Com. v. Frazier

• Decision Date: 22 May 1991
• Citation: 571 N.E.2d 1356,410 Mass. 235
• Parties: COMMONWEALTH v. Michele FRAZIER (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1356

571 N.E.2d 1356

410 Mass. 235

COMMONWEALTH v. Michele FRAZIER (and three companion cases ¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued February 7, 1991.

Decided May 22, 1991.

Henry D. Katz, Chelsea, for Donald R. Johnson.

Martha Coakley, Asst. Dist. Atty., for the Com.

Alan Chapman, Chelsea, for Michele Frazier, submitted a brief.

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

LIACOS, Chief Justice.

Defendants Michele Frazier and Donald R. Johnson were indicted for trafficking in cocaine in excess of 200 grams, pursuant to G.L. c. 94C, § 32E(b )(3) (1986 ed.), ² and for conspiracy to traffic in cocaine, pursuant to G.L. c. 94C, § 40 (1988 ed.). Both Frazier and Johnson filed motions to suppress. A judge of the Superior Court allowed both motions, but, after the Commonwealth filed a motion for reconsideration, the judge amended his original suppression order by denying the motion to suppress as to Johnson. The Commonwealth and Johnson each filed an application for an interlocutory appeal. Each application was allowed by a single justice of this court, and the appeals were entered in the Appeals Court. The Appeals Court consolidated the cases, and we transferred them to this court on our own motion.

The Commonwealth argues that the judge erred in finding that there was no probable cause to search Frazier's handbag. Johnson argues that the judge erred in ruling that he did not have automatic standing under Commonwealth v. Amendola, 406 Mass. 592, 550 N.E.2d 121 (1990), to challenge the search of Frazier's handbag.

The judge made the following findings. In October, 1987, State Trooper John F. McCabe received information from a confidential informant, who had provided reliable information in the past, that one Richard Bangs was "dealing in" cocaine and was being supplied by a person named "Don" from Revere. Trooper McCabe verified the information as to Bangs. Bangs's residence was put under police surveillance. On one occasion, the police observed a black Lincoln automobile parked in front of Bangs's house. After further investigation, the police learned that the automobile was registered to Maryann Johnson of East Boston, Johnson's former wife. Johnson once had been arrested in this vehicle; a subsequent search of his house resulted in the seizure of cocaine. The police observed Johnson leaving Bangs's residence with Frazier in the Lincoln automobile. Several days later, the two were again seen approaching Bangs's residence. On the latter occasion, the two were in a white Mercury Cougar automobile which was registered in Frazier's name. The police also observed a meeting between Johnson and the confidential informant in November, 1987.

At 10 A.M. on November 10, 1987, the informant telephoned Trooper McCabe. The informant stated that he had just spoken with Johnson, who said he was going to court that day and might be incarcerated. Johnson told the informant that, if he wanted to purchase cocaine in the future, he should deal with Johnson's girl friend, and he gave the informant a telephone number. Trooper McCabe verified that the number was listed in Frazier's name. Later that morning, the informant again telephoned Trooper McCabe. He told Trooper McCabe that he had just received a telephone call from Johnson to the effect that he had not been incarcerated and that he would continue to handle the cocaine business. The informant told McCabe that Johnson had said he would be making a cocaine transaction between 1 and 2 P.M. that afternoon at a liquor store in Malden. Johnson also told the informant he would be driving the white Mercury Cougar automobile.

Trooper McCabe and other officers immediately set up a surveillance point in the vicinity of the liquor store. Other officers established a surveillance point at Frazier's residence in Revere. These officers observed Johnson and Frazier leaving the apartment house and entering the white Cougar automobile. They observed Frazier carrying a white handbag with a small strap. One of the officers who was participating in the surveillance of Frazier's home recognized her from other drug surveillances.

The officers attempted to follow Johnson. However, Johnson operated the vehicle in a manner "which was designed to 'shake' surveillance." He succeeded in eluding the "tailing" officers. The officers who had been following Johnson then took up stationary positions in the vicinity of the liquor store. McCabe observed the white Cougar automobile pass his position on Route 16 in Malden, going in the direction of the liquor store. Trooper McCabe followed Johnson and Frazier into the parking lot of the liquor store. Johnson drove around the parking lot and then drove back out onto the main thoroughfare to a doughnut shop where Frazier alighted from the vehicle. Other officers were dispatched to the doughnut shop to take up surveillance of Frazier.

Trooper McCabe followed Johnson back to the liquor store. He observed Johnson driving around the parking lot. Johnson then stopped the automobile and made a telephone call. Johnson returned to his automobile and circled the parking lot slowly. He came in proximity to one of the surveillance automobiles. Trooper McCabe concluded that the surveillance had been discovered by Johnson. The trooper communicated this information to the other police officers.

McCabe observed Johnson driving back to the doughnut shop. Johnson stopped the automobile in front of the shop and signalled to Frazier to come out. Frazier shook her head to indicate that she would not come out of the shop. Johnson drove away. The police stopped him and placed him under arrest.

The troopers, who were inside the shop observing Frazier, also noticed that Johnson had stopped the automobile in front of the shop and signalled Frazier to come out. They also observed Frazier shaking her head. The troopers then walked over to Frazier, identified themselves as police officers, and asked, "[I]s that the guy you came with?" Frazier answered, "[N]o, that isn't." Frazier's handbag was on the counter. One of the troopers seized the pocketbook and said, "I can feel a hard object." The trooper unzipped the bag and discovered a large quantity of a hard white substance, later determined to be cocaine. Frazier was placed under arrest.

1. Michele Frazier. The search of Frazier's handbag was conducted without a warrant. A warrantless search is inherently suspect unless it falls within one of the exceptions to the warrant requirement. The Commonwealth argues that the search was valid as incident to the lawful arrest of Frazier. Commonwealth v. Bowden, 379 Mass. 472, 477, 399 N.E.2d 482 (1980). When law enforcement officials use an informant's tip as the basis for an arrest and search, art. 14 of the Massachusetts Declaration of Rights requires that the Commonwealth satisfy the two-pronged test set out 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). The Commonwealth "must 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)." Commonwealth v. Cast, 407 Mass. 891, 896, 556 N.E.2d 69 (1990). If the information provided by the informant fails to meet either or both of the Aguilar- Spinelli prongs, independent police corroboration can be used to compensate for the deficiency. Id. The judge in the case at bar found that the Commonwealth satisfied the "veracity" test because the confidential informant had provided information in the past which led to the arrest and conviction of a named individual. See Commonwealth v. Vynorius, 369 Mass. 17, 21, 336 N.E.2d 898 (1975).

The judge found, however, that the Commonwealth failed to satisfy the "basis of knowledge" test. The judge's findings of fact will not be disturbed unless clearly erroneous. Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985). While the judge's rulings of law, as they bear on constitutional issues, are open for reexamination by this court, they are entitled to substantial deference. Id.

At the time of the arrest, the police had the following information regarding Frazier. The police observed Frazier, and an automobile registered in her name, at the home of Richard Bangs. In addition, they knew that Johnson had told the informant that, if he was incarcerated, the informant should deal with Johnson's girl friend, and provided the informant with a telephone number. The information as to Frazier's automobile registration number and telephone number was corroborated by the police. However, these were merely innocent details to the extent they related to the registration of the vehicle and to Frazier's telephone number. See Commonwealth v. Bottari, supra at 784, 482 N.E.2d 321 (corroboration of innocent details less significant in establishing probable cause than corroboration of facts suggestive of criminal activity). There was no evidence that activity consistent with drug dealing was taking place at Bangs's residence where Frazier and her car were observed. There was no evidence prior to the day of arrest which would have established probable cause to arrest Frazier.

A person may not be arrested based on mere suspicion and association with another individual, even if there is probable cause to believe that the latter committed a crime. See Commonwealth v. Dirring, 354 Mass. 523, 531, 238 N.E.2d 508 (1968). Cf. Commonwealth v. Jacobson, 19 Mass.App.Ct. 666, 675-676, 477 N.E.2d 158 (1985). The only information that the police had as to Frazier's involvement in illegal activity was her association with Johnson. The fact that Johnson told the informant to deal with his girl friend should he be incarcerated does not implicate Frazier...