Commonwealth v. Crawford

Abrams, J.

This is the second interlocutory appeal by the Commonwealth, from an order suppressing evidence seized without a warrant. See Commonwealth v. Crawford, 410 Mass. 75 (1991) (Crawford I). At issue in that case was *41whether the police had probable cause to arrest and search the defendants without a warrant, based on a confidential informant’s tip. Because the reliability of the confidential informant had not been established to the satisfaction of a judge in the Superior Court, the judge held an in camera hearing with the trooper out of the presence of defense counsel in order to assess the trooper’s confidential information. The judge later reconsidered the lawfulness of the in camera hearing, and ordered the evidence suppressed. In Crawford I, supra at 79, we could not determine whether, without reliance on the in camera hearing, the judge credited the officer’s testimony in open court that the informant had previously given information that had led to the arrest and indictment of two persons and the seizure of over one kilogram of cocaine. Consequently, we remanded the matter. On remand, the judge stated that he believed the officer’s testimony in open court. Having found the officer credible, the judge should not have suppressed the evidence. We reverse the allowance of the defendants’ motion to suppress.

Facts. On remand, the Commonwealth presented no new evidence, relying, instead, on the evidence presented at the original suppression hearing and Commonwealth v. Perez-Baez, 410 Mass. 43 (1991), which was decided after that original hearing.

At the original suppression hearing, the officer testified that he learned from a confidential informant that Crawford planned to receive a shipment of cocaine from New York on the evening of October 21, 1987. Crawford, himself, had told the informant of the plan. The informant said that Crawford’s girl friend would be arriving at South Station Amtrak terminal in Boston, sometime around midnight. The informant said Crawford planned to meet his girl friend in a grey Datsun Maxima automobile, Massachusetts registration 217MPC. Crawford I, supra at 76.

The officer testified that, shortly after 1 a.m., the Amtrak train from New York arrived at the station. Crawford was waiting at the station. He was not driving the Maxima automobile which was registered to him. He was driving a Dat*42sun Sentra automobile. Another man followed behind Crawford, driving the Maxima described in the tip. The driver of the Maxima approached two women who had come from the train. One of the women was the defendant Gail Pina. The three then walked toward Crawford. When the two women started to get into the Sentra, the officer intervened. In a pink travel bag Pina was carrying, the officer discovered two kilograms of cocaine. The officer also found cocaine in the Sentra and hidden in Crawford’s socks. Crawford I, supra at 76-77.

The officer further testified that the informant had, in the past year, given information which led to the arrest and indictment of two unnamed persons and the seizure of over a kilogram of cocaine. Crawford I, supra at 77, 79. On remand, the judge adopted his original findings of fact with one piece of additional information,2 and again allowed the defendants’ motion to suppress.

Discussion. The judge, in his written findings on remand, stated that he held the in camera hearing because he “determined that further details in support of the [confidential informant’s] reliability were required.” The judge also reiterated his belief that further details must be supplied by the Commonwealth. He concluded, “Since these details have not been lawfully supplied [apart from the ex parte hearing] by the Commonwealth,” the defendants’ motions to suppress must be allowed.

When information comes from a confidential informant, the judge" must be informed of “some of the underlying circumstances” regarding both the informant’s basis of knowledge and veracity. Commonwealth v. Upton, 394 Mass. 363, 375 (1985), citing Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). In Crawford I, we said, “There was testimony in open court which, if believed, would satisfy both prongs of the Upton test.” Craw*43ford I, supra at 78. See Commonwealth v. Perez-Baez, 410 Mass. 43 (1991) (decided after the original suppression hearing). However, we could not determine if the judge credited the officer’s testimony. Crawford I, supra at 78-79. On remand, the judge stated, “I believed the Trooper, period.” Thus, there was no basis to suppress the evidence. We reverse the judge’s order suppressing the evidence, and remand the case to the Superior Court for trial or for such other proceedings as may be needed.

So ordered.

According to the judge, one detail was omitted inadvertently from the original written findings: the informant told the trooper that the source of his information was the defendant Crawford.