Commonwealth v. Gonzalez

• Decision Date: 29 August 2016
• Docket Number: No. 14–P–1626.,14–P–1626.
• Parties: COMMONWEALTH v. Hector GONZALEZ.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 100

56 N.E.3d 871

COMMONWEALTH

v.Hector GONZALEZ.

No. 14–P–1626.

Appeals Court of Massachusetts, Hampden.

Argued Dec. 4, 2015.

Decided Aug. 29, 2016.

Thomas E. Robinson for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: COHEN, TRAINOR, & KATZMANN, JJ.

KATZMANN

, J.

In the instant appeal from the denial by a Superior Court judge of the defendant's motion to suppress, the defendant challenges the warrantless search of his person and arrest based on information police received from a confidential informant. A single justice of the Supreme Judicial Court allowed the defendant's application for leave to pursue an interlocutory appeal of the Superior Court's order and reported the matter to this court. The primary issue posed by this appeal is whether the exclusionary rule precludes a judge from considering evidence of a prior incident in an unrelated case in evaluating the accuracy of a confidential informant's “track record” where that evidence was suppressed in the unrelated case after a finding by a different judge that the informant's veracity had not been adequately established. On the record before us, we answer that question in the negative and affirm the order denying the motion to suppress.

Background. We recite the facts as found by the motion judge after an evidentiary hearing. On June 14, 2013, at approximately 7:40 p.m. , Detective Edward Kalish, an experienced narcotics detective with the Springfield police department, received information from a confidential informant (CI) that, at that moment, a Hispanic male named Hector Gonzalez was in possession of a large quantity of heroin on Knox Street in Springfield. The CI further stated that Gonzalez was wearing dark shorts, dark shoes, and a light blue basketball jersey bearing number “8” with the name “Bryant” on the back. The CI said that Gonzalez was a passenger in a blue Honda automobile bearing a specific Massachusetts license plate number. According to the CI, the vehicle was being operated by a white male.

The CI was known to Detective Kalish by name, address, Social Security number, and date of birth. At the time of the tip, Detective Kalish had been working with the CI for two to three months. The CI had previously provided information that had resulted in arrests in two other cases, neither of which had been resolved at the time of the tip. In one of the cases, a firearm had been seized from Hector Rosario. In a second case, the CI's cooperation had led to the seizure of a large amount of heroin and to arrests.

Detective Kalish immediately communicated the substance of the CI's tip to other members of his unit. Sergeant Stephen Kent responded to the area of Knox Street within five to six minutes of Detective Kalish's radio communication. There he observed a Hispanic male in a light blue basketball jersey bearing the number “8” with the name “Bryant” on the back. The Hispanic male, later identified as the defendant, left a residence on Knox Street and entered the passenger side of a blue Honda automobile bearing the same Massachusetts license plate number as the CI had reported. The driver of that vehicle was a white male.

Sergeant Kent communicated with other members of his unit by radio that he had observed the Hispanic male described by the CI entering the blue Honda on Knox Street. Thereafter he followed the vehicle, but did not participate in the stop. Detective Gregg Bigda responded to Knox Street at the same time, observed the blue Honda, and followed it to the intersection of Dickinson and Euclid Streets, where the blue Honda stopped without being directed to do so by law enforcement officers. Detective Bigda stopped his unmarked vehicle beside the blue Honda, got out, approached the passenger's side of the Honda, and removed the defendant. Other police vehicles blocked the Honda's path of travel. Two other officers searched the defendant's person and seized ninety-seven bags of heroin and five bags of cocaine from his pants pockets. The defendant was arrested and transported to the police station, where an inventory of his property revealed $499 in United States currency.

Citing Commonwealth v. Skea, 18 Mass.App.Ct. 685, 700, 470 N.E.2d 385 (1984)

, and implicitly determining that the defendant was not under arrest until some point after he had been removed from the vehicle, the motion judge concluded that the officers had probable cause to search the defendant to prevent the destruction of evidence.

Discussion. “In reviewing a denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480, 869 N.E.2d 605 (2007)

. Because, as we discuss below, we conclude that the police had probable cause to arrest the defendant at the time that he was removed from the Honda, we need not determine whether the police formally placed him under arrest before or after the search, as the search could be justified either way as a valid search incident to arrest. See id. at 481, 482, 869 N.E.2d 605 (“A search incident to an arrest is a limited exception to the warrant requirement” but “a suspect need not be formally under arrest at the precise moment of a search incident to an arrest; the search may precede the formal arrest so long as probable cause exists independent of the results of the search”); Skea, supra at 696 n. 15, 470 N.E.2d 385

(“If a police officer has probable cause to believe a suspect on the street is carrying, say, heroin, it is clear from Rawlings [v. kentuCky, 448 u.s. 98, 111, 100 S.CT. 2556, 65 l.ed.2d 633 (1980)

,] that he is not required first to arrest, then to search. He may instead begin with the search, and, on finding the heroin, arrest” [citation omitted] ).

“Where an unnamed informant's tip is relied on by the police as supplying probable cause to arrest and to search, art. 14

[of the Massachusetts Declaration of Rights] requires that the information satisfy the two-pronged standard set forth 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).” Commonwealth v. Welch, 420 Mass. 646, 650, 651 N.E.2d 392 (1995). To satisfy this standard, “[t]he Commonwealth must (1) demonstrate the basis of the informant's information and (2) put forward sufficient indicia of veracity to justify probable cause.” Commonwealth v. Crawford, 410 Mass. 75, 78, 571 N.E.2d 7 (1991). “[A]n informant's detailed tip, plus independent police corroboration of those details, can compensate for deficiencies in either or both prongs of the Aguilar –Spinelli standard and thus satisfy the art. 14 probable cause requirement.” Welch, supra at 651, 651 N.E.2d 392. “[T]he Aguilar –Spinelli test is not to be applied ‘hypertechnically.’ Rather, we consider whether, taken as a whole and read in a commonsense fashion, the [hearing evidence] adequately demonstrates that the informant has provided reliable information.” Commonwealth v. Alfonso A., 438 Mass. 372, 375, 780 N.E.2d 1244 (2003) (citation omitted).

1. Basis of knowledge. The specific detail concerning the defendant's exact location, ethnicity, clothing, and means of transportation provided by the CI here gives rise to the reasonable inference that the basis of his¹ knowledge was personal observation. That is, even though Detective Kalish did not explicitly testify to the CI's basis of knowledge, “[i]n context, it is apparent that the informant was reporting his own observation” where “the level of detail provided is consistent with personal observation, not mere recitation of a casual rumor.” Id. at 374, 780 N.E.2d 1244

. The CI described the clothing the defendant was wearing and the make and license plate of the automobile in which he would be a passenger as well as the race of its driver. In addition, the CI's information was current as of the moment he was relaying it. “The promptness of the information, the specificity of the observations, and the particularity of the detail as to location permitted the inference that the informant saw the drugs at the precise place stated.... This satisfies the basis of knowledge prong.” Commonwealth v. Alvarez, 422 Mass. 198, 207, 661 N.E.2d 1293 (1996)

. See Welch, supra at 651–652, 651 N.E.2d 392 (“From the level of detail, it could be inferred that the informant had direct knowledge of the defendant and of the criminal activity that was to take place on that evening”); Commonwealth v. Mendes, 463 Mass. 353, 364–365, 974 N.E.2d 606 (2012).

Moreover, where Sergeant Kent's observations confirmed the detail provided by the CI, “[a]ny deficiency in ascertaining the informant's basis of knowledge from the tip alone was adequately compensated for by independent police corroboration of the details of the tip.” Welch, supra at 652, 651 N.E.2d 392

. The basis of knowledge prong was satisfied.

2. Veracity. The Commonwealth introduced sufficient evidence of the CI's reliability to satisfy the veracity prong. First, Detective Kalish's past experiences with the CI demonstrated that the CI had provided reliable and accurate information in the past leading to arrests and seizures of narcotics and a firearm.² “The veracity test may be satisfied by demonstrating the credibility of the informant. That credibility, in turn, may be established by showing that information provided in the past by this informant has proved to be accurate.” Crawford, 410 Mass. at 79, 571 N.E.2d 7

. This is especially true where, as here, previous accurate tips have led to the seizure of illegal narcotics. Mendes, supra at 365–366, 974 N.E.2d 606 ; Commonwealth v. Perez–Baez, 410 Mass. 43, 45–46, 570 N.E.2d 1026 (1991).

Second, as noted above, the narcotics officers here were able to independently corroborate the detail that the CI had provided. “[D]etail, by itself, does not ordinarily...