Com. v. Avery

• Decision Date: 02 April 1974
• Parties: COMMONWEALTH v. Willie J. AVERY (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 497

309 N.E.2d 497

365 Mass. 59

COMMONWEALTH v. Willie J. AVERY (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 10, 1974.

Decided April 2, 1974.

David Rossman, Law Student on briefs, for defendants.

Robert Snider, Asst. Dist. Atty., on briefs, for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

The defendants were found guilty, after a trial without jury in the Superior Court, of possession of heroin with intent to sell. Their appeals are here under G.L. c. 278, §§ 33A--33G. Their assignments of error are based (1) on the denial by the Superior Court judge of their motions to suppress certain evidence which was seized from their persons and from an automobile, and (2) on the denial in the Superior Court of their motions to dismiss the indictments because of the denial in the District Court of their motions, as indigents, for transcripts of a probable cause hearing. There was no error.

The facts material to the motions to suppress evidence were as follows. On the morning of October 7, 1971, Officer Linsky, with sixteen years' experience on the Boston police force, fourteen of those in narcotics investigation, received a telephone call from a confidential informant. Officer Linsky had previously received information concerning illegal heroin traffic from this informant on six separate occasions. As a result, arrests had been made and large quantities of drugs seized in the city of Boston. All of this prior information related to individuals carrying drugs from New York to Boston.

The informant told Officer Linsky that two 'good-looking' black males, known to him as 'Willie' and 'Avery,' were operating a 1966 blue Pontiac, New York registration QW1117, and had left the evening before from New York with a large quantity of heroin, and a .38 caliber revolver, to sell drugs in Boston. The informant further identified the defendants by indicating that Avery was wearing a blue denim jacket and pants with a red shirt and white sneakers. The defendant Williams was described as wearing a blue denim jacket and pants with a brown shirt and black boots.

That same day (October 7, 1971), as a result of the information provided by the informant, Officer Linsky contacted Sergeant Kennedy of the day Drug Control Unit and arranged for some officers to be assigned to 'areas of the City where known drug-users and sellers congregate,' including the vicinity of Northampton and Washington streets, 'to try and locate the New York car.' Around noon, Officers Linksy and Currier proceeded, in Currier's private car, to the vicinity of Northampton Street and Shawmut Avenue. In cruising the area, they observed the 1966 blue Pontiac, New York registration QW1117, in front of 617 Massachusetts Avenue.

Thereafter, Officers Linsky and Currier drove to the nearby Shanty Lounge on Washington Street, an area 'always congregated by drug sellers, drug users . . ..' Two males answering the description given by the informant were observed standing in front of the lounge. They were the only men in the vicinity who were dressed in denim suits. The defendant Avery, dressed in a denim suit and white sneakers, was 'leaning up against . . . (a) building with several known users of Heroin.' Police officers saw Avery receive money from the people on the street, and then take something from Williams which he (Williams) had taken from under his belt. Avery returned to the people who had given him money whereupon he was seen shaking hands with them. This series of transactions was observed by two groups of police officers.

At Officer Linsky's request, Sergeant Kennedy, who had been in walkie-talkie communication with Linsky, and two other police officers, all of whom had been observing the defendants, pulled up in front of the Shanty Lounge causing the people to scatter and disperse. Avery and others moved around the corner to the vicinity of the blue Pontiac in clear view of Officers Linsky and Currier. Williams was observed walking five to seven feet behind carrying a brown paper bag. The police officers watched Williams unlock the car and place the paper bag in the automobile. After depositing the bag in the car, Williams was seen giving something, taken from under his belt, to Avery who thereupon returned to the group of people.

Sergeant Kennedy, on orders from Officer Linsky, came on the scene at which time Avery began to run. Officer Currier yelled, 'Halt, police. You are under arrest.' Avery proceeded to throw some articles to the ground which were retrieved by Officer Linsky and identified as fourteen packets of heroin. Avery was then placed under arrest by Officer Currier.

Concurrently, Sergeant Kennedy arrested the defendant Williams in the vicinity of the 1966 Pontiac on Massachusetts Avenue, and removed four packets of heroin from under his belt and the car keys from his pocket. There was conflicting evidence as to whether Williams was told that he was under arrest, and informed of his rights, before or after he was searched. The officers searched the automobile and found a brown paper bag underneath the dashboard, and a fully loaded .38 caliber revolver under the front seat. The paper bag was found to contain 109 bags of heroin wrapped in assorted colored elastic bands. Similar colored elastic bands were found on defendant Avery's person. The defendant Avery was also found to be carrying in his pocket $591 in small denominations.

The judge made findings which, while they were not so detailed as the above recitation of evidence, nevertheless established that he accepted that evidence as true in all important respects.

1. The defendants argue, first, that their warrantless arrest and search were illegal. Since contraband was found on William's person, and not Avery's, we assume that the argument as to Avery is that he would not have thrown fourteen packets of heroin to the ground except for the police words and conduct as they apprehended him in the course of what he says was an illegal arrest.

The defendants rightly state that where, as here, the legality of the police procedure rests on communications from an informant, dual requirements must be met. There must be (1) a showing that the informant was trustworthy, and (2) a further showing that the informant demonstrated to the police the reliability of his information by disclosing underlying facts and circumstances on which his information was based. Aguilar v. Texas, 378 U.S. 108, 112--116, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); COMMONWEALTH V. STEVENS, MASS., 283 N.E.2D 836;^A COMMONWEALTH V. KANE, MASS., 290 N.E.2D 164.^B These are vital, not merely perfunctory requirements. To justify the intrusion of an arrest and search, the tip must not only come from a credible person, but he must be shown to be relying on something more than a casual rumor or an individual's general reputation. Spinelli v. United States, supra 393 U.S. at 415, 89 S.Ct. 584.

There was no error in the judge's findings that the arrest and search of the defendants were legal. The first prong of the dual tests was met, since the informant could be found to be reliable in that his information had led on six prior occasions to arrests, and to seizure of quantities of illegal drugs. As further proof of reliability, all prior tips forecast the...