Com. v. Crawford

• Decision Date: 10 February 1994
• Parties: COMMONWEALTH v. Vincent CRAWFORD (and three companion cases.) 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 4

628 N.E.2d 4

417 Mass. 40

COMMONWEALTH v. Vincent CRAWFORD

(and three companion cases.) ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 5, 1993.

Decided Feb. 10, 1994.

Katherine E. McMahon, Asst. Dist. Atty., for the Com.

Shawn Salter (Frank G. Kelleher with him), for Vincent Crawford.

Dennis M. Powers, for Gail M. Pina.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

This is the second interlocutory appeal by the Commonwealth, from an order suppressing evidence seized without a warrant. See Commonwealth v. Crawford, 410 Mass. 75, 571 N.E.2d 7 (1991) (Crawford I ). At issue in that case was whether the police had probable cause to arrest and search the defendants without a warrant, based on a confidential informant's tip. Because the reliability of the confidential informant had not been established to the satisfaction of a judge in the Superior court, the judge held an in camera hearing with the trooper out of the presence of defense counsel in order to assess the trooper's confidential information. The judge later reconsidered the lawfulness of the in camera hearing, and ordered the evidence suppressed. In Crawford I, supra at 79, 571 N.E.2d 7, we could not determine whether, without reliance on the in camera hearing, the judge credited the officer's testimony in open court that the informant had previously given information that had led to the arrest and indictment of two persons and the seizure of over one kilogram of cocaine. Consequently, we remanded the matter. On remand, the judge stated that he believed the officer's testimony in open court. Having found the officer credible, the judge should not have suppressed the evidence. We reverse the allowance of the defendants' motion to suppress.

Facts. On remand, the Commonwealth presented no new evidence, relying, instead, on the evidence presented at the original suppression hearing and Commonwealth v. Perez-Baez, 410 Mass. 43, 570 N.E.2d 1026 (1991), which was decided after that original hearing.

At the original suppression hearing, the officer testified that he learned from a confidential informant that Crawford planned to receive a shipment of cocaine from New York on the evening of October 21, 1987. Crawford, himself, had told the informant of the plan. The informant said that Crawford's girl friend would be arriving at South Station Amtrak terminal in Boston, sometime around midnight. The informant said Crawford planned to meet his girl friend in a grey Datsun Maxima automobile, Massachusetts registration 217MPC. Crawford I, supra, 410 Mass. at 76, 571 N.E.2d 7.

The officer testified that, shortly after 1 A.M., the Amtrak train from New York arrived at the station. Crawford was waiting at the station. He was not driving the Maxima automobile which was registered to him. He was driving a Datsun Sentra automobile. Another man followed behind Crawford, driving the Maxima described in the tip. The driver of the Maxima approached two women who had come from the train. One of the women was the defendant Gail Pina. The three then walked toward Crawford. When the two women started to get into the Sentra, the officer intervened. In a pink travel bag Pina was carrying, the officer discovered two kilograms of cocaine. The officer also found cocaine in the Sentra and hidden in Crawford's socks. Crawford I, supra at 76-77, 571 N.E.2d 7.

The officer further testified that the informant had, in the past year, given information which led to the arrest and indictment of two unnamed persons and the seizure of over a kilogram of cocaine. Crawford I, supra at 77, 79, 571 N.E.2d 7. On remand, the judge adopted his original findings of fact with one piece of additional information, ² and again allowed the defendants' motion to suppress.

Discussion. The judge, in his written findings on remand, stated that he held the in camera hearing because he "determined that further details in support of the [confidential informant's] reliability were required." The judge also reiterated his belief that further details must be supplied by the Commonwealth. He concluded, "[s]ince these details have not been lawfully supplied [apart from the ex parte hearing] by the Commonwealth," the defendants' motions to suppress must be allowed.

When information comes from a confidential informant, the judge must be informed of "some of the underlying circumstances" regarding both the informant's basis of knowledge and veracity. Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985), citing 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). In Crawford I, we said, "There was testimony in open court which, if believed, would satisfy both prongs of the Upton test." Crawford I, supra, 410 Mass. at 78, 571 N.E.2d 7. See Commonwealth v. Perez-Baez, 410 Mass. 43, 570 N.E.2d 1026 (1991) (decided after the original suppression hearing). However, we could not determine if the judge credited the officer's testimony. Crawford I, supra, 410 Mass. at 78-79, 571 N.E.2d 7. On remand, the judge stated, "I believed the Trooper, period." Thus, there was no basis to suppress the evidence. We reverse the judge's order suppressing the evidence, and remand the case to the Superior Court for trial or for such other proceedings as may be needed.

So ordered.

LIACOS, Chief Justice (dissenting).

I respectfully dissent from the court's decision because I believe that it misinterprets our decision in Commonwealth v. Crawford, 410 Mass. 75, 571 N.E.2d 7 (1991) (Crawford I ), and also implicitly approves of the inappropriate conduct of the assistant district attorney.

Today this court states that, "[i]n Crawford I, ... we could not determine whether, without reliance on the in camera hearing, the judge credited the officer's testimony in open court that the informant had previously given information that had led to the arrest and indictment of two persons and the seizure of ... cocaine." Ante at 5. The court's statement is clearly refuted by the language used in Crawford I.

In Crawford I, supra, 410 Mass. at 79, 571 N.E.2d 7, we stated:

"[I]t is apparent from the record that the judge was not entirely convinced that the officer was being candid in his testimony in open court. The officer refused to reveal the names of the two individuals arrested pursuant to the informant's prior tip. The prosecutor suggested that the officer tell the judge the names of the individuals in-camera, so as not to compromise the informant. The officer did so and the judge was then apparently convinced that the officer was telling the truth. Later, the judge decided that the in-camera hearing was inappropriate and returned to his prehearing conclusion, that he was unconvinced by the trooper's statements concerning the informant's reliability." (Emphasis supplied.)

As I read the quoted language, we indeed did conclude that apart from the inappropriate in camera hearing with the trooper, the judge determined that the veracity prong of the Upton test (Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 [1985] ) had not been satisfied because the officer had not provided enough specific details regarding the past arrests and seizures. ¹ While we may have suggested incidentally that the judge seemed to have a problem with the officer's credibility, the main issue in the case was whether there were sufficient details regarding the prior arrest and drug seizure to satisfy the veracity prong of Upton, supra. ² The judge's memorandum and order after remand reinforces this point, because in it the judge noted, "There were no details supplied concerning these prior tips. Since the in camera hearing was invalid, and since the Commonwealth refuses to conduct another in camera hearing in the presence of defense counsel, there continue[ ] to be no details regarding the basis of the [informant's] reliability ... [and] the reliability prong of Aguilar- Spinelli has not been satisfied" (emphasis supplied). ³ See Commonwealth v. Upton, supra, 394 Mass. at 374-374, 476 N.E.2d 548. See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Furthermore, at the hearing after remand, in discussing his use of the trooper's testimony at the in camera hearing, the judge said, "I didn't use it as the basis of my decision."

We remanded the case in Crawford I, in essence, to give the Commonwealth another chance at establishing probable cause "in a manner consistent with the defendant's rights." See Crawford I, supra, 410 Mass. at 80, 571 N.E.2d 7. We noted that a hearing should take place on remand in which the prosecutor and defense attorneys should participate. Id. We stated that, "[i]f, in the presence of the defendant's...