Commonwealth v. Crawford
Commonwealth v. Crawford
Opinion of the Court
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
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
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,
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
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.
Dissenting Opinion
(dissenting). I respectfully dissent from the court’s decision because I believe that it misinterprets our decision in Commonwealth v. Crawford, 410 Mass. 75 (1991) (Crawford I), and also implicitly approves of the inappropriate conduct of the assistant district attorney.
Today this court states that, “[i]n Crawford I, ... 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 . . . cocaine.” Ante at 41. The court’s statement is clearly refuted by the language used in Crawford I.
In Crawford I, supra at 79, we stated:
“[I]t is apparent from the record that the judge was not entirely convinced that the officer was being candid in his testimony in open court. The officer refused to reveal the names of the two individuals arrested pursuant to the informant’s prior tip. The prosecutor suggested that the officer tell the judge the names of the individuals in-camera, so as not to compromise the informant. The officer did so and the judge was then apparently convinced that the officer was telling the truth. Later, the judge decided that the in-camera hearing was inappropriate and returned to his prehearing conclu*44 sion, that he was unconvinced by the trooper’s statements concerning the informant’s reliability.” (Emphasis supplied.)
As I read the quoted language, we indeed did conclude that apart from the inappropriate in camera hearing with the trooper, the judge determined that the veracity prong of the Upton test (Commonwealth v. Upton, 394 Mass. 363 [1985]) had not been satisfied because the officer had not provided enough specific details regarding the past arrests and seizures.
We remanded the case in Crawford I, in essence, to give the Commonwealth another chance at establishing probable cause “in a manner consistent with the defendant’s rights.” See Crawford I, supra at 80. We noted that a hearing should take place on remand in which the prosecutor and defense attorneys should participate. Id. We stated that, “[i]f, in the presence of the defendant’s attorney, the officer reveals the information required to satisfy the judge, the evidence should not. be suppressed” (emphasis supplied). Id. We were not concerned with the officer’s credibility and did not remand the case for the judge to make findings regarding his credibility, as the court suggests today, ante at 41. Indeed, the misconception that we remanded in Crawford I for the judge to make findings regarding the officer’s credibility was created by the assistant district attorney.
The judge stated at the hearing on remand, “I want to state it plain. I believed the Trooper, period. I didn’t have any trouble with his veracity.” In his memorandum and order after that hearing, the judge wrote that “there continue [ ] to be no details regarding the basis of the [informant’s] reliability. ... In order for reliability to be
The prosecutor refused to participate in a further hearing where the officer could have testified and would have had an opportunity to reveal, in the presence of counsel, the information necessary to satisfy the requirements of Upton, despite our clear directive in Crawford I, supra at 80. There are two important issues here. The first is the veracity of the informant, not of the officer. See Crawford I, supra at 78 (“The crux of the case, therefore, is whether the officer could properly rely upon the information provided by the informant”). The other important issue that caused the remand was the Commonwealth’s successful request that an in camera hearing be held in the absence of counsel, a procedure we described in Crawford I as “inappropriate,” id. at 79, and the judge, on remand, described as a procedure he thought was “cuckoo.”
Today the court announces that, if a police officer makes a bald assertion that an informant previously has provided information leading to arrest and drug seizure, without providing details in support of this assertion, even when the judge requests those details, then the veracity prong of Upton is satisfied.
At the hearing after remand, the judge stated the following, in reference to his probable cause findings following the first hearing on the motion to suppress:
“When I tried the case on the motion to suppress, after [the prosecutor] had put in most of her case I think, if my memory is correct, that I suggested to her, since this was a pre-Baez [Commonwealth v. Perez-Baez, 410 Mass. 43 (1991)] case, that I didn’t think that she had established sufficient probable cause . . . and that the [Aguilar v. Texas, 378 U.S. 108 (1964)] test hadn’t been met.”
This demonstrates that the judge’s concern was not with the trooper’s credibility, but with the veracity of the informant.
We did say, in Crawford I, that “[t]here was testimony in open court which, if believed, would satisfy both prongs of the Upton test.” Crawford I, supra at 78. If I were to take this line out of context and ignore the discussion which follows it, as the court seems to do, I also would be inclined to deny the suppression motion based on the judge’s assertion that he did not have a credibility problem with the police officer. As I read this line, however, in context with the rest of our opinion in Crawford I, it seems clear to me that what we meant was that, although the veracity prong of Commonwealth v. Upton, 394 Mass. 363 (1985), may be satisfied if an informant previously provided information leading to arrest and seizure of drugs, Upton was not satisfied in this case because there were not sufficient details regarding the arrest and seizure.
In his memorandum, the judge wrote, “In order for reliability to be established by the Perez-Baez standard, sufficient factual details must be provided to prove the accuracy of the informant’s information regarding the prior arrests and seizures.” I agree with the judge, and note that the prosecutor and police officer refused to provide these details. The court, however, seems intent on ignoring the deficiency in details that prompted the judge to rule as he did.
In Perez-Baez, the veracity prong of Upton was satisfied by a police officer’s affidavit which recited that the informant had provided information leading to the arrest of two named persons, described the amount and type of drugs seized, and even recited the court in which the cases against
Reference
- Full Case Name
- Commonwealth vs. Vincent Crawford (And Three Companion Cases)
- Cited By
- 5 cases
- Status
- Published