Commonwealth v. Dasilva, 04-P-1437.

• Decision Date: 20 June 2006
• Docket Number: No. 04-P-1437.,04-P-1437.
• Citation: 849 N.E.2d 249,66 Mass. App. Ct. 556
• Parties: COMMONWEALTH v. Jonathan DASILVA.
• Court: Appeals Court of Massachusetts

849 N.E.2d 249

66 Mass. App. Ct. 556

COMMONWEALTH v. Jonathan DASILVA.

No. 04-P-1437.

Appeals Court of Massachusetts, Suffolk.

Argued October 18, 2005.

Decided June 20, 2006.

Jessica Fried, Committee for Public Counsel Services, for the defendant.

Timothy M. Pomarole, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., BERRY, & TRAINOR, JJ.

TRAINOR, J.

The defendant, Jonathan Dasilva, was convicted of possession of a class D substance and appeals on two grounds: (1) that the police stop that led to the discovery of marijuana in his possession was not supported by probable cause or reasonable suspicion; and (2) that it was error for the motion judge not to admit the prior sworn testimony of a witness who testified at the defendant's probation surrender hearing and was unavailable at the time of the motion to suppress hearing. We affirm.

Background. A hearing was held on a motion to suppress the marijuana police had found on the defendant. Following the hearing, the motion judge orally stated her findings of fact, rulings of law, and order denying the motion. In her findings, the motion judge determined that there was probable cause¹ to stop the defendant based on the facts known by the police, whether or not the tip received from an anonymous informant was considered. The motion judge found the following relevant facts, which were supported by the evidence presented at the motion hearing. See Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004) (motion judge's findings of fact accepted absent clear error); Commonwealth v. Vesna San, 63 Mass.App.Ct. 189, 190, 824 N.E.2d 469 (2005) (same).

On May 5, 2002, Officers James Sheehan and Jami Pietroski of the Boston police department, both with less than eight months of experience as police officers, were informed immediately following roll call by their patrol supervisor, Sergeant Gerard Bailey, that he had received information that the defendant and his brother, Bernardo Dasilva, were in possession of firearms and narcotics at 121 George Street in the Roxbury section of Boston, and that one was wearing a white T-shirt and blue jeans and the other was wearing a red T-shirt and blue jeans. The officers were not informed as to the source of the information relayed by Sergeant Bailey.²

Both officers previously had met and spoken to the defendant on several occasions, and were aware that the defendant was between eighteen and nineteen years old and did not live on George Street. In addition, Officer Sheehan was aware that the defendant had pending court cases on charges of assault with intent to murder and firearm possession. Immediately after receiving the information from Sergeant Bailey, the officers, who were in uniform and driving a marked police car, went to 121 George Street, which appeared to be a multi-family dwelling. At no time did they activate their sirens or cruiser lights. The officers were aware, based on information received from other officers, that this neighborhood was a "high crime" area.

Approaching the address, the officers saw the defendant, who was wearing a white T-shirt, blue jeans, and a black jacket, standing at the base of the steps leading to the dwelling and another individual, wearing a red T-shirt and blue jeans, walking up the steps to the entranceway.³ Before the cruiser stopped, the defendant looked at the cruiser and then made a "definite defined movement" with his right hand toward his waistband. The defendant turned right and ran up the stairs with his right hand remaining at his waistband. Based on the officers' training and experience as police officers, they believed that the defendant was carrying a gun in the waistband of his pants.

When the cruiser stopped, Officer Sheehan exited, shouted for the defendant to stop, and chased the defendant through the first floor of the dwelling to a small enclosed courtyard. As the defendant entered the courtyard, he moved his right hand up from his waistband, making a throwing motion over the courtyard wall toward the dwelling next door. The defendant was apprehended in the courtyard, pat frisked, and found possessing a plastic bag containing what was subsequently determined to be marijuana. Officer Sheehan looked over the courtyard wall where the defendant had made the throwing motion and observed a silver-colored revolver on the ground near the wall. The revolver was subsequently retrieved and found to be loaded with six rounds of ammunition.

Motion to suppress. The defendant argues that the Commonwealth failed to establish justification for his seizure by police, especially because the officers' presence at the scene was the result of an anonymous tip relayed to them third-hand.⁴ In fact, case law demonstrates that the circumstances surrounding the defendant's seizure by police were adequate to support reasonable suspicion. The anonymous tip contained details that, when confirmed by independent police observation, indicated reliability, and there were other factors the police could legitimately consider that gave rise to reasonable suspicion that the defendant was committing a crime. See United States v. Bold, 19 F.3d 99, 102 (2nd Cir. 1994) ("Reasonable suspicion depends upon both the content of the information possessed and its degree of reliability").

As an initial matter, the presence of police officers at the location from which they first observed the defendant was clearly permissible, without regard to the provenance of the tip that brought them there. "Police officers have a duty to investigate citizen reports of criminal activity, particularly if the conduct implicates the safety of the public. . . ." Commonwealth v. Davis, 63 Mass.App.Ct. 88, 90, 823 N.E.2d 411 (2005), quoting from Commonwealth v. Fortune, 57 Mass.App.Ct. 923, 924, 785 N.E.2d 1274 (2003). See Commonwealth v. Stoute, 422 Mass. 782, 790, 665 N.E.2d 93 (1996) ("When a tip . . . concerns the possession of a firearm, it deserves the immediate attention of law enforcement officials"). The officers were on a public way responding to information concerning weapons and drug possession, and when they saw the defendant, he was in plain view.

We must also consider what value, if any, the anonymous tip can have in the determination of reasonable suspicion. "Where police conduct an investigatory stop based on information gleaned from an anonymous tip, courts assess the sufficiency of the information in terms of the reliability of the informant and his or her basis of knowledge." Commonwealth v. Walker, 443 Mass. 867, 872, 825 N.E.2d 491 (2005). "Independent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990).

The anonymous tip, when combined with independent police corroboration gave the officers some reason to believe the defendant was then committing a crime.⁵ At least one important detail that the police were able to corroborate from first-hand observation, however, was not obvious to a casual observer: the defendant's identity, which the officers knew before receiving the tip. Compare id. at 21-22, 564 N.E.2d 390. Additionally, the defendant's reaction upon seeing the police — moving his hand to his waistband and fleeing — tended to suggest that the informant's allegation that the defendant was carrying a gun was grounded in personal knowledge. The police were also able to confirm the more obvious details of the tip with a fair degree of accuracy. The location where the defendant and the second individual were found and the clothes they were wearing were accurately detailed by the tip suggesting that the informant's information was very current.

In this case, the officers could also consider, independently, the defendant's actions upon seeing them. After looking directly at the marked police cruiser, the defendant moved his right hand toward his waistband, fled up the stairs of the building where he was standing, and continued to flee even after Officer Sheehan ordered him to stop. Flight from police, while not enough to create reasonable suspicion by itself, may be considered with other factors. Commonwealth v. Rupp, 57 Mass. App.Ct. 377, 382, 783 N.E.2d 475 (2003). See Commonwealth v. Wren, 391 Mass. 705, 708 n. 2, 463 N.E.2d 344 (1984); Commonwealth v. Grandison, 433 Mass. 135, 139-140, 741 N.E.2d 25 (2001). More importantly, the defendant made a definite movement of his hand toward his waistband, which action the officers knew from their training to be indicative of the presence of a gun.

The officers were also entitled to consider their personal knowledge of the defendant, including the fact that he had a pending court case involving charges of firearm possession and armed assault with intent to murder. In several cases, this court has allowed police knowledge of a person's arrest record or unspecified "criminal record" to be considered in a reasonable suspicion evaluation. See, e.g., Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 618, 582 N.E.2d 547 (1991) (based on knowledge of prior arrests, officers "knew that the defendant had possessed firearms in the past, and they were entitled to protect themselves"); Commonwealth v. Calderon, 43 Mass.App.Ct. 228, 230-231, 681 N.E.2d 1246 (1997) (knowledge by police of defendant's long criminal history considered in reasonable suspicion determination); Commonwealth v. Rousseau, 61 Mass.App.Ct. 144, 152-153, 807 N.E.2d 832 (2004) (reasonable suspicion of...