Com. v. Bakoian

• Decision Date: 23 March 1992
• Parties: COMMONWEALTH v. Alfred D. BAKOIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 667

588 N.E.2d 667

412 Mass. 295

COMMONWEALTH v. Alfred D. BAKOIAN.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Dec. 5, 1991.

Decided March 23, 1992.

William J. Meade, Asst. Dist. Atty., for Com.

Eric Brandt, Committee for Public Counsel Services, Boston, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

NOLAN, Justice.

On April 5, 1989, an Essex County grand jury indicted the defendant, Alfred D. Bakoian, on a charge of possession of heroin with intent to distribute. At a pretrial hearing, the defendant moved to suppress the heroin, asserting that the warrantless search of the vehicle in which he was a passenger and the consequent seizure of the heroin were illegal for lack of probable cause and exigent circumstances justifying the search. The motion judge ruled that the police had probable cause to believe that the vehicle contained contraband, but he concluded that no exigent circumstances existed which disposed of the requirement of obtaining a warrant prior to conducting the search. The judge entered an order suppressing the heroin. The Commonwealth applied to a single justice of this court, pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979), for leave to obtain review of this ruling. The single justice allowed the Commonwealth's application for interlocutory review and transferred the case to the Appeals Court. We granted the defendant's application for direct appellate review. For the reasons hereinafter set forth, we vacate the order of suppression and direct the entry of an order denying the defendant's motion to suppress.

We set forth the facts of this case as found by the motion judge. On February 9, 1989, at approximately 3 P.M., a confidential informant telephoned Detective Kenneth Avery of the Lynn police department and told him that Alfred Bakoian, the defendant, and an individual named John Walsh were en route from Rhode Island to Lynn with a shipment of heroin. The informant stated that these individuals were traveling in a black Thunderbird automobile with a beige roof, bearing Massachusetts registration number 420TCZ. The confidential informant further informed Detective Avery that the defendant and Walsh soon would arrive at the defendant's apartment. Detective Avery had previously arrested the defendant at Logan Airport for a heroin offense and thus knew his address to be 20 Surfside Road in Lynn.

Detective Avery thereafter communicated with other Lynn police officers and directed them to set up a surveillance at the defendant's residence. For his part, Avery parked on the General Edwards Bridge in Lynn and waited for the passing of the automobile. At approximately 4 P.M., Avery saw an automobile fitting the description he received from the confidential informant. He recognized the driver and passenger of that automobile as John Walsh and the defendant, respectively. Avery radioed the surveillance officers and told them of his observation. Avery then drove to the defendant's apartment.

The surveillance officers detained the defendant and John Walsh in the rear parking lot of the defendant's apartment building. Moments later, Avery arrived and noticed that the hood of the automobile was "ajar." Avery searched under the hood and retrieved a quantity of heroin from underneath the air filter.

1. Probable cause. The motion judge found that the Lynn police had probable cause to search the subject vehicle, based on the precise information provided to them by the confidential informant and the independent police corroboration of the details of that information. Commonwealth v. Robinson, 403 Mass. 163, 526 N.E.2d 778 (1988). The judge noted that Detective Avery and other Lynn police officers knew the informant to be a credible source of information in the past, and that they had verified the informant's information on this occasion in almost every detail prior to detaining the defendant and Walsh. Id. at 168, 526 N.E.2d 778. The judge further found that the level of detail supplied by the informant as to the identity of the defendant and his companion, their general route of travel, and the vehicle in which they rode allowed for the inference that the informant spoke from personal knowledge, and not on the basis of unfounded rumor. Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990). The judge concluded that the Commonwealth adequately established the informant's basis of knowledge by the reasonable inferences to be drawn from Detective Avery's testimony. Robinson, supra. We accept a judge's findings of fact, in the absence of clear error, and grant substantial deference to the conclusions of law based thereon. Cast, supra at 897, 556 N.E.2d 69, citing Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985). Under this rule we conclude that there is no error.

In order successfully to establish probable cause to search the vehicle on the basis of information supplied by a confidential informant, the Commonwealth had to "demonstrate some of the underlying circumstances from which (a) the informant gleaned his information (the 'basis of knowledge' test), and (b) the law enforcement officials could have concluded the informant was credible or reliable (the 'veracity' test)." Cast, supra 407 Mass. at 896, 556 N.E.2d 69, citing Robinson, supra 403 Mass. at 164-165, 526 N.E.2d 778. Deficiencies in the proof required under either or both prongs of the test may be compensated for by police corroboration of an informant's detailed tip. Cast, supra.

In support of its claim that the Lynn police had probable cause to search the vehicle, the Commonwealth presented the testimony of Detective Avery, which described the informant's past reliability and the independent police corroboration of the details of the informant's tip in the instant matter. The Commonwealth did not present direct testimony as to the confidential informant's basis of knowledge, stating that such testimony would reveal the informant's identity, which the government is privileged to withhold. ¹ See Commonwealth v. Amral, 407 Mass. 511, 516, 554 N.E.2d 1189 (1990) (discussing government's privilege of nondisclosure of an informant's identity). On appeal, the Commonwealth asserts that the judge correctly ruled that the basis of the informant's knowledge could be inferred from the corroborated, detailed information provided to the Lynn police. Robinson, supra 403 Mass. at 166, 526 N.E.2d 778.

The defendant argues that the information supplied by the confidential informant did not provide the police with probable cause to search the vehicle. ² Specifically, the defendant contends that the Commonwealth's failure to introduce evidence of the informant's basis of knowledge precluded a finding of probable cause. ³ See Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985). The tip, according to the defendant, did not possess sufficient indicia of the informant's reliability to justify the police action. As support for this argument, the defendant relies on Commonwealth v. Lyons, 409 Mass. 16, 564 N.E.2d 390 (1990). We do not agree with the defendant's contentions and conclude that the facts of this case are easily distinguished from those at issue in Lyons, justifying a different outcome in this matter.

In Lyons, we considered whether police justifiably conducted an investigatory stop of a vehicle traveling on a public way on the basis of a tip received from an anonymous informant. The unidentified caller in Lyons reported that two white males, one of whom was named Wayne, were in route from Chelsea, Massachusetts, to Bridgton, Maine, in a silver Hyundai automobile with Maine registration number 44044T, transporting a quantity of narcotics. Lyons, supra at 17, 564 N.E.2d 390. In evaluating "the tip's indicia of reliability [the court] focused on the informant's reliability and his or her basis of knowledge." Id. at 19, 564 N.E.2d 390. The court noted that "police corroboration [of the informant's tips] may make up for any deficiencies in one or both of these factors." Id.

The court concluded in Lyons that the tip failed to provide any information on which the informant's reliability could sufficiently be established because "[t]he tip provided no information regarding either the basis of the informant's knowledge or his reliability." Lyons, supra at 20, 564 N.E.2d 390. The information provided by the informant, we observed, related solely to "obvious details" and did not suggest that the informant had "any special familiarity with the defendant's affairs that might substitute for explicit information about the basis of the caller's knowledge." Id. at 20-21 & n. 5, 564 N.E.2d 390. In this respect, the court distinguished the circumstances in Lyons from the situation presented in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), wherein the Supreme Court upheld an investigatory stop of a vehicle on the basis of police corroboration of nonincriminating details provided by an anonymous tip. ⁴ While acknowledging that the Supreme Court decided the White case using the "totality of the circumstances" standard--an analysis rejected by this court as lacking the precision that should be articulated in determining the existence of probable cause or reasonable suspicion, see Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985)--the court noted that the tip at issue in Lyons probably would not pass muster under the more flexible White standard either. Lyons, supra 409 Mass. at 21 n. 5, 564 N.E.2d 390. The court explained that the information provided by the informant in White, unlike that given by the Lyons informant, essentially "predict[ed] 'future behavior' " by the suspect which, when verified, supplied a basis to infer that the informant's tip was grounded in personal knowledge. Lyons, supra, quoting White, supra 110 S.Ct. at 2417. Consequently, the court held in Lyons that, in order to conclude that a tip from...