Commonwealth v. Spence
Commonwealth v. Spence
Opinion of the Court
The defendant appeals from his conviction of possession of heroin with intent to distribute on the ground that the search of the defendant’s person and the seizure of the heroin was unlawful and that the seized evidence should have been suppressed. We transferred the case from the Appeals Court on our own motion. We reverse.
We summarize the facts as found by the judge on the motion to suppress. On August 19,1986, at about 3 p.m. , State Trooper William Johnson received a telephone call from a secretary in
Trooper Johnson, who had been involved in an investigation of drug trafficking at Logan Airport, proceeded to the Eastern Airlines terminal in the company of another trooper.
Trooper Johnson followed the defendant to the upper terminal. He asked the defendant if he could speak with him. The defendant agreed. The defendant provided Johnson with his name, but he could produce no identification. The defendant did not respond when Johnson asked him about the bulge. The trooper then frisked the defendant and felt a hard object about the size of a package of cigarettes. Johnson reached into the defendant’s pants and recovered a number of glassine packages of heroin tightly wrapped in newspaper.
The sole issue on appeal is whether there was probable cause to support the arrest and search of the defendant’s person. See Commonwealth v. Robinson, ante 163 (1988). The judge below noted in his memorandum of decision on the motion to suppress, neither the informant’s reliability nor the basis for his knowledge was established by the informant during the course of the telephone call. Thus, to satisfy the Aguilar-Spinelli test, the details of the informant’s tip must be corroborated by the police officer’s independent observation.
Turning to the question of the informant’s reliability, we conclude that the independent police corroboration of the details of the informant’s tip was not sufficient to satisfy this prong of the Aguilar-Spinelli inquiry. To determine the adequacy of the independent police corroboration of the informant’s tip, we rely on the principles expressed in Draper v. United States, 358 U.S. 307 (1959). See Commonwealth v. Robinson, supra at 166; Commonwealth v. Bottari, 395 Mass. 777, 784 (1985); Commonwealth v. Avery, 365 Mass. 56, 63 (1974); Commonwealth v. Kane, 362 Mass. 656, 659 (1972); Commonwealth v. Stevens, 362 Mass. 24, 27-28 (1972).
In this case, the informant described only the defendant’s race. The informant also only stated that either Williams or his companion would be carrying a large amount of heroin in his crotch area; the fact that the informant could not identify which man would actually be carrying the narcotics undermines his reliability. The informant’s ability to describe in some detail the height and clothing of Spence’s companion does not cure the deficiencies in the informant’s description of the defendant. The fact that the defendant was travelling with an individual whom the informant was able to describe does not indicate anything about the reliability of the informant’s tip concerning the defendant.
So ordered.
Although not noted in the judge’s findings, Johnson, who was dressed in plain clothes, was accompanied by a uniformed trooper.
Although Trooper Johnson’s experience suggested that individuals involved in drug transportation are often the first or last passengers to leave the plane, that behavior is not necessarily consistent with criminal behavior because someone must always leave the plane first and last.
This case is similar to Commonwealth v. Bottari, supra, and Commonwealth v. Borges, 395 Mass. 788 (1985). In Bottari, the informant only told the police that the defendant would be parked in a 1978 Oldsmobile automobile with a particular license plate in a particular Somerville parking lot. The informant did not describe the defendant in any detail, and, indeed, the police arrested two individuals in the automobile. In that case we determined that “[t]he information provided and the limited corroboration of innocuous details in unsuspicious circumstances were insufficient to support probable cause . . . .” Bottari, supra at 784. In Borges, this court determined that there was no probable cause for an arrest where the reliability prong of the Aguilar-Spinelli inquiry was satisfied only by a description of the defendant’s appearance and clothing. Borges, supra at 795. In this case, the informant provided even less detailed information about the defendant’s physical appearance, and only sketchy detail about his expected behavior,including whether he even would be transporting the narcotics.
The Commonwealth does not argue that the police officers had reason to believe that their safety or that of others was endangered. Thus, the search in this case cannot be sustained under Terry v. Ohio, 392 U.S. 1 (1968).
Dissenting Opinion
(dissenting). I dissent. The court today is persnickety to the point of exasperation in its demands on the police. The defendant admittedly “fit the description provided by the informant,” ante at 180, down to the bulge in the crotch area of his pants. There was sufficient independent police corroboration.
Reference
- Full Case Name
- Commonwealth vs. Dana A. Spence
- Cited By
- 13 cases
- Status
- Published