Opinion
15-P-365
04-22-2016
COMMONWEALTH v. JULIO BURGADO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following an investigation conducted by members of the Southeastern Massachusetts Gang Task Force, the defendant was charged with trafficking in heroin having a net weight of 200 grams or more, G. L. c. 94C, § 32E(c)(4). Prior to trial, he filed a motion to suppress evidence, including the heroin seized by the State police from his person during the stop of a vehicle in which he was a passenger. A judge of the Superior Court allowed the motion, ruling that the police lacked probable cause to stop the vehicle and that, even if the stop was lawful, there was no probable cause or other justification for searching the defendant. The Commonwealth was granted leave to pursue an interlocutory appeal to this court by a single justice of the Supreme Judicial Court. For the reasons that follow, we affirm the order allowing the defendant's motion to suppress.
The defendant also sought to suppress a statement he made during the booking procedure in which he said his nickname was "Flacco."
Background. We set forth the facts as found by the motion judge supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). On October 24, 2012, Detective Jason Gangi of the New Bedford police department spoke with a confidential informant (CI-1) who reported that a man known to him as "Flacco" was operating a narcotics delivery service between Boston and New Bedford. The judge found that CI-1 had been cooperating with the New Bedford police for four years. In 2008, CI-1 supplied information that led to the arrest of two or three individuals who had outstanding warrants. In October, 2012, he provided information that resulted in the seizure of an illegal firearm and to an arrest for a stabbing.
The gender of the confidential informants was not disclosed. We use the male pronoun for convenience. See Commonwealth v. Shaughessy, 455 Mass. 346, 348 n.4 (2009).
We have reviewed Detective Gangi's testimony and agree with the Commonwealth that the judge's finding that CI-1's information did not lead to the seizure of a firearm is clearly erroneous.
CI-1 described Flacco as a tall, skinny Hispanic man with dark skin. He told Detective Gangi that Flacco used "livery vehicles" (small limousines or taxicabs) to make his deliveries and claimed he had been present at multiple deliveries. CI-1 said that Flacco would make a delivery of drugs in the area of Nye Street in the North End of New Bedford on the night of October 24, 2012.
Detective Gangi was close to the area when he received the information about the delivery and proceeded to drive to Nye Street where he observed a black Lincoln Town Car with livery license plates leaving the intersection of Acushnet Avenue and Nye Street. The vehicle was followed to the Dorchester section of Boston where officers conducting surveillance observed a male passenger get out of the car in the area of Washington and Kenwood Streets. Detective Gangi did not identify the man or describe his appearance. The vehicle then traveled to 41 Lindsey Street at which time surveillance was ended. Later, Detective Gangi learned that the vehicle was registered to, and driven by, Amabile Diaz, who had an open case for trafficking.
Approximately six weeks later, during the first week of December, 2012, CI-1 provided Detective Gangi with additional information about Flacco's drug activity. He said that Flacco would be delivering narcotics or money that day on Collette Street in New Bedford. Detective Gangi set up surveillance and saw a white Lincoln Town Car with a livery license plate stop at an intersection on Collette Street for about ten minutes. Given his location, Detective Gangi was not able to identify the driver or determine whether there were any passengers. He proceeded to follow the vehicle as it traveled north on Route 140 and Route 24 until the driver turned onto Route 128. The vehicle was registered to Yocastra Arias.
The prosecutor did not ask Detective Gangi when he saw the white Lincoln and this detail was not volunteered.
A few days later, on December 10, CI-1 told Detective Gangi that Flacco had a stash house at 9 Brent Street in Dorchester. Although CI-1 had not seen any drugs at that location himself, he was able to identify the house from a photograph.
On that same day, Detective Gangi spoke to a second confidential informant (CI-2) who, like CI-1, had cooperated with the police for about four years. In 2009, CI-2 supplied information to the police which led to the seizure of heroin and cocaine. Later that year, CI-2 provided information that led to multiple arrests and one conviction. In 2011, CI-2 assisted police in an investigation involving illegal firearms. That investigation resulted in multiple arrests and convictions. Then, in May, 2012, CI-2 provided information which led to the discovery of drugs and an arrest.
CI-2 also had information regarding Flacco's illegal drug activity. He told Detective Gangi that within the past several months, he had seen narcotics packaged for sale at 9 Brent Street, the same location that CI-1 had claimed was a stash house used by Flacco. On December 19, 2012, CI-2 reported that Flacco, whom he described as a tall, dark-skinned Hispanic male, would make a "delivery" in the North End of New Bedford. Detective Gangi arranged for surveillance and, at approximately 8:30 P.M, officers observed the same white Lincoln Town Car that Detective Gangi had seen on Collette Street two weeks earlier leaving 9 Brent Street. According to Detective Gangi, none of the surveillance officers saw anyone matching Flacco's description get into the car. The vehicle was on Route 195 approaching New Bedford at about 9:30 P.M. when it was stopped by State Police Troopers Stephen Culber and Christopher Theodore. Neither Trooper Culber nor Trooper Theodore were assigned to the investigation; they stopped the vehicle based on the order of Trooper Brian Anderson, who observed the vehicle near Bridgewater and followed it to Fall River and then onto Route 195 eastbound.
Detective Gangi did not provide a time frame for the delivery. Furthermore, he did not know the type of drug or the quantity of drugs Flacco would deliver.
The vehicle was stopped without incident. When the troopers approached, the driver, who was identified as Joel Pagan, was removed and searched. No weapons or drugs were found. Pagan told the troopers that he was taking the defendant to Nye Street. Trooper Culber then removed the defendant, who was sitting in the back seat, and frisked him. No weapons or contraband were found on the defendant at that time. The defendant was then instructed to sit on the shoulder of the highway. The judge found that the defendant appeared nervous and did not make eye contact with the troopers.
During the course of the vehicle stop, Trooper Anderson arrived with Trooper Marc Cyr. Trooper Anderson approached the defendant and asked him where he was headed. The defendant first said he was going to a friend's house on Nye Street and then said that he was going to his girlfriend's house, also on Nye Street. Meanwhile, the troopers searched the vehicle and did not find anything. The defendant was moved away from the vehicle to permit a dog trained in the detection of narcotics to search the vehicle, but before that search commenced, Trooper Anderson asked the defendant if he had any drugs to which the defendant replied "no." Trooper Anderson then searched the defendant and found a bag the size of a grapefruit in the groin area of the defendant's pants. The bag contained 400 grams of heroin. The defendant was arrested and transported to the barracks in Dartmouth. During the booking procedure, the defendant said that he was called "Flacco."
On the basis of these facts, the judge found that the information known to the police when they stopped the white Lincoln was sufficient to "raise suspicion" but did not establish probable cause to believe that the vehicle contained narcotics. As the judge correctly noted, for statements of confidential informants to be used in the assessment of probable cause, the Commonwealth must satisfy the Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). "[T]he 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. Tapia, 463 Mass. 721, 729 (2012), quoting from Commonwealth v. Cast, 407 Mass. 891, 896 (1990). Independent police corroboration can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli test. Commonwealth v. Cast, supra.
The judge found that the Commonwealth failed to demonstrate that CI-1 was reliable because the information he provided to police in the past had led only to arrests and not convictions. He also concluded that CI-1's basis of knowledge was inadequate because he did not sufficiently identify "Flacco" and never identified the white Lincoln as a vehicle that the person known as Flacco used to transport drugs. In addition, the judge noted that because the police never observed any drug activity and never placed Flacco in the white Lincoln (or at Brent Street) there was no independent corroboration of the information from the confidential informants.
As regards CI-2, the judge likewise found that the information he provided lacked an adequate basis of knowledge because CI-2 did not indicate where Flacco was coming from or how he would be transporting drugs to New Bedford. Unlike CI-1, however, the judge determined that the Commonwealth had established that CI-2 was reliable.
The judge went on to conclude that, even if the stop of the motor vehicle was supported by probable cause, the police had no authority to search the defendant who was "merely . . . a passenger" and had not been recognized by the police as the person that CI-1 and CI-2 described as Flacco. Finally, the judge found the initial exit order and patfrisk of the defendant were unlawful because there was no basis upon which to conclude that the safety of the police or other persons was in danger. Given our conclusion that there was no probable cause to stop the vehicle, we need not address the judge's alternative rulings.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Perkins, 465 Mass. 600, 601 (2013), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The Commonwealth first contends that the motion judge erred in concluding that CI-1 did not satisfy the veracity prong of the Aguilar-Spinelli test. We agree. Our cases do not require that an informant provide information resulting in a conviction as opposed to an arrest in order to be deemed reliable. See Commonwealth v. Valdez, 402 Mass. 65, 70-71 (1988) (providing information in the past as to the whereabouts of an individual wanted on an outstanding warrant was sufficient to satisfy the veracity prong). Here, CI-1's prior cooperation, which resulted in at least three arrests and the confiscation of a firearm, was sufficient to meet the veracity prong of the Aguilar-Spinelli test.
Next, the Commonwealth claims that the confidential informants provided the police with mutually corroborative information which was based on personal knowledge and, as such, the basis of knowledge prong of the test was satisfied. See Commonwealth v. Allen, 406 Mass. 575, 578 (1990) ("First-hand receipt of information through personal observation satisfies the basis of knowledge prong"). We do not disagree with this assertion entirely. It is reasonable to infer that both confidential informants had some first-hand knowledge of Flacco's drug distribution scheme. But, that is not the end of our inquiry. In order to determine whether probable cause existed, we must further decide whether the information was sufficient to warrant a "prudent" person in believing that (1) there were narcotics in the vehicle at the time of the stop and (2) the individual sitting in the back seat of the vehicle was the man known to the informants as Flacco. See Commonwealth v. Gouse, 461 Mass. 787, 792 (2012).
In the present case, the facts known to the police about Flacco's drug activity failed to meet the probable cause standard. To begin with, the police had no information regarding Flacco's identity or contact information other than a common nickname. Moreover, the physical description provided by the confidential informants was general in nature and did not include details such as age or hair style which would distinguish the man known as Flacco from other tall, skinny Hispanic men. There was no information regarding Flacco's method of operation other than the use of livery vehicles, which were not described by make, model, color, or year. There was no specific information regarding the type or quantity of drugs Flacco was allegedly distributing, the route of travel between Boston and New Bedford, the timing of the deliveries or the persons with whom Flacco associated in connection with his narcotics deliveries. The police did not observe any drug related or suspicious activity at 9 Brent Street; in fact, no one matching Flacco's description was seen at that address during surveillance. Contrast Commonwealth v. Bakoian, 412 Mass. 295, 301-302 (1992) (police had probable cause to believe that a certain automobile contained heroin where informant stated the exact identities of the persons occupying the vehicle, their exact destination, and the approximate time frame within which they would arrive at the destination location and the police corroborated nonobvious and predictive details provided by the informant); Commonwealth v. Russell, 46 Mass. App. Ct. 513, 517-519 (1999) (probable cause existed where confidential informants provided identical interlocking information identifying the defendant, the drug he sold, and the location from which he sold the drug, and informant information on a ring in the defendant's possession and a car owned by one of the defendant's cocaine customers was confirmed in part by independent police work).
Order allowing motion to suppress affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 22, 2016.