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14-P-1626                                            Appeals Court

               COMMONWEALTH    vs.   HECTOR GONZALEZ.


                           No. 14-P-1626.

       Hampden.        December 4, 2015. - August 29, 2016.

            Present:   Cohen, Trainor, & Katzmann, JJ.


Controlled Substances. Constitutional Law, Search and seizure,
     Probable cause. Search and Seizure, Probable cause.
     Probable Cause.


     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.


    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
                                                                    2


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
                                                                       3


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.
                                                                    4


    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.
                                                                    5


    Discussion.   "In reviewing a denial of a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error, but conduct an independent review of the

judge's ultimate findings and conclusions of law."   Commonwealth

v. Washington, 449 Mass. 476, 480 (2007).   Because, as we

discuss below, we conclude that the police had probable cause to

arrest the defendant at the time that he was removed from the

Honda, we need not determine whether the police formally placed

him under arrest before or after the search, as the search could

be justified either way as a valid search incident to arrest.

See id. at 481, 482 ("A search incident to an arrest is a

limited exception to the warrant requirement" but "a suspect

need not be formally under arrest at the precise moment of a

search incident to an arrest; the search may precede the formal

arrest so long as probable cause exists independent of the

results of the search"); Skea, supra at 696 n.15 ("If a police

officer has probable cause to believe a suspect on the street is

carrying, say, heroin, it is clear from Rawlings [v. Kentucky,

448 U.S. 98, 111 (1980),] that he is not required first to

arrest, then to search.   He may instead begin with the search,

and, on finding the heroin, arrest" [citation omitted]).

    "Where an unnamed informant's tip is relied on by the

police as supplying probable cause to arrest and to search, art.

14 [of the Massachusetts Declaration of Rights] requires that
                                                                     6


the information satisfy the two-pronged standard set forth in

Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969)."   Commonwealth v. Welch, 420 Mass.

646, 650 (1995).   To satisfy this standard, "[t]he Commonwealth

must (1) demonstrate the basis of the informant's information

and (2) put forward sufficient indicia of veracity to justify

probable cause."   Commonwealth v. Crawford, 410 Mass. 75, 78

(1991).   "[A]n informant's detailed tip, plus independent police

corroboration of those details, can compensate for deficiencies

in either or both prongs of the Aguilar-Spinelli standard and

thus satisfy the art. 14 probable cause requirement."    Welch,

supra at 651.   "[T]he Aguilar-Spinelli test is not to be applied

'hypertechnically.'   Rather, we consider whether, taken as a

whole and read in a commonsense fashion, the [hearing evidence]

adequately demonstrates that the informant has provided reliable

information."   Commonwealth v. Alfonso A., 438 Mass. 372, 375

(2003) (citation omitted).

     1.   Basis of knowledge.   The specific detail concerning the

defendant's exact location, ethnicity, clothing, and means of

transportation provided by the CI here gives rise to the

reasonable inference that the basis of his1 knowledge was

personal observation.   That is, even though Detective Kalish did

     1
       Our use of masculine pronouns should not be considered any
indication of the CI's gender, about which we have no
information.
                                                                    7


not explicitly testify to the CI's basis of knowledge, "[i]n

context, it is apparent that the informant was reporting his own

observation" where "the level of detail provided is consistent

with personal observation, not mere recitation of a casual

rumor."   Id. at 374.   The CI described the clothing the

defendant was wearing and the make and license plate of the

automobile in which he would be a passenger as well as the race

of its driver.   In addition, the CI's information was current as

of the moment he was relaying it.    "The promptness of the

information, the specificity of the observations, and the

particularity of the detail as to location permitted the

inference that the informant saw the drugs at the precise place

stated. . . .    This satisfies the basis of knowledge prong."

Commonwealth v. Alvarez, 422 Mass. 198, 207 (1996).    See Welch,

supra at 651-652 ("From the level of detail, it could be

inferred that the informant had direct knowledge of the

defendant and of the criminal activity that was to take place on

that evening"); Commonwealth v. Mendes, 463 Mass. 353, 364-365

(2012).

    Moreover, where Sergeant Kent's observations confirmed the

detail provided by the CI, "[a]ny deficiency in ascertaining the

informant's basis of knowledge from the tip alone was adequately

compensated for by independent police corroboration of the
                                                                        8


details of the tip."      Welch, supra at 652.    The basis of

knowledge prong was satisfied.

     2.     Veracity.   The Commonwealth introduced sufficient

evidence of the CI's reliability to satisfy the veracity prong.

First, Detective Kalish's past experiences with the CI

demonstrated that the CI had provided reliable and accurate

information in the past leading to arrests and seizures of

narcotics and a firearm.2     "The veracity test may be satisfied by

demonstrating the credibility of the informant.        That

credibility, in turn, may be established by showing that

information provided in the past by this informant has proved to

be accurate."     Crawford, 410 Mass. at 79.     This is especially

true where, as here, previous accurate tips have led to the

seizure of illegal narcotics.      Mendes, supra at 365-366;

Commonwealth v. Perez-Baez, 410 Mass. 43, 45-56 (1991).

     Second, as noted above, the narcotics officers here were

able to independently corroborate the detail that the CI had

provided.    "[D]etail, by itself, does not ordinarily suffice to

establish reliability, [but] it remains a factor in the over-all

assessment of . . . reliability . . . [and] police corroboration

of that detail is a strong indicator of reliability."         Alfonso

A., 438 Mass. at 376-377 (citations and footnote omitted).


     2
       As mentioned, at the time of the tip, both prosecutions
arising from the CI's previous tips were ongoing.
                                                                       9


       Finally, the CI was not anonymous.    "Although the informant

was not named" by Detective Kalish, "he was not an untraceable,

unknown source."     Id. at 375.   As found by the motion judge, the

CI was known to Detective Kalish by name, address, Social

Security number, and date of birth.      "Although police knowledge

of the informant's 'identity' and 'whereabouts' would not be

adequate standing alone to confirm the informant's reliability,

it is a factor that weighs in favor of reliability."      Id. at

376.    See Commonwealth v. Va Meng Joe, 425 Mass. 99, 103-104

(1997) (informant reachable by authorities); Mendes, supra.

       Based on the accuracy of the CI's prior tips, police

corroboration of the detail of his tip in this case, and police

knowledge of his identity and whereabouts, the veracity prong

was satisfied.

       3.   Consideration of previously suppressed evidence in

assessing veracity.     The defendant's primary contention on

appeal is that the motion judge erred in finding that the

reliability of the CI was established by prior cooperation

resulting in "arrests in two other cases and the seizure of

contraband in each instance."      In so concluding, the motion

judge took judicial notice that in one of those cases, which

named Hector Rosario as the defendant, the motion to suppress
                                                                   10


had been successful and the case had been dismissed.3   In that

case, a different motion judge found that the veracity prong was

not satisfied, and therefore probable cause was lacking.   There,

the CI had not provided predictive information that was "highly

specific" or "relate[d] to non-obvious and non-innocent

activities" for the police to corroborate.   Nor had the CI

"provided information that had previously led to convictions,

seizures of contraband, or arrests."   Although the CI's tip led

to the recovery of a gun from Rosario, the evidence was

suppressed.4

     The defendant contends that the motion judge's decision in

the Rosario matter indicates that the CI is not reliable and

that the Commonwealth should not be permitted to rely on the

CI's involvement in that case to bolster his reliability here

where the evidence to which he led police in the Rosario matter

was ultimately suppressed.   He contends that the consideration

by the motion judge of the suppressed evidence subverts the

exclusionary rule.   We disagree.


     3
       The second case had not yet been resolved at the time of
the motion hearing.
     4
       Though it did not take an interlocutory appeal, the
Commonwealth has not conceded that the Rosario matter was
correctly decided. See Commonwealth v. Stephens, 451 Mass. 370,
378 (2008) ("[T]he Commonwealth may choose not to take an
interlocutory appeal from an incorrect decision on a motion to
suppress"). The merits of that suppression decision are not
before us and we do not reach them.
                                                                    11


     We turn first to the defendant's suggestion that the motion

judge's conclusion in the Rosario matter that the Commonwealth

had failed to establish the CI's reliability is equivalent to a

finding with preclusive effect here that the CI is not reliable.

This contention is unavailing.    One judge's determination

regarding probable cause based on a CI's tip in a different case

at a different time is not determinative of the existence vel

non of probable cause, or the CI's reliability, in a case

presenting different facts and circumstances.5    Indeed, as the

defendant acknowledges, in Massachusetts, the allowance of a

motion to suppress in one defendant's case does not even

collaterally estop the Commonwealth from relitigating the

suppression issue in the codefendant's case.     See Commonwealth

v. Stephens, 451 Mass. 370, 375-380 (2008).    The defendant's

argument fails for a similar reason.

     Relatedly, the defendant claims that in determining the

CI's veracity here, the exclusionary rule should preclude the

motion judge from considering the evidence that had been

suppressed in the unrelated Rosario matter.    We are not

persuaded by this contention.    "The suppression of evidence

under the exclusionary rule is a 'judicially created remedy,'

     5
       For example, in the Rosario matter, the motion judge found
that the "CI had not provided information that had previously
led to convictions, seizures of contraband, or arrests." The CI
had a far more favorable track record by the time he provided
information in the instant case.
                                                                   12


whose 'prime purpose is to deter future unlawful police

conduct.'"   Commonwealth v. Lora, 451 Mass. 425, 438 (2008),

quoting from United States v. Calandra, 414 U.S. 338, 347, 348

(1974).   See Commonwealth v. Wilkerson, 436 Mass. 137, 142

(2002) ("The interest in deterring unlawful police conduct . . .

is the foundation of the exclusionary rule"); Commonwealth v.

Lunden, 87 Mass. App. Ct. 823, 827 (2015).   Besides the

"'primary justification for the exclusionary rule' [of]

deterrence of unconstitutional police conduct," Lora, supra,

quoting from Stone v. Powell, 428 U.S. 465, 486 (1976), "its

purpose is to . . . preserve judicial integrity by dissociating

courts from unlawful conduct."   Commonwealth v. Nelson, 460

Mass. 564, 570-571 (2011).   See Commonwealth v. Brown, 456 Mass.

708, 715 (2010), and cases cited.   See also United States v.

Leon, 468 U.S. 897, 920-921 (1984).   "Rigid adherence to a rule

of exclusion is unnecessary in situations where these purposes

are not furthered."   Nelson, supra, citing Brown, supra.

    We therefore turn to the question whether the "stated goal

of the exclusionary rule . . . to encourage police officers to

conform their conduct to the dictates of the Constitution,"

Crawford, 410 Mass. at 80, militates in favor of prohibiting

consideration of previously suppressed evidence when assessing

an informant's veracity under the Aguilar-Spinelli test in an
                                                                  13


unrelated case.6   We conclude that it does not, at least not in a

case such as this where the evidence obtained from the prior tip

had not yet been suppressed at the time the officers relied on

it as part of the CI's reliability track record and where there

is no indication that the reasons for its ultimate suppression

impugn the accuracy or credibility of the CI.

     The defendant points to no case that precludes a judge from

considering evidence indicative of the accuracy of a CI's track

record where, in an unrelated case and due to a judicial finding

that the CI's veracity had not been adequately established, that

evidence had been suppressed.   We have previously referred to

United States Supreme Court Justice Powell's "balancing test for

use in determining whether the exclusionary rule should apply to

the use of evidence other than in the prosecution of the case-

     6
       We note that the applicability of the Aguilar-Spinelli
test is a matter of State law, as it is no longer the standard
under Federal constitutional law. See Commonwealth v. Upton,
394 Mass. 363, 373-374 (1985). Consequently, where the Rosario
matter was decided by application of the Aguilar-Spinelli test
as a matter of State constitutional law, the resulting
suppression was required by State, not Federal law. In Upton,
the Supreme Judicial Court explained that its application of the
exclusionary rule where law enforcement fails to satisfy the
Aguilar-Spinelli test as required by art. 14 of the
Massachusetts Declaration of Rights was dictated by the State
warrant statute, G. L. c. 276, § 2B, and not by art. 14 itself.
Upton, supra at 370, 374-376. However, subsequent cases applied
the exclusionary rule where the Commonwealth failed to satisfy
the Aguilar-Spinelli test even where no warrant was involved.
See, e.g., Commonwealth v. Borges, 395 Mass. 788, 789-790, 794-
795 (1985). The parties have not suggested that the outcome
here depends on that basis (Federal or State constitutional law
or State statute) for application of the exclusionary rule.
                                                                 14


in-chief against the victim of the search and seizure" and his

observation that "the need for deterrence and hence the

rationale for excluding the evidence are strongest where the

Government's unlawful conduct would result in imposition of a

criminal sanction on the victim of the search."   Boston v.

Ditson, 4 Mass. App. Ct. 323, 331, 332 (1976), quoting from

United States v. Calandra, 414 U.S. 338, 348 (1974).   As a

result of the shortcomings specific to the Rosario matter (as

found by the motion judge in that case), the judge suppressed

the evidence as it applied to Rosario.   Thus the "victim of that

illegality" -- Rosario -- was not punished, and the police did

not gain an advantage by "illegal" conduct.   Selectmen of

Framingham v. Municipal Ct. of Boston, 373 Mass. 783, 787

(1977).   The concern for protecting the victim of that search

(Rosario) is not implicated in the defendant's case,7 and any


     7
       For the same reason, cases such as Commonwealth v. White,
374 Mass. 132, 138-139 (1977), aff'd by an equally divided
court, 439 U.S. 280 (1978), and Alvarez, 422 Mass. at 207 n.6 --
where the Commonwealth relied on subsequently suppressed
statements in obtaining search warrants for evidence to be used
against the same defendants who uttered the statements -- are
inapposite. Those cases also deal with suppression based on
Miranda violations, which raise different concerns. As the
White court noted, "Evidence obtained in violation of the
guaranty against unreasonable searches and seizures is more
often than not reliable, probative evidence. While evidence
obtained in violation of the Miranda guidelines may be similarly
probative and reliable, there is a far more significant danger
that it will not be so." White, supra at 139 (citations
omitted).
                                                                    15


"incremental deterrent effect" would be "speculative and

undoubtedly minimal."8   Calandra, supra at 351-352.   Therefore,

at the time the motion judge reviewed the CI's information in

the instant case, it was proper for him to consider the fact

that the police had recovered a gun from Rosario as the CI had

predicted.

     In this regard, it should also be noted that the defendant

in this case was arrested on June 14, 2013, based on information

provided by the CI and corroborated by the police.     The judge in

the unrelated case involving Rosario did not suppress the

evidence in that case until March 28, 2014.   Therefore, at the

time of the defendant's arrest, the officers had no reason to

believe that they could not rely, in part, on the seizure of a

firearm and the accompanying arrest of Rosario in establishing

the CI's veracity.   Since the officers were unaware that a

     8
       It is unlikely and speculative that police will engage in
unlawful searches to obtain evidence of illegality that, though
subject to suppression as against the individual from whom the
evidence was seized, may bolster the reliability of an informant
in separate and unrelated investigations that may or may not
ever materialize. Different considerations could apply where
the suppressed evidence is derived from an investigation that is
in some way related to the defendant seeking exclusion. "For
example, '[u]nconstitutional [police conduct directed at] small
fish intentionally undertaken in order to catch big ones may
have to be discouraged by allowing the big fish, when caught, to
rely on the violation of the rights of the small fish, as to
whose prosecution the police are relatively indifferent.'"
Commonwealth v. Vacher, 469 Mass. 425, 435 (2014), quoting from
Commonwealth v. Manning, 406 Mass. 425, 429 (1990). The
defendant does not contend that Rosario's case is in any way
connected with his.
                                                                 16


motion judge would later suppress the evidence as to Rosario, it

is unreasonable to conclude that the officers even knew that

their conduct would be deemed constitutionally deficient, let

alone that they had an incentive to "take advantage of [their]

own lawbreaking" in that case.   Selectmen of Framingham, supra.

     The defendant's claim based on judicial integrity fails for

similar reasons.   As has been stated, besides deterrence of

unconstitutional police conduct, one of the stated purposes of

the exclusionary rule, albeit not a foundational or primary one,

is the preservation of judicial integrity by dissociating courts

from unlawful conduct,9 see, e.g., Nelson, 460 Mass. at 570-571,

and "avoid[ing] judicial participation in the use of evidence

obtained in violation of a defendant's constitutional rights."

Commonwealth v. Webster, 75 Mass. App. Ct. 247, 258 (2009).     But

here judicial integrity is not implicated as it was in Selectmen

of Framingham, because the Commonwealth is not seeking "to take

     9
       In Commonwealth v. Olsen, 405 Mass. 491, 495 (1989), the
Supreme Judicial Court, in a case involving a probation
revocation proceeding, noted that "[a] few dissenting opinions
decry the use of illegally obtained evidence in any proceeding
as a matter of judicial integrity," but that none of the cases
excluding illegally obtained evidence actually appear to
explicitly rely on "judicial integrity." To the extent that
judicial integrity was a concern, the Olsen court found it
"adequately served" by excluding the illegally obtained evidence
at the defendant's trial without requiring exclusion of that
evidence from the defendant's probation revocation hearing.
Ibid. See Commonwealth v. Goewey, 69 Mass. App. Ct. 429, 436
n.6 (2007). See generally Bloom and Fentin, "A More Majestic
Conception": The Importance of Judicial Integrity in Preserving
the Exclusionary Rule, 13 U. Pa. J. Const. L. 47 (2010).
                                                                   17


advantage of its own lawbreaking to punish the victim of that

illegality."   Selectmen of Framingham, 373 Mass. at 787.     Again,

the defendant here was not a victim of any illegality by the

officers in the Rosario matter.   Nor, though the defendant

suggests otherwise, does this case raise the specter of using

suppressed evidence to buttress a fabricated, nonexistent

informant, such that a fraud could be perpetrated on the court

and its integrity threatened.   Judicial integrity was adequately

served by the exclusion of the evidence at issue from Rosario's

trial.    Cf. Brown, 456 Mass. at 715 ("Judicial integrity . . .

is hardly threatened when evidence properly obtained under

Federal law, in a federally run investigation, is admitted as

evidence in State courts").10



     10
       Even if the motion judge erred in considering the
evidence from the Rosario matter and that evidence were excised,
sufficient information remained to establish the CI's veracity
under the Aguilar-Spinelli test based on the CI's past
reliability as to the remaining matter and police corroboration
of his tip and knowledge of his identity and whereabouts. The
CI had provided information in the past that led to an arrest
and the seizure of "a large amount of heroin." Even if a single
prior instance of reliability was insufficient to establish the
CI's veracity in this case, the officers also corroborated
specific details of his tip. See Lyons, 409 Mass. at 19. As
already stated above, the defendant's location, clothing, and
actions exactly matched the specific information that the CI
provided. See Commonwealth v. Valdez, 402 Mass. 65, 70-71
(1988) (after erroneous information excised from search warrant
affidavit, remaining information sufficient to support issuance
of search warrant on finding of probable cause); Commonwealth v.
DeJesus, 439 Mass. 616, 625-626 (2003) (where improper
information removed from search warrant application, remainder
                                                               18


    Conclusion.   The motion judge properly denied the

defendant's motion to suppress.

                                   Order denying motion to
                                     suppress affirmed.




of affidavit sufficient to establish probable cause to search);
Commonwealth v. Streeter, 71 Mass. App. Ct. 430, 440-441 (2008).
