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Suffolk. 1988. April Hennessey, & Lynch, C.J., Wilkins, Liacos, JJ. Present: Abrams, O’Connor, Seizure, Arrest. and Probable Cause. Search Probable cause. Constitu- Law, seizure, tional Search Probable cause. In a judge denying criminal erred in defendant’s motion suppress heroin found on the person when was arrested on the basis of an traveling informant’s that one of two black men heroin, on a plane where the anonymous informant reliable, shown basis informant’s knowl- shown, edge was not the police where officers’ independent obser- vations supply thus, accuracy tip; the requirements cause to were arrest not satisfied. [181-182] found and returned Court De- Superior Indictment on partment September
The case was heard Paul A. Chernoff, Judicial Court on Supreme its own initiative transferred the case from the Court. Appeals White,
Jane Larmon Services, Committee for Public Counsel for the defendant. Ross,
Kevin J. Assistant District for the Common- Attorney, wealth. J. The defendant from his conviction of appeals
Abrams, of heroin with intent to distribute possession on the ground the search of and the seizure of person the heroin was unlawful and that the seized evidence should have been We transferred the case suppressed. from the Ap- Court our own motion. We peals reverse.
We summarize the facts found motion 19,1986, , On August at about 3 suppress. State Trooper William Johnson received a from a *2 The informed
the State office Logan Airport. Bums, a clerk with Eastern Johnson that William reservations Airlines, call from an had received an anonymous telephone to the individual who asked that his call be connected Bums informed the caller that the could not When transferred, the Bums two black men had travel- caller told the York led from Boston on Eastern Air shuttle New City the shuttle to p.m. and that 3 or returning they the men The informant told Bums that one of Logan Airport. Williams. The caller described Williams was named Donald tall a five feet six inches being wearing approximately the men The informant stated that one of black baseball cap. the area of a heroin in crotch was carrying his pants. Johnson, in an investigation who had been involved
Trooper the Eastern of drug trafficking Logan Airport, proceeded The last in the of another Airlines terminal company trooper.1 shuttle fit the two to leave the defendant, not The who was wear- the informant. in his left crotch the had a noticeable bulge baseball ing cap, the area. In the men moved while slowly scanning area. Both area, men whom conversed they arrival met two with they and his seconds. The defendant thirty compan- approximately The defendant looked toward one of ion frequently troopers. terminal walking quickly then left group, upper area. without in baggage stopping termi- the defendant to Johnson followed upper Trooper The if could with him. nal. He asked the defendant speak Johnson with The defendant provided defendant agreed. name, no he could identification. but produce The him about the bulge. when Johnson asked respond hard about and felt a object then frisked defendant trooper reached into the Johnson the size of a of cigarettes. package number of glassine packages and recovered a defendant’s pants heroin wrapped newspaper. tightly Johnson, was dressed findings, who judge’s not noted in Although clothes, trooper. accompanied by a uniformed plain trial, the defendant was convicted Following jury-waived and sentenced to serve two and one-half years Suffolk correction, served, house of one to be County the balance year with two The defendant suspended, years’ probation. timely filed a notice of appeal.
The sole issue on is whether there was cause appeal the arrest and search of the defendant’s See person. ante 163 below noted in his memorandum of decision on the motion to sup neither the informant’s nor the press, basis for his was established knowledge during course Thus, test, call. satisfy Aguilar-Spinelli *3 the details of the informant’s must be corroborated tip officer’s observation. independent of the
Turning question we reliability, conclude that the corroboration independent of of the informant’s was not sufficient to tip satisfy prong To determine the Aguilar-Spinelli inquiry. of adequacy informant’s tip, we rely States, v. United principles expressed Draper 358 U.S. 307 See Commonwealth v. supra 166; at 777, Commonwealth v. (1985); Mass. 395 784 56, 365 Mass. 63 Avery, (1974); Common Kane, 656, v. 362 (1972); Mass. 659 Commonwealth Stevens, 24, v. 362 Mass. 27-28 the informant described the defendant’s
race. The informant also stated that either Williams or his companion carrying of heroin in area; his crotch the fact that the informant could not identify which man would actually narcotics undermines The informant’s reliability. describe in some detail ability height clothing does not cure Spence’s companion the deficiencies in the informant’s of the defendant. The fact that the defendant was with an individual travelling whom the informant was able to describe does not indicate anything of the informant’s concerning tip the defendant. 403 v.
Commonwealth also corroborated adequately The informant’s tip stated behavior. The informant correctly the defendant’s which and on defendant would not be carrying luggage that the would be returning that the defendant and Williams glanced and the fact Boston 3Unlike criminal activity.2 may suggest one of troopers described both the cases who appear- the informants prior Robin- defendants, see and the behavior ance Santana, ante son, 167, Commonwealth 166; v. Gonzalez, ante (1988); (1988); Farrow, ante this inform- (1988), with the failed to describe the ant of Aguilar- the reliability detail satisfy prong requisite However, alone will not Spinelli? the defendant’s behavior we conclude cause. Accordingly, a finding the informant’s corroboration the independent police of Aguilar-Spinelli.4 does not the reliability satisfy prong conviction is reversed. The defendant’s ordered.
So in suggested that individuals experience Johnson’s Although Trooper to leave are often the first or last drug transportation volved in with criminal behavior necessarily consistent that behavior is not plane, *4 and last. always leave the first plane because someone must Bottari, and Common supra, case is similar to Commonwealth 3 This Bottari, In the informant Borges, in a Oldsmobile parked the defendant would be police told the that parking license in a Somerville particular plate particular automobile with a detail, and, indeed, any the defendant in did not describe lot. The informant we deter In that case two individuals automobile. arrested corroboration of and the limited provided mined that information “[t]he to support circumstances were insufficient unsuspicious details in innocuous court determined Borges, In cause . . . .” probable reliability prong cause for an arrest that there was no only by was satisfied Aguilar-Spinelli inquiry supra at clothing. Borges, appearance even less detailed information behavior,in sketchy detail about his physical the narcotics. cluding transporting whether he even would be had reason officers argue The Commonwealth does Thus, the endangered. safety or that of others to believe that their Ohio, U.S. 1 Terry v. be sustained under in this case cannot search I dissent. The court (dissenting). is today persnickety in its demands on the point exasperation “fit the admittedly description provided informant,” ante at down to the in the crotch bulge area of his There was pants. cor- roboration.