797, 482 N.E.2d 314 (1985) (Hennessey, C.J., concurring). It has been presented to us, however, as it was framed for the motion judge, as a question of the reliability of an unidentified informant's tip in the context of probable cause. That is the test for measuring the validity of a search and seizure pursuant to a warrant, Commonwealth v. Upton, 394 Mass. 363, 370, 374-375, 476 N.E.2d 548 (1985), or an arrest, Commonwealth v. Robinson, 403 Mass. 163, 164-165, 526 N.E.2d 778 (1988), based upon such a tip. Neither the warrant nor the arrest scenario fits the present circumstances.

Rather, based upon the hearing transcript and the judge's findings, what occurred here was a police investigatory stop based upon an informant's telephone tip and subsequent police surveillance. See Commonwealth v. Willis, 415 Mass. 814, 815, 616 N.E.2d 62 (1993) (whether a police stop is an arrest or a threshold inquiry is a "highly fact-based question[ ]"). The proper focus of our attention, therefore, is whether the tip, as corroborated by independent police observations, exhibited sufficient indicia of reliability to provide reasonable suspicion to make that investigatory stop. See Commonwealth v. Lyons, 409 Mass. 16, 18-20, 564 N.E.2d 390 (1990); Commonwealth v. Ciaramitaro, 26 Mass.App.Ct. 110, 113-115, 524 N.E.2d 116 (1988). Cf. Alabama v. White, 496 U.S. 325, 328-331, 110 S.Ct. 2412, 2415-2417, 110 L.Ed.2d 301 (1990). On this record, we conclude that reasonable suspicion existed to justify the stop. ⁷

In Commonwealth v. Lyons, 409 Mass. at 19, 564 N.E.2d 390, the Supreme Judicial Court set forth the analysis to be employed in determining whether the police had sufficiently reliable information to warrant making an investigatory stop in the instant circumstances:

"To meet the 'reasonable suspicion' standard in this Commonwealth, police action must be 'based on specific, articulable facts and reasonable inferences therefrom' rather than on a 'hunch.' ... [I]f the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of those factors. Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible. An investigatory automobile stop requires that the Commonwealth prove that the officer 'has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.' " ⁸ (Emphasis added.)

There is no question here, as the judge correctly found, concerning CI's basis of knowledge, since CI had set up the heroin delivery by Joe. Such involvement implied the informant's first-hand and direct knowledge rather than the receipt of casual rumor or the implication of Joe because of his unsavory reputation. See Commonwealth v. Cast, 407 Mass. at 893, 896, 556 N.E.2d 69; Commonwealth v. Rivera, 29 Mass.App.Ct. 290, 293, 560 N.E.2d 131 (1990); Commonwealth v. Fleming, 37 Mass.App.Ct. 927, 928, 639 N.E.2d 735 (1994).

As to the "veracity" prong of the analysis, it is true that CI had done nothing to establish presumptive reliability, such as providing tips producing prior arrests and convictions, Commonwealth v. Kaufman, 381 Mass. 301, 302, 408 N.E.2d 871 (1980), or seizures of contraband, Commonwealth v. Perez-Baez, 410 Mass. 43, 46, 570 N.E.2d 1026 (1991). CI's tip nevertheless reflected first-hand information from a known informant about a pending drug deal involving both the defendant and the informant. That factor weighed in favor of CI's credibility, Commonwealth v. Bakoian, 412 Mass. 295, 301, 588 N.E.2d 667 (1992); Commonwealth v. Rivera, 29 Mass.App.Ct. at 293, 560 N.E.2d 131, as did the fact that CI was reachable by the authorities. See Commonwealth v. Cast, 407 Mass. at 898, 556 N.E.2d 69.

Moreover, as the judge also found, the tip contained fairly specific information of the sort not easily obtainable by a casual bystander. Details such as the identity of the drug dealer, ⁹ the vehicle he would be driving, his exact destination, and the approximate time frame when he would arrive constituted significant indicia of CI's reliability that compare favorably with precedent, particularly under the applicable "less rigorous showing" standard. See Commonwealth v. Anderson, 366 Mass. 394, 399-400, 318 N.E.2d 834 (1974) (anonymous informant's tip reflected personal knowledge and accurately predicted defendant's movements); Commonwealth v. Cantalupo, 380 Mass. 173, 174, 176, 402 N.E.2d 1040 (1980) (known informant, considered reliable by police, identified defendant as possessing and selling drugs at a certain location); Commonwealth v. Bakoian, 412 Mass. at 301-302, 588 N.E.2d 667 (known informant's tip identified drug dealers, their vehicle, their destination, and approximate time of arrival); Commonwealth v. Blake, 23 Mass.App.Ct. 456, 457-459, 503 N.E.2d 467 (1...