Heard: September 12, 2017.
found and returned in the Superior Court Department on
October 31, 2013.
pretrial motion to suppress evidence was heard by Thomas P.
Billings, J., and the cases were tried before him.
J. Rappaport for the defendant.
Clarence H. Brown, Assistant District Attorney, for the
Present: Rubin, Neyman, & Henry, JJ.
jury trial in Superior Court, the defendant, Radhames
Gonzalez, was convicted of possession of cocaine with intent
to distribute, carrying a firearm without a license,
possession of ammunition without a firearm identification
card, possession of a large capacity feeding device, and
possession of a large capacity weapon during the commission
of a felony. The defendant argues that (1) his motion
to suppress should have been allowed because the information
supplied by a confidential informant (CI) did not justify the
investigatory stop of his motor vehicle; and (2) the
admission in evidence of a substitute chemist's testimony
deprived the defendant of his right to "confront"
the witness. We affirm.
forth the facts as found by the motion judge, supplemented
where necessary with uncontroverted evidence drawn from the
record of the suppression hearing. See Commonwealth v.
Watson, 430 Mass. 725, 726 n.5 (2000).
William West of the Billerica police department testified
that he had been a patrol sergeant for two years, and that he
had formerly been a detective in the criminal bureau for
sixteen years. As a detective, he had investigated all types
of crimes including narcotics offenses and had worked with
informants "no less than a hundred times." In June,
2013, about one year after he had become a sergeant, West was
contacted by a CI with whom West had worked on more than one
occasion when he was a detective.
occasion, the CI provided a description of a man who went by
the name of "Eddie, " later identified as the
defendant, who was dealing heroin and cocaine in and around
the Gaelic Club (club) in Lowell. The CI described the
defendant as a Dominican male who drove a white Buick
Rendezvous CXL sport utility vehicle bearing license plate
676 NB4. The CI indicated that on Friday nights the defendant
used the club as a base of operation and that the CI
personally observed the defendant make cocaine sales in the
club's bathroom. The CI also indicated that the defendant
would receive telephone calls and travel to individuals'
homes to sell drugs. The CI also told West that the defendant
usually carried a firearm and the CI believed the defendant
did not have a valid driver's license.
West was no longer involved in narcotics investigations and
because the club was in Lowell, not Billerica, he passed the
CI's tip and contact number to Sergeant Noone of the
Lowell police department. West explained to Noone that the CI
was an informant who had been "signed up by
Billerica" and had been reliable in the past, including
having given information that led to arrests and seizures.
Noone assigned the matter to Lowell police Detective Rafael
Rivera. When Rivera spoke by phone with the CI, the CI
repeated what he had disclosed to West and that he had seen
the defendant in the club only a "couple of days before,
" in possession of drugs and his gun. Rivera ran the
license plate number the CI had given him and the records
showed that the vehicle was registered to Kennedy
Friday, June 28, 2013, at about 7:25 P.M., Rivera and three
other undercover officers, in four separate vehicles, set up
surveillance around the club. Rivera saw a vehicle matching
the make, model, license plate, and color supplied by the CI.
After a few minutes, a man matching the description of
"Eddie" exited the club, got into the vehicle, and
drove away. When the vehicle turned into a gasoline station,
Lowell police Detective Michael Kandrotas pulled in behind
it, activating the concealed lights and siren on his unmarked
exited his vehicle and, as he approached, observed the driver
make a quick movement to his right, as if to toss something
into the back seat. Because the defendant had been reported
to carry a firearm, Kandrotas had the defendant exit the
vehicle. Rivera joined Kandrotas and recognized the defendant
as someone he knew from prior narcotics investigations.
confirmed through dispatch that the defendant did not have a
current driver's license. The defendant was placed under
arrest for operating a vehicle without a license. Rivera
searched the defendant and found $5, 100 on his person. The
defendant was transported to the police station. During
booking, it was determined that the defendant had an alias of
the defendant's vehicle was blocking a gasoline pump, and
the police were going to search it, the police moved it
across the street to a school parking lot after the defendant
was arrested. The Lowell inventory policy, which was
introduced at the motion hearing, provides for the inventory
and towing of a vehicle that was, or is, being used in the
commission of a crime. When police opened the rear door, they
observed a loaded .40 caliber semiautomatic handgun poorly
concealed in a sock on the floor. In a second sock, police
recovered twenty-seven bags, each containing a powder later
confirmed to be cocaine.
motion judge found that the police had conducted an
investigatory stop based on information supplied by the CI.
The judge recognized that in such circumstances, the CI's
information must establish both the reliability and basis of
knowledge prongs set forth under the
Aguilar-Spinelli test. The judge
reasoned that "'[b]ecause the standard is reasonable
suspicion rather than probable cause, a less rigorous showing
in each of these areas is permissible' . . . [and]
independent police corroboration may 'make up for
deficiencies in one or both of these factors.'"
Commonwealth v. Pinto, 476 Mass. 361, 364 (2017),
quoting from Commonwealth v. Depina, 456 Mass. 238,
243 (2010) .
this standard, the judge ruled that the CI's basis of
knowledge was self-evident from the tip and founded on
personal observation. On the veracity prong, according to
West, "The information [the CI] provided allowed [West]
to seize various types of narcotics, make drug seizures and
drug arrests, as well as seizing money, the proceeds of drug
profits." Through cross-examination, defense counsel
elicited that individuals who make controlled buys are
considered to be "informant[s]"; that "if [a]
person had, in fact, made a series of purchases on behalf of
the Billerica [p]olice [d]epartment, [West] could honestly
say that that individual had provided [West] with information
that if it did lead to arrest, to arrest and seizure . . .
"; and that, specifically, this CI had previously made
controlled buys for the Billerica police department. The
Commonwealth did not ask West on redirect examination whether
the CI previously had been a tipster and not merely a
controlled buyer. The judge specifically found: "I
understand [West's] testimony to mean that the CI