425 Mass. 99 (1997), Commonwealth v. Va Meng Joe

Citation:425 Mass. 99, 682 N.E.2d 586
Case Date:June 03, 1997
Court:Supreme Judicial Court of Massachusetts

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425 Mass. 99 (1997)

682 N.E.2d 586




Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1997

Argued Feb. 6, 1997.

[682 N.E.2d 587] Robert L. Sheketoff, Boston, for defendant.

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


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.

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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

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stop, but instead proceeded down Morton Street. 4 Detective Morrissey and Detective Grant followed. 5 When the defendant stopped at a red light, [682 N.E.2d 588] 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

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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 [682 N.E.2d 589] 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,

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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...

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