Com. v. Va Meng Joe

• Decision Date: 03 June 1997
• Citation: 682 N.E.2d 586,425 Mass. 99
• Parties: COMMONWEALTH v. VA MENG JOE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 586

682 N.E.2d 586

425 Mass. 99

COMMONWEALTH v. VA MENG JOE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 6, 1997.

Decided June 3, 1997.

Robert L. Sheketoff, Boston, for defendant.

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

Before WILKINS, C.J., and LYNCH, O'CONNOR, FRIED and MARSHALL, JJ.

LYNCH, Justice.

The defendant was indicted in December of 1992 for trafficking in heroin. G.L. c. 94C, § 32E (c ) (1). Prior to trial, the defendant moved to suppress the drugs which were seized from his pocket at the time of his arrest. The motion was denied. The defendant waived a jury trial and was found guilty by a Superior Court judge. The defendant appealed. The Appeals Court affirmed the conviction, concluding that the stop of the defendant was a valid investigatory stop and that the subsequent search of the defendant was justified because the police officers were warranted in taking reasonable precautions for their own protection. Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. 499, 508-509, 665 N.E.2d 1005 (1996). We granted the defendant's application for further appellate review and affirm, but on grounds somewhat different from those relied on by the Appeals Court.

Facts. The judge found the following facts. ¹ A confidential informant told Special Agent Randy Reeves of the United States Immigration and Naturalization Service that he had spoken to the defendant on the telephone and that he had ordered two ounces of heroin. The informant said that the heroin delivery would take place that day outside a doughnut shop on Morton Street in the Roxbury section of Boston between 3:30 and 4 P.M., ² and that the defendant would deliver the heroin alone in a black Mercedes-Benz automobile. ³ The informant had previously been arrested; this was the first time that the informant had provided any information to the police.

Special Agent Reeves then talked with Detective Thomas Morrissey and Detective Russell Grant of the Boston police department. The three then planned a stakeout near the doughnut shop. At approximately 4 P.M., the defendant appeared alone in a black Mercedes-Benz in front of the doughnut shop. He pulled in front of the doughnut shop and, although he slowed down, he did not come to a complete stop, but instead proceeded down Morton Street. ⁴ Detective Morrissey and Detective Grant followed. ⁵ When the defendant stopped at a red light Detective Grant ran in front of the defendant's automobile and displayed his badge. As Detective Grant approached, the defendant stepped out of his vehicle and put his right hand into his upper left pocket. Detective Morrissey, who had also left his vehicle, then drew his weapon, and the defendant removed his hand from his pocket. On searching the defendant the police officers found two large plastic bags containing a "tannish" colored powder; laboratory testing revealed that the substance was heroin.

Discussion. At the motion to suppress hearing, the Commonwealth conceded that the police officers, in searching the defendant, were not acting out of a concern for their safety. ⁶ The Commonwealth argued before the Appeals Court that the search of the defendant was justified by the presence of probable cause. The Appeals Court, however, concluded that the warrantless search was lawful because the search was "confined ... to what [was] minimally necessary to learn whether ... [the suspect was] armed" and valid under the principles enunciated by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Commonwealth v. Va Meng Joe, supra at 511, 665 N.E.2d 1005.

An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings. Indeed, if the facts found by the judge support an alternative legal theory, a reviewing court is free to rely on an alternative legal theory. See Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990); Commonwealth v. Signorine, 404 Mass. 400, 403 n. 1, 535 N.E.2d 601 (1989). ⁷ Here, however, the Commonwealth conceded that the police officer, in searching the defendant, was not motivated by a concern for his own safety. Therefore, the search cannot be justified as a valid warrantless search on that ground. We consider, therefore, whether the police officers had probable cause to search the defendant. See Commonwealth v. Cast, supra at 901, 556 N.E.2d 69; Commonwealth v. Anderson, 406 Mass. 343, 346, 547 N.E.2d 1134 (1989).

Probable cause. In order to have had probable cause to arrest and search the defendant, the police officers would have to have known of enough facts and circumstances "to warrant a person of reasonable caution" in believing that the defendant had committed or was committing a crime. See Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982), and cases cited; Commonwealth v. Skea, 18 Mass.App.Ct. 685, 686-687 n. 3, 470 N.E.2d 385 (1984).

"Where an unnamed informant's tip is relied on by law enforcement officers as supplying probable cause to arrest and search the defendant, art. 14 [of the Massachusetts Declaration of Rights] requires that the information pass muster under the two-pronged standard set forth in Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964), and Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969)." Commonwealth v. Cast, supra at 896, 556 N.E.2d 69. Generally, to satisfy the "Aguilar-Spinelli" test, the Commonwealth is required to demonstrate (1) some underlying circumstances which demonstrate a basis of the informant's knowledge (basis of knowledge test) and (2) some underlying circumstances from which the law officials could have concluded that the information was reliable (veracity test). Id. See Commonwealth v. Robinson, 403 Mass. 163, 164-165, 526 N.E.2d 778 (1988). Independent police corroboration of detailed information supplied by the informant can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli test. See Commonwealth v. Desper, 419 Mass. 163, 166, 643 N.E.2d 1008 (1994); Commonwealth v. Cast, supra; Commonwealth v. Robinson, supra at 166, 526 N.E.2d 778; Commonwealth v. Upton, 394 Mass. 363, 376, 476 N.E.2d 548 (1985).

The defendant concedes that the informant has a sufficient basis of knowledge, but argues that the veracity test has not been satisfied. The veracity test requires a showing of the underlying circumstances from which the police could conclude that the information provided by the informant was credible or reliable. We therefore consider whether the tip provided any indicia of reliability and whether independent police investigation sufficiently corroborated the tip such that the veracity prong of the test was satisfied. See Commonwealth v. Cast, supra at 900, 556 N.E.2d 69; Commonwealth v. Carrasco, 405 Mass. 316, 321-322, 540 N.E.2d 173 (1989) (where informant had never before provided information to police, informant's veracity was demonstrated by independent police corroboration of detailed information provided by informant).

The tip contained details of fairly specific information of the type not easily obtainable by a casual bystander such as the identity of the drug dealer, the vehicle he would be driving, his exact destination, and the approximate time when he would arrive. See Commonwealth v. Bakoian, 412 Mass. 295, 301-302, 588 N.E.2d 667 (1992) (detailed, corroborated tip stating "the exact identities of the persons occupying the vehicle, their exact destination, and the approximate time frame within which they would arrive at the destination location" helped establish informant's reliability); Commonwealth v. Anderson, 366 Mass. 394, 399-400, 318 N.E.2d 834 (1974) (tip itself had indicia of reliability where inference could be drawn that it was based on informant's personal observations and accurately predicted defendant's movements). In addition to the detailed information contained within the tip, the informant was reachable by authorities; Special Agent Reeves had telephoned him and told him that everything was set. See Commonwealth v. Bakoian, supra at 301, 588 N.E.2d 667 (that police knew informant's identity gave tip indicia of reliability); Commonwealth v. Cast, supra at 898, 556 N.E.2d 69 (that informant gave agents his telephone number indicated that tip itself contained some indicia of reliability). Contrast Commonwealth v. Melendez, 407 Mass. 53, 58 n. 4, 551 N.E.2d 514 (1990) (no indication that police knew informant's name or address or would have been able to reach him). ⁸

These inherent indications of veracity were shored up by the police investigation that corroborated many of the details provided by the informant. See Commonwealth v. Montanez, 410 Mass. 290, 300, 571 N.E.2d 1372 (1991); Commonwealth v. Carrasco, supra at 321-322, 540 N.E.2d 173. Indeed, as the motion judge noted, "events unfolded precisely as predicted by the informant." The defendant arrived alone at the doughnut shop on Morton Street on September 24, 1992. He was driving a black Mercedes-Benz, and he arrived at approximately 4 P.M. Moreover, the police officers corroborated the informant's prediction with respect to the defendant's future behavior by verifying the defendant's arrival, alone, at a particular location at a particular time. Corroboration of future behavior, which goes beyond "readily available information," has a special significance when determining the reliability of an informant. Commonwealth v. Carrasco, supra at 322, 540 N.E.2d 173. See Commonwealth v. Bakoian, supra at 302, 588 N.E.2d 667; Commonwealth v. Cast, 407 Mass. 891, 897-898, 556 N.E.2d 69 (1990); Commonwealth v. Robinson, supra at 166 n. 2, 526 N.E.2d 778; Commonwealth v. Anderson, supra at 400, 318 N.E.2d 834. Contrast Commonwealth v. Spence, 403 Mass. 179, 181, 526 N.E.2d 1054 (1988) (where...