Heard: December 4, 2015.
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.
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.
E. Robinson for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Present: Cohen, Trainor, & Katzmann, JJ.
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.
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.
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.
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.
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.
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.