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16-P-1021 Appeals Court
COMMONWEALTH vs. GIOVANNIE LUNA.
No. 16-P-1021.
Hampden. October 2, 2017. - December 5, 2017.
Present: Vuono, Meade, & Kinder, JJ.
Controlled Substances. Firearms. Practice, Criminal, Motion to
suppress. Probable Cause. Search and Seizure, Probable
cause, Motor vehicle, Inevitable discovery. Constitutional
Law, Probable cause, Search and seizure.
Indictments found and returned in the Superior Court
Department on May 12, 2015.
A pretrial motion to suppress evidence was heard by Edward
J. McDonough, Jr., J.
An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
James R. Goodhines for the defendant.
Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.
KINDER, J. The defendant has been charged with various
narcotics and firearm offenses. Following an evidentiary
hearing, a Superior Court judge denied, in large part, the
2
defendant's motion to suppress evidence. The defendant's
application to pursue an interlocutory appeal was allowed by a
single justice of the Supreme Judicial Court, who reported the
matter to this court.
On appeal, the defendant claims that (1) the judge erred in
concluding that the Springfield police officers had reasonable
suspicion to stop the defendant's vehicle and to pat frisk him,
(2) the subsequent warrantless search and seizure of heroin and
a firearm from a second motor vehicle was not supported by
probable cause or any exception to the warrant requirement, and
(3) the police officers lacked authority to conduct the second
search outside the city of Springfield. Because we conclude
that the Springfield police exceeded their territorial
jurisdiction in the execution of the second vehicle search, we
reverse so much of the order as denied the motion to suppress
evidence seized during that search.
Background. We summarize the pertinent facts from the
judge's findings on the motion to suppress, supplemented where
appropriate by uncontroverted suppression hearing testimony that
the judge explicitly or implicitly credited. See Commonwealth
v. Jones-Pannell, 472 Mass. 429, 431 (2015). In April of 2015,
Springfield police Officer Jaime Bruno, a narcotics investigator
with fifteen years' experience, was told by a confidential
informant that on April 15, 2015, an individual named "Gio,"
3
later identified as the defendant, would make a large delivery
of heroin at the intersection of Liberty Street and Denton
Circle in East Springfield at about noon that day. According to
the informant, Gio would be driving a black Mini Cooper
automobile, and the informant provided the license plate number.
The informant, with whom Officer Bruno had been in "constant
communication" for the preceding seven to eight months, had
previously provided information to Officer Bruno that resulted
in numerous seizures and arrests. The informant told Officer
Bruno that he1 had purchased heroin from Gio at that same
intersection on several occasions, and also within the last
seventy-two hours at Gio's residence at the Toll House
Apartments in West Springfield. Other officers confirmed that
the defendant lived at the Toll House Apartments, and informed
Officer Bruno that the defendant also had a residence at 122
Beauregard Terrace in Chicopee.
The Springfield police had previously received complaints
that nonresidents of the area were congregating at the
intersection of Liberty Street and Denton Circle. On the
morning of April 15, 2015, Officer Bruno went to that location
to see for himself. He observed two individuals standing at the
1
Although the gender of the informant is not disclosed, we
use the masculine pronoun for ease of reference.
4
intersection whom he had previously arrested for heroin
offenses.
Later that morning, at approximately 10:00 A.M.,
surveillance officers observed the defendant and a Hispanic male
leave the Toll House Apartments, place two large plastic
containers in the back seat of the Mini Cooper, and drive it to
122 Beauregard Terrace in Chicopee. There, the defendant
approached a red Honda automobile parked at the end of the
driveway, opened the trunk with a key, and retrieved a black
plastic bag the size of a softball. He then reentered the Mini
Cooper and drove in the direction of East Springfield.
The police followed in unmarked vehicles. When the Mini
Cooper was within approximately two miles of the intersection of
Liberty Street and Denton Circle, the defendant began driving in
an erratic manner. He drove up and down a number of side
streets with no apparent destination, suddenly stopping and then
accelerating beyond the speed limit. This unusual driving
caused Officer Bruno, based on his training and experience, to
conclude that the defendant was attempting to determine if he
was being followed.
The police stopped the Mini Cooper. Officer Bruno removed
the defendant and conducted a patfrisk for weapons. He felt a
large bulge in the defendant's pocket, which he recognized,
based on his experience and the size and texture of the objects,
5
as packets of heroin. He then removed a black bag from the
defendant's pocket, which appeared to be the one he had observed
the defendant remove from the trunk of the red Honda. Officer
Bruno also removed a set of Honda car keys and three cellular
telephones from the defendant's person.
The defendant was arrested. The defendant pleaded with
Officer Bruno for permission to telephone his girl friend;
Officer Bruno declined. Within minutes of the arrest, all three
cellular telephones seized from the defendant began to ring and
the unanswered calls continued for approximately ten minutes.
Concerned the delay in the defendant's arrival had alerted those
waiting for the delivery of heroin to a potential problem such
that the investigation had been compromised, Officer Bruno and
other officers returned to 122 Beauregard Terrace in Chicopee,
arriving within ten to fifteen minutes of the defendant's
arrest. When, after five minutes, no one responded to Officer
Bruno's announcement of police presence and knocks on two
different doors, officers entered the Honda using the keys
obtained from the defendant. Several bricks of heroin and a
firearm were seized from the trunk.
Prior to the vehicle search, Officer Bruno had requested
that Chicopee police officers provide a "'uniformed' police
presence at the scene given that the Springfield police officers
were in plain clothes in unmarked vehicles and they might not be
6
recognized as law enforcement." Chicopee police officers did
not arrive until after the search of the Honda.
Discussion. We review the judge's decision under familiar
standards. We accept the judge's factual findings unless they
are clearly erroneous. See Commonwealth v. Meneus, 476 Mass.
231, 234 (2017). However, we "make an independent determination
of the correctness of the judge's application of constitutional
principles to the facts as found." Commonwealth v. Durand, 475
Mass. 657, 664 (2016), cert. denied, 86 U.S.L.W. 3156 (2017),
quoting from Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).
1. The vehicle stop and arrest in Springfield. The
defendant claims that the heroin found in his pocket should have
been suppressed because the stop of the Mini Cooper was not
supported by reasonable suspicion. We disagree. A stop is
justified when police have a reasonable suspicion that the
person stopped is committing, has committed, or is about to
commit a crime. Commonwealth v. Silva, 366 Mass. 402, 405
(1974). The reasonable suspicion must be based on "specific and
articulable facts and the specific reasonable inferences which
follow from such facts in light of the officer's experience."
Id. at 406. When the stop is based on an unnamed informant's
tip, as in this case, "art. 14 requires that the information
satisfy the two-pronged standard set forth in Aguilar v. Texas,
378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410
7
(1969)." Commonwealth v. Welch, 420 Mass. 646, 650 (1995).
The Commonwealth must demonstrate the veracity of the informant
and his basis of knowledge. Ibid. "Independent police
corroboration may make up for deficiencies in one or both of
these factors." Commonwealth v. Mubdi, 456 Mass. 385, 396
(2010) (quotation omitted).
An informant's veracity may be shown by "underlying
circumstances from which . . . the law enforcement officials
could have concluded the informant was credible or reliable."
Commonwealth v. Escalera, 462 Mass. 636, 645 n.8 (2012), quoting
from Commonwealth v. Cast, 407 Mass. 891, 896 (1990). Here, the
informant had a proven track record. He had provided
information to Officer Bruno on more than fifty prior occasions
in the preceding seven to eight months. The information
provided by the informant led to "well over fifteen" seizures of
drugs, resulting in multiple convictions. We agree with the
judge's conclusion that this evidence sufficiently established
the informant's veracity. See Commonwealth v. Robinson, 403
Mass. 163, 165 (1988) ("The informant's past record of supplying
credible information satisfies the reliability prong").
As to the second prong of the Aguilar-Spinelli standard, a
prior purchase of drugs by an informant can satisfy the basis of
knowledge test. Commonwealth v. Montanez, 410 Mass. 290, 299-
300 (1991). See Commonwealth v. Ilges, 64 Mass. App. Ct. 503,
8
508 (2005). Here, the informant reported that he had purchased
heroin on several occasions from the defendant, whom he knew by
name, both at the intersection of Liberty Street and Denton
Circle, and also at the defendant's residence, which he
identified by address. Moreover, it was reasonable to infer
from the informant's detailed information that he had direct
personal knowledge of the defendant's heroin distribution. See
Commonwealth v. Mendes, 463 Mass. 353, 365 (2012) (level of
detail in informant's description consistent with firsthand
knowledge). He described a transaction that was to occur at a
specific intersection at a definite time and reported the make,
color, and license plate number of the vehicle the defendant
would be driving. Independent police investigation confirmed
that the defendant lived at the address provided by the
informant, and had a second address in Chicopee. Police also
confirmed that the Mini Cooper described by the informant was
registered to the defendant's girl friend.
The information provided by the informant was further
corroborated when, approximately one hour before the drug
transaction was to occur, police observed the defendant leave
the Toll House Apartments in the Mini Cooper, drive to his
residence at 122 Beauregard Terrace in Chicopee, take a
softball-sized black bag from the Honda, and then drive in the
direction of the transaction predicted by the informant. While
9
following the defendant, the police reasonably concluded that he
was engaged in counter surveillance as he drove evasively
through a residential neighborhood. In these circumstances, the
judge correctly concluded that the police had more than
reasonable suspicion to stop the defendant -- they had probable
cause to arrest him.
"[P]robable cause exists where, at the moment of arrest,
the facts and circumstances within the knowledge of the police
are enough to warrant a prudent person in believing that the
individual arrested has committed or was committing an offense."
Commonwealth v. Charley, 91 Mass. App. Ct. 223, 228 (2017),
quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979),
cert. denied, 446 U.S. 955 (1980). We consider the entire
"silent movie" in a practical and nontechnical way, through the
eyes of an experienced narcotics investigator. Commonwealth v.
Santaliz, 413 Mass. 238, 242 (1992). Applying these principles,
we conclude that the information received from the informant,
corroborated by police investigation and the defendant's
attempts to evade surveillance, established probable cause that
he was committing a drug offense. Because the police had
probable cause to arrest the defendant at the time they stopped
the Mini Cooper, the search of the defendant's person was
10
permissible incident to that lawful arrest. See Commonwealth v.
Blevines, 438 Mass. 604, 608 (2003).2
2. Search of the Honda in Chicopee. The defendant
challenges the warrantless search of the Honda in Chicopee on
multiple grounds. Because we agree with the defendant that, in
the circumstances presented here, the Springfield police lacked
authority to conduct a warrantless vehicle search outside their
jurisdiction, we limit our discussion to that issue.3
It is well settled that "[a] police officer lacks authority
to act outside his or her jurisdiction, unless specifically
authorized by statute or in the performance of a valid citizen's
arrest at common law." Commonwealth v. Twombly, 435 Mass. 440,
442 (2001). The Commonwealth argues that the police had
statutory authorization here. Specifically, the Commonwealth
cites G. L. c. 276, § 2A, for the proposition that searches can
be broadly executed by any State, county, or local law
enforcement officer.4 While it is true that G. L. c. 276, § 2A,
2
Because we conclude that the police had probable cause to
arrest the defendant, and the search of his person was incident
to that lawful arrest, we need not address the defendant's
arguments related to the exit order and the patfrisk of his
person.
3
The defendant also argues that the police lacked probable
cause to search the Honda and that there were no exigent
circumstances justifying the warrantless search.
4
General Laws c. 276, § 2A, entitled "Form of warrant,"
provides that search warrants issued by courts "shall be in
11
implicitly authorizes any Massachusetts law enforcement officer
to execute search warrants anywhere in the Commonwealth, the
clear language of the statute applies only to searches executed
pursuant to a warrant. It does not apply to warrantless
searches like the one in this case. The Commonwealth cites no
authority, and we have found none, permitting a warrantless
search by a Massachusetts police officer acting outside his
territorial jurisdiction.
Here, it is undisputed that the warrantless search of the
Honda was conducted by the Springfield police in the city of
Chicopee, outside the territorial jurisdiction of the
Springfield police department. Although the Chicopee police
were called for assistance, they were not involved in the
investigation and were not present at the time the search was
conducted. Thus, the Springfield police acted outside their
authority, and the contraband seized from the Honda in Chicopee
should have been suppressed. See Commonwealth v. Lahey, 80
Mass. App. Ct. 606, 610 (2011) ("The appropriate remedy for
unauthorized extraterritorial action is suppression of the
resulting evidence").
substantially the following form: . . . To the Sheriffs of our
several counties, or their deputies, any State Police Officer,
or any Constable or Police Officer of any city or town, within
our said Commonwealth . . . [we] command you . . . to make an
immediate search . . . ." G. L. c. 276, § 2A, inserted by
St. 1964, c. 557, § 3.
12
For the first time on appeal, the Commonwealth argues that
even if the police exceeded their territorial authority, the
exclusionary rule should not apply because the evidence seized
from the Honda would have inevitably been discovered. The
Commonwealth's theory of inevitable discovery is that the
Chicopee police, upon their arrival, would have conducted a
lawful search of the Honda within their territorial
jurisdiction. We are not persuaded.
"[T]he Commonwealth has the burden of proving the facts
bearing on inevitability by a preponderance of the evidence."
Commonwealth v. Ubilez, 88 Mass. App. Ct. 814, 817-818 (2016),
quoting from Commonwealth v. Perrot, 407 Mass. 539, 547 (1990).
"The motion judge's findings [on inevitable discovery] should be
specific and detailed." Lahey, supra at 613. "Once the
relevant facts are found by a preponderance of the evidence, the
question is whether on those facts discovery by lawful means was
certain as a practical matter." Commonwealth v. O'Connor, 406
Mass. 112, 117 (1989). "The test of inevitability should be
made on the circumstances existing at the time of the unlawful
seizure." Id. at 117 n.4.
Even assuming there was a lawful basis to search the Honda
without a warrant,5 a question we do not reach, we cannot
5
The Commonwealth contends there was probable cause to
search the Honda and exigent circumstances justifying a
13
conclude that a lawful search by the Chicopee police was
"virtually certain." Perrot, supra. Indeed, at the time the
search was conducted by the Springfield police, even the arrival
of the Chicopee police, although anticipated, was not certain.
Moreover, because the theory of inevitable discovery was not
advanced at the suppression hearing, the Commonwealth did not
elicit testimony to support it, and the judge's comprehensive
memorandum of decision included no findings related to
inevitable discovery. Accordingly, on the record before us, we
cannot conclude that "discovery by lawful means was certain as a
practical matter." O'Connor, supra.
Conclusion. So much of the order as denied the defendant's
motion to suppress evidence seized from the Honda in Chicopee is
reversed. In all other respects, the order is affirmed.
So ordered.
warrantless search. The Commonwealth also argues that the
automobile exception should apply in these circumstances even
though the Honda was parked on private property. We note that
the Supreme Judicial Court "ha[s] not previously addressed
whether the automobile exception to the warrant requirement may
justify a search of an automobile parked within the curtilage of
a defendant's home." Commonwealth v. Fernandez, 458 Mass. 137,
146 n.13 (2010).