Com. v. Fleming

• Decision Date: 22 September 1994
• Docket Number: No. 93-P-1620,93-P-1620
• Citation: 639 N.E.2d 735,37 Mass.App.Ct. 927
• Parties: COMMONWEALTH v. Charles FLEMING.
• Court: Appeals Court of Massachusetts

Page 735

639 N.E.2d 735

37 Mass.App.Ct. 927

COMMONWEALTH v. Charles FLEMING.

No. 93-P-1620.

Appeals Court of Massachusetts.

Sept. 22, 1994.

Further Appellate Review Denied

Nov. 2, 1994.

Carlo Obligato, Committee for Public Counsel Services, for defendant.

Lawrence P. Ferazani, Jr. (Daniel A. Less, Asst. Dist. Atty., with him), for Com.

RESCRIPT.

This appeal from a conviction of drug trafficking focuses generally on whether the defendant's motion to suppress evidence properly was denied and particularly on whether the basis of knowledge prong of the Aguilar- Spinelli standard was met (satisfaction of the veracity prong is conceded). See 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). We take our facts from the uncontested findings of the motion judge.

At approximately noon on February 8, 1991, State Police Officer Steven Matthews was told by a confidential informant that he expected to receive a multiounce delivery of cocaine between 2 and 2:30 P.M., that day, near the subway station in Central Square, Cambridge. He said the person making the delivery would be an approximately six-foot tall, black, transsexual male with a thin build, weighing about 150 pounds, who was known as "Cicely." The informant stated that Cicely currently was having breast implants and wore male and female clothing at different times. He described Cicely's hair as being pulled back in a bun.

In the course of a surveillance conducted at around 2 P.M. that day at Central Square, Matthews observed the defendant standing near the subway station, carrying a small shopping bag and wearing ordinary blue jeans and a heavy winter jacket. The defendant, who was looking up and down the street, fit the general physical description supplied by the informant and wore a hairstyle consistent with that previously described by him. Matthews approached and inquired as to whether the defendant was Cicely. The defendant responded, "Yes ... why?" Due to the heavy winter jacket, Matthews was unable to confirm the breast implant information.

When Matthews asked what was in the shopping bag carried by the defendant, the response was, "I don't know, its not my bag." At that point the defendant held the shopping bag out to Matthews who, upon inspection, found that it contained several packages of cocaine. The defendant was then arrested and the drugs seized. ¹

"As frequently occurs in search and seizure cases, we are dealing here with line-drawing of a difficult nature." Commonwealth v. Borges, 395 Mass. 788, 797, 482 N.E.2d 314 (1985) (Hennessey, C.J., concurring). The motion judge concluded that although the informant "provided no details regarding the defendant's alleged criminal behavior ... [t]he detailed information the [informant] gave regarding the appearance of the defendant, the precision of the information regarding the time and place of the buy, along with the limited but significant police corroboration ..., combine to satisfy the basis of knowledge test." Were we to rely solely on the detail of the tip and its corroboration, we would be constrained to disagree with the motion judge on the authority of Commonwealth v. Brown, 31 Mass.App.Ct. 574, 581 N.E.2d 505 (1991). In that case, this court found that the facts did not compare favorably with those in the benchmark case of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Brown, the extent of police-corroborated detail exceeded that involved in this case. There, "the informant gave the defendant's name and accurately described the defendant's physical appearance and his approximate age, his mode of travel and time and place of arrival." Commonwealth v. Brown, supra, 31 Mass.App.Ct. at 578, 581 N.E.2d 505....