By the Court (Berry, Green & Blake, JJ.), Clerk
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
Pursuant to leave granted by the single justice of the Supreme Judicial Court, see Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), the Commonwealth appeals from the allowance by a District Court judge of the defendant's motion to suppress evidence obtained by means of a warrantless search of the defendant. Upon our review of the record, including the oral findings of fact entered by the motion judge following an evidentiary hearing on the defendant's motion, we conclude that probable cause supported the arrest of the defendant and the warrantless search that occurred incident to that arrest. We accordingly reverse the order suppressing the evidence obtained.
"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. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The findings of fact entered by the motion judge, which the Commonwealth does not challenge, are set out in the margin.
"[O]n June 28 of this year at about 12:30 in the afternoon Detective Jonathan Lagoa of the New Bedford Police received a phone call . . . from a confidential informant. He knew the confidential informant, because he had used him in prior cases. Five cases that the detective testified to, one of which had led information to securing a warrant that led to ultimately a conviction of the individual in the Bristol Superior Court. On another occasion the informant had provided the detective with information regarding a Carl Robinson where he could be found, and there was an active superior court warrant.
"I do not find nor was it suggested that the . . . information led to the issuance of that warrant, but simply that the warrant existed, and the C.I. knew that the warrant existed, and where Robinson[] could be found.
"The detective also testified that the C.I. had been used for undercover buys, as well, in other cases that led to search warrants.
"The C.I. told the detective that . . . a male named DJ is going to be trying to sell a firearm in the vicinity of Merrimac and Pleasant Street in New Bedford at about 1:30 p.m. The C.I. advised the detective that DJ had been previously incarcerated, so he didn't have a license to carry; that DJ is a short white male who typically wears a white T-shirt and a black hat.
"With that information then Detective Lagoa went to the area of Merrimac and Pleasant. He alerted other officers, and Lieutenant Aguiar then arrived setting up near the location with Detective Lagoa going . . . a little farther away from the area.
"Detective Aguiar sees the male. The other piece of information the C.I. gave was that DJ would be coming to the City of New Bedford to sell this gun.
"Lieutenant Aguiar sees a white male leave a house on the north side of Merrimac Street near Pleasant and proceed down Pleasant Street.
"The white male is short. He is wearing a white T-shirt and a black hat, and he's carrying a shopping bag -- a white shopping bag that appears to have something inside of it, although the lieutenant could not see what was inside of it.
"The individual who was later identified as this defendant continues down Pleasant Street, and at which point about two or three blocks later around Pope and Pleasant Detective Lagoa sees him. This is about ten minutes after Lieutenant Aguiar had seen him.
"Lagoa gets out of his car, identifies him as a police officer, and under the belief that this individual -- the defendant -- is armed and dangerous, he takes him to the ground.
"The bag is opened, and in there is found a firearm and 200 rounds of ammunition.
"Also found on the defendant in a search incident to arrest was a pocket knife exceeding 2 1/2 inches, as well."
On those facts, the motion judge concluded, and the defendant does not dispute, that the veracity prong of the so-called Aguilar-Spinelli standard was met. See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). However, the motion judge concluded that the facts did not satisfy the requirement that the informant demonstrate a basis of knowledge for the incriminating information furnished to police. We disagree.
It is also undisputed that the information furnished by the informant, if reliable, sufficed to furnish probable cause to arrest the defendant, based on his possession of a firearm without a license.
The information furnished by the informant was specific and detailed. It included a physical description of the defendant, including his typical mode of dress, and predicted his arrival at a specific location at a specific approximate time for a specific illegal purpose. More importantly, those predictive details were corroborated by the observations by police of the defendant as he appeared in the predicted area at the predicted time; the defendant was dressed as described by the informant, and was carrying a bag that was weighed down by a heavy object, consistent with use of the bag to carry a firearm and ammunition. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 103-104 (1997), and cases cited. The prediction that the defendant would be at the forecast location for the illegal purpose of selling a firearm suggested the kind of "insider information" that has often been considered to satisfy the basis of knowledge prong. See, e.g., Commonwealth v. Welch, 420 Mass. 646, 651-652 (1995). Moreover, cause to believe the defendant was engaged in the alleged illegal conduct received further corroboration when the defendant "[b]ack pedal[ed]" upon encountering police. See Commonwealth v. Battle, 365 Mass. 472, 476 (1974). Cf. Commonwealth v. Va Meng Joe, supra at 105.
We consider unpersuasive the deviations from the informant's predictions cited by the defendant in his attempt to challenge the informant's reliability. The absence of reference by the informant to a bag as the means for the defendant to carry the firearm and ammunition to the point of sale is a detail trivial in nature, and practically obvious in its presence; in any event, the officer observed the bag straining with the weight of the heavy objects it contained, entirely consistent with use to carry a firearm and ammunition. The defendant's observed emergence from a dwelling in the predicted area, rather than his sudden arrival from outside of the city, suggests little; contrary to the defendant's contention, it was not clear that the informant in fact stated that the defendant would be arriving from outside the city, and in any event there is no reason to conclude that the defendant could not have arrived from outside the city and entered the dwelling undetected or before police began surveillance of the area. Finally, the location of sale described by the informant was specific, and the defendant's appearance in the general vicinity was sufficiently close to that destination as to render the distance from the specified location immaterial for purposes of calculating the reliability of the tip.
The order allowing the defendant's motion to suppress evidence is reversed, and the case is remanded to the District Court for further proceedings.
So ordered.
By the Court (Berry, Green & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 2, 2015.