Opinion
19-P-728
10-23-2020
COMMONWEALTH v. Davidson ALTIMO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Davidson Altimo, entered a conditional guilty plea, see Commonwealth v. Gomez, 480 Mass. 240, 252 (2018), and Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019), to possession of a large capacity firearm, G. L. c. 269, § 10 (m ), and carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ). Having reserved his appellate rights, see Gomez, supra, he appeals from an order of a Superior Court judge denying his motion to suppress evidence obtained from a warrantless search. We affirm.
1. Background. We summarize the facts as found by the motion judge, "supplementing with additional facts as necessary from testimony and evidence that the judge implicitly credited." Commonwealth v. Lariviere, 98 Mass. App. Ct. 440, 441 (2020). On September 27, 2016, Henry Oquendo was shot in the leg as he sat on the front porch of 27 Longfellow Terrace in Springfield (first shooting). He told the police that he thought the shot came from a car driving by, but did not provide any other information. When the police arrived, a number of other people were present, including Jesus Oquendo, Henry's brother, who was on the second-floor open porch. Some of the people at the scene were known by the police to be members of the "Eastern Ave" gang. As part of the investigation into the first shooting, Detective Matthew Longo viewed surveillance video of the street in front of 27 Longfellow Street, taken from a camera a few houses away. The video showed that shots were fired from a gray Nissan sedan.
Because certain individuals share a surname, we use first names for clarity.
Three days after the first shooting, the defendant, who was also known as "G-baby," was shot as he walked toward the Family Dollar store on Main Street in Springfield (second shooting). The defendant was known to the police to be a member of the "Sycamore Street" gang, a rival gang of the Eastern Ave gang. The defendant was not at the scene when the police arrived. The police learned that he was taken to an unspecified hospital by his girlfriend in her gray Nissan Altima.
In connection with the second shooting, Detective Jose Canini reviewed closed circuit television footage and determined that a group of men believed to be involved in the second shooting got out of a car on Oswego Street. Detective Canini went to that location where he encountered some of the same people who had been present at the first shooting, including Jesus. Initially, Jesus was reluctant to talk to Detective Canini, but eventually told him that G-baby was the person who shot Henry and that the second shooting was in retaliation for the first shooting.
As part of their investigation, detectives learned that a gray Nissan Altima was registered to the defendant's girlfriend. Detective Longo compared the car in the surveillance video from the first shooting to the Nissan registered to the defendant's girlfriend and concluded they were one and the same. In addition, the detectives confirmed that the defendant had been stopped in his girlfriend's Nissan Altima at least twice, most recently one month before the first shooting.
On the day of the stop, the detectives who were investigating the shootings were assisting other police officers in an unrelated motor vehicle stop when they saw a Nissan Altima drive past them; the defendant was seated in the front passenger seat. They followed the Nissan with the intention of stopping it, identifying the occupants, and further investigating the shootings. After the stop, the driver reached toward the console and the defendant reached toward the glove compartment. Based on these actions, and out of concern for their safety, the detectives ordered the occupants to exit the car; they conducted a patfrisk of the occupants and a protective sweep of the car. The firearm that is the basis for the convictions was found in the glove compartment.
2. Discussion. The defendant claims that the police lacked reasonable suspicion to justify the investigatory stop of the Nissan and, accordingly, his motion to suppress should have been allowed. "When reviewing a decision on a motion to suppress, we accept the judge's findings of fact absent clear error, but make an independent determination whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Evans, 87 Mass. App. Ct. 687, 688 (2015), citing Commonwealth v. Lyles, 453 Mass. 811, 814 (2009). "An investigatory automobile stop requires that the Commonwealth prove that the officer ‘ha[d] a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.’ " Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Reasonable suspicion must be based on specific, articulable facts and reasonable inferences. Commonwealth v. Manha, 479 Mass. 44, 46 (2018).
Here, the defendant argues that Jesus's tip to the police was insufficient because it failed to satisfy the two-pronged Aguilar-Spinelli test that requires the court to assess the informant's veracity and basis of knowledge. "[I]f the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of these factors. Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Lyons, 409 Mass. at 19.
See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).
We agree with the motion judge that the stop of the Nissan was based on reasonable suspicion that the defendant was involved in the first shooting. Jesus's tip carried an indicia of reliability because he was not anonymous, and he could be located by the police. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 103-104 (1997). The defendant likens Jesus's statements to the police to those of an informant or a tipster, but this characterization is inapt because Jesus was not only known to the police, but he was a direct witness to the shooting. "When assessing the reliability of citizens who report apparent violations of the law, we accord more weight to the reliability of those who are identified. ... The rationale for according more weight to the reliability of identified persons is that they ‘do not have the protection from the consequences of prevarication that anonymity would afford,’ and consequently may be subject to charges of filing false reports and risk retaliation. ... It applies with the same force to informants who knowingly place their anonymity at risk when they communicate information to the police, as it does those whose identities are specifically provided." Commonwealth v. Costa, 448 Mass. 510, 515-516 (2007), quoting Commonwealth v. Love, 56 Mass. App. Ct. 229, 234 (2002). Indeed, a citizen witness to a violent crime, like Jesus, may "be regarded as reliable without any prior demonstration of his reliability." Commonwealth v. Bowden, 379 Mass. 472, 477 (1980), citing United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977).
Not only was Jesus named and known to the police, his identity was contained within a police database, and the police had two addresses for him, one of which he was located at during the course of the investigation. Indeed, "police knowledge of the identity and whereabouts of an informant" are factors that support the veracity prong. Commonwealth v. Alfonso A., 438 Mass. 372, 375 (2003). As such, we accord more weight to the reliability of a named informant. See Commonwealth v. Atchue, 393 Mass. 343, 347-348 (1984).
Although the information that Jesus provided to the police was lacking in detail, it was reliable in that his statement that G-baby shot his brother was based on Jesus's firsthand observations of the shooting. See Commonwealth v. Alvarado, 423 Mass. 266, 271 (1996) (informant's personal knowledge may be inferred from facts and circumstances surrounding tip). Here, the police observed Jesus shortly after the first shooting in a position where he could have witnessed the shooting. See Bowden, 379 Mass. at 475 n.2 (witness's location and description of assailant were sufficient to infer personal knowledge). Although Jesus's statement was brief, it was specific. Under the circumstances, Jesus's reluctance to talk to the police, in what can best be described as gang related shootings, is understandable. Moreover, evaluation of an informant's tip "is not to be applied ‘hypertechnically.’ " Alfonso A., 438 Mass. at 375, quoting Commonwealth v. Upton, 394 Mass. 363, 374 (1985).
The defendant claims that the judge's finding that Jesus had personal knowledge of the first shooting was clearly erroneous because it was "in contrast to the judge's position at argument." This is belied by the record as the judge, when testing the Commonwealth's theory, suggested that information could have come from word on the street; however the judge did not adopt this argument.
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Where there are deficiencies in an informant's tip, independent police investigation can compensate for such deficiencies in either or both prongs of the Aguilar-Spinelli test. See Commonwealth v. Tapia, 463 Mass. 721, 730 (2012). "Independent corroboration is relevant only to the extent that it was known to the police before the stop was initiated." Commonwealth v. Depiero, 473 Mass. 450, 456 (2016), quoting Commonwealth v. Anderson, 461 Mass. 616, 623 (2012). Here, the detectives corroborated the information provided by Jesus, which included a review of the surveillance video from the first shooting, the color and appearance of the car registered to the defendant's girlfriend, and the defendant's access -- in fact recent access -- to the car. Taken together, these facts and the inferences drawn from them support a conclusion that Jesus was both reliable and had a sufficient basis of knowledge. See Atchue, 393 Mass. at 347-349.
Accordingly, the police had the following information before stopping the Nissan: Jesus's statement that the defendant shot his brother, the rival gang affiliations that led to the shootings, the video of shots being fired from a gray Nissan sedan at the first shooting, the defendant's access to his girlfriend's gray Nissan and its likeness to the Nissan in the video, and the defendant's presence in the front passenger seat of the Nissan just prior to the stop. This constellation of facts and circumstances equated to sufficient specific and articulable facts to justify the stop. Therefore, the defendant's motion to suppress was properly denied.
Judgments affirmed.