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Commonwealth v. Gonzalez

Appeals Court of Massachusetts, Hampden

August 29, 2016

COMMONWEALTH
v.
HECTOR GONZALEZ.

          Heard: December 4, 2015.

         Indictments found and returned in the Superior Court Department on July 11, 2013. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Fernande R. V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Thomas E. Robinson for the defendant.

          Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

          Present: Cohen, Trainor, & Katzmann, JJ.

          KATZMANN, J.

         In the instant appeal from the denial by a Superior Court judge of the defendant's motion to suppress, the defendant challenges the warrantless search of his person and arrest based on information police received from a confidential informant. A single justice of the Supreme Judicial Court allowed the defendant's application for leave to pursue an interlocutory appeal of the Superior Court's order and reported the matter to this court. The primary issue posed by this appeal is whether the exclusionary rule precludes a judge from considering evidence of a prior incident in an unrelated case in evaluating the accuracy of a confidential informant's "track record" where that evidence was suppressed in the unrelated case after a finding by a different judge that the informant's veracity had not been adequately established. On the record before us, we answer that question in the negative and affirm the order denying the motion to suppress.

         Background.

         We recite the facts as found by the motion judge after an evidentiary hearing. On June 14, 2013, at approximately 7:40 P..M., Detective Edward Kalish, an experienced narcotics detective with the Springfield police department, received information from a confidential informant (CI) that, at that moment, a Hispanic male named Hector Gonzalez was in possession of a large quantity of heroin on Knox Street in Springfield. The CI further stated that Gonzalez was wearing dark shorts, dark shoes, and a light blue basketball jersey bearing number "8" with the name "Bryant" on the back. The CI said that Gonzalez was a passenger in a blue Honda automobile bearing a specific Massachusetts license plate number. According to the CI, the vehicle was being operated by a white male.

         The CI was known to Detective Kalish by name, address, Social Security number, and date of birth. At the time of the tip, Detective Kalish had been working with the CI for two to three months. The CI had previously provided information that had resulted in arrests in two other cases, neither of which had been resolved at the time of the tip. In one of the cases, a firearm had been seized from Hector Rosario. In a second case, the CI's cooperation had led to the seizure of a large amount of heroin and to arrests.

         Detective Kalish immediately communicated the substance of the CI's tip to other members of his unit. Sergeant Stephen Kent responded to the area of Knox Street within five to six minutes of Detective Kalish's radio communication. There he observed a Hispanic male in a light blue basketball jersey bearing the number "8" with the name "Bryant" on the back. The Hispanic male, later identified as the defendant, left a residence on Knox Street and entered the passenger side of a blue Honda automobile bearing the same Massachusetts license plate number as the CI had reported. The driver of that vehicle was a white male.

         Sergeant Kent communicated with other members of his unit by radio that he had observed the Hispanic male described by the CI entering the blue Honda on Knox Street. Thereafter he followed the vehicle, but did not participate in the stop. Detective Gregg Bigda responded to Knox Street at the same time, observed the blue Honda, and followed it to the intersection of Dickinson and Euclid Streets, where the blue Honda stopped without being directed to do so by law enforcement officers. Detective Bigda stopped his unmarked vehicle beside the blue Honda, got out, approached the passenger's side of the Honda, and removed the defendant. Other police vehicles blocked the Honda's path of travel. Two other officers searched the defendant's person and seized ninety-seven bags of heroin and five bags of cocaine from his pants pockets. The defendant was arrested and transported to the police station, where an inventory of his property revealed $499 in United States currency.

         Citing Commonwealth v. Skea, 18 Mass.App.Ct. 685, 700 (1984), and implicitly determining that the defendant was not under arrest until some point after he had been removed from the vehicle, the motion judge concluded that the officers had probable cause to search the defendant to prevent the destruction of evidence.

         D ...


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