Com. v. Stevens

• Citation: 283 N.E.2d 673,362 Mass. 24
• Parties: COMMONWEALTH v. Philip STEVENS.
• Decision Date: 02 June 1972
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 673

283 N.E.2d 673

362 Mass. 24

COMMONWEALTH v. Philip STEVENS.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 6, 1972.

Decided June 2, 1972.

Walter T. Healy, Boston, for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON and HENNESSEY, JJ.

HENNESSEY, Justice.

Stevens is charged, in four complaints, with receiving stolen goods. A motion to suppress the evidence described in the complaints was denied by a Superior Court judge. A justice of this court allowed the defendant's application for an interlocutory appeal from the Superior Court judge's ruling. G.L. c. 278, § 28E.

We set forth the facts. On February 6, 1970, at approximately 8:30 A.M. Special Agent Lucksted of the Federal Bureau of Investigation called by telephone a Captain May of the Brookline police department and informed Captain May that he 'had received information from a reliable, confidential source of a mine that Mr. Philip Stavros, also known as Philip Stevens, had a large quantity of jewelry which had been previously stolen or which, in the vernacular, was hot and that this jewelry was in his black-and-white Cadillac.' Captain May said he knew and was familiar with the defendant's black and white Cadillac. Agent Lucksted also advised Captain May that his source 'had furnished information which had proven reliable in the past and . . . that our office had made some recoveries and some arrests from that information.'

Officer Lucas and Detective Hayes of the Brookline police were ordered about 9 A.M. of the same day to proceed to the defendant's store, place the store under surveillance and arrest the defendant when he came out. At this time both Hayes and Lucas knew that the defendant had been convicted of receiving stolen property in the past. Lucas and Hayes immediately proceeded to the defendant's market on Cypress Street, Brookline, where they observed the defendant's motor vehicle, which was known to them, parked on the street just down from the store. Neither officer entered the store or investigated to see if the defendant was actually in the store. Both officers remained in the immediate vicinity of the store, where the defendant's car remained parked, until approximately 4 P.M., when the defendant left the store and entered his car. Lucas did not notice if the defendant was carrying anything as he entered his vehicle. Lucas then observed the defendant drive toward Brookline Village where he was stopped and placed under arrest for suspicion of receiving stolen property. The defendant was then searched by Hayes and a small, blue velvet pouch containing rings was removed from one of his pockets.

At the time of the arrest and search, the police had neither an arrest warrant for the defendant nor a search warrant for his vehicle, and did not know of any such warrants being in existence. The defendant was then booked for receiving stolen property, more specifically the items removed from the blue pouch. Lucas then applied for a search warrant for the defendant's motor vehicle to search for jewelry. After the police had procured a search warrant, they searched the defendant's automobile. After they observed certain items of clothing in the trunk of the automobile, they applied for a second search warrant for the items in the trunk.

The items seized from the person and automobile of the defendant are the subject matter of his motion to suppress. He contends that all items were obtained by the police by means of illegal search. On the present record, the merits of this contention cannot be readily ascertained.

1. Whether the arrest of the defendant, and the search of his person, were constitutionally valid 'depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142. Commonwealth v. Mitchell, 353 Mass. 426, 428, 233 N.E.2d 205. See Commonwealth v. Andrews, Mass., 267 N.E.2d 233. ^a The converse of this rule is that a person cannot be arrested on mere suspicion or rumor. Commonwealth v. Dirring, 354 Mass. 523, 531, 238 N.E.2d 508. The same Fourth Amendment standards of probable cause are applicable to arrests as well as to searches. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503. Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 28 L.Ed.2d 306. United States v. Harris, 403 U.S. 573, 588 n., 91 S.Ct. 2075, 29 L.Ed.2d 723 (dissenting opinion).

Where hearsay is the basis of action by the police, they must have a substantial basis for crediting the hearsay. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697. United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075. Commonwealth v. Rossetti, 349 Mass. 626, 631--632, 211 N.E.2d 658. Credibility is established by meeting two requirements, viz. (1) there should be underlying facts and circumstances indicating the informant's reliability, and (2) there should be underlying facts and circumstances on which the informant bases his information that the defendant is engaged in criminal activity. Aguilar v. Texas, 378 U.S. 108, 112--116, 84 S.Ct. 1509, 12 L.Ed.2d 723. See McCray v. United States, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62; United States v. Cobb, 432 F.2d 716, 719 (4th Cir.); United States v. Mendoza, 433 F.2d 891, 894 (5th Cir.), cert. den. 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225; Williams v. Adams, 441 F.2d 394 (2d Cir.); United States v. Fuller, 441 F.2d 755, 759 (4th Cir.); United States v. Buonomo, 441 F.2d 922, 929 (7th Cir.).

An arrest and search may be upheld where the informant's tip fails for some reason to meet the two-pronged test described above, provided that the tip is sufficiently corroborated by other sources. The constitutional requirements are met if it can fairly be said that the tip, when corroborated by independent sources, is as trustworthy as a tip which would pass the two-pronged test. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637. The observation by police officers of suspicious acts of the defendant may constitute sufficient corroboration of the tip. Commonwealth v. Chaisson, Mass., 266 N.E.2d 311. ^b Commonwealth v. Cohen, Mass., 268 N.E.2d 357. ^c United States v. Newsome, 432 F.2d 51, 53 (5th Cir.). Buelna-Mendoza v. United States, 435 F.2d 1386, 1388 (9th Cir.). United States v. Birdsong, 446 F.2d 325, 327--328 (5th Cir.). Sufficient corroboration also has been found where the informant described the appearance, conduct, and expected behavior of the defendant in substantial detail. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

2. In the case before us, the reliability of the informant was established by the accuracy of similar information that he had previously given to the Federal authorities. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697. United States v. Mendoza, 433 F.2d 891, 894 (5th Cir.). United States v. Fuller, 441 F.2d 755, 759 (4th Cir.). United States v. Birdson, 446 F.2d 325 (5th Cir.). However, there was no showing of any underlying facts upon which the informant based his information, such as observation by the informant of criminal activity by the defendant (McCray v. United States, 386 U.S. 300, 303--304, 87 S.Ct. 1056, 18 L.Ed.2d 62), or observation by the informant of highly suspicious circumstances related to the defendant (Commonwealth v. Lanoue, 356 Mass. 337, 251 N.E.2d 894), or joint participation by the informant and the defendant in criminal conduct (Jones v. United States, 362...