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16-P-1035                                          Appeals Court

             COMMONWEALTH   vs.   RADHAMES GONZALEZ.


                         No. 16-P-1035.

      Middlesex.     September 12, 2017. - March 12, 2018.

             Present:   Rubin, Neyman, & Henry, JJ.


Controlled Substances. Firearms. Practice, Criminal, Motion to
     suppress, Confrontation of witnesses. Constitutional Law,
     Search and seizure, Investigatory stop, Reasonable
     suspicion, Confrontation of witnesses. Search and Seizure,
     Motor vehicle, Reasonable suspicion, Threshold police
     inquiry. Threshold Police Inquiry. Motor Vehicle,
     Firearms. Witness, Expert. Evidence, Expert opinion,
     Scientific test.


     Indictments found and returned in the Superior Court
Department on October 31, 2013.

     A pretrial motion to suppress evidence was heard by Thomas
P. Billings, J., and the cases were tried before him.


     Steven J. Rappaport for the defendant.
     Clarence H. Brown, Assistant District Attorney, for the
Commonwealth.


    HENRY, J.   After a jury trial in Superior Court, the

defendant, Radhames Gonzalez, was convicted of possession of

cocaine with intent to distribute, carrying a firearm without a
                                                                      2


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.1    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.

     Background.     We set 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).

     Sergeant 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


     1 The defendant then waived his right to a jury and was
tried before the judge on sentence enhancements connected with
two of the firearms charges. A motion for a required finding of
not guilty was allowed as to both enhancements.
                                                                    3


CI with whom West had worked on more than one occasion when he

was a detective.

    On this 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.

    Because 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
                                                                     4


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 Ruiz-Mejia.2

     On 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 cruiser.

     Kandrotas 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.




     2 After the defendant was arrested, Rivera learned that
Ruiz-Mejia had passed away in 2011.
                                                                      5


     Rivera 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

Eddie Mambru.

     Because 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.

     The 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.3    The


     3 Under the Aguilar-Spinelli test, "[t]o establish the
reliability of the information under art. 14 [of the
                                                                    6


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).

    Applying 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


Massachusetts Declaration of Rights], 'the Commonwealth must
show the basis of knowledge of the source of the information
(the basis of knowledge test) and the underlying circumstances
demonstrating that the source of the information was credible or
the information reliable (veracity test).'" Commonwealth v.
Anderson, 461 Mass. 616, 622, cert. denied, 568 U.S. 946 (2012),
quoting from Commonwealth v. Mubdi, 456 Mass. 385, 395-396
(2010). See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
                                                                      7


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 supplied

substantive information as well as helping with controlled

buys."   The judge also found that knowledge of the CI's past

track record of reliability with Billerica, which was conveyed

to Lowell, was sufficient to "satisf[y] the veracity test."

    Discussion.    1.   Motion to suppress.   a.   The stop.    "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).

    Here, because there is no live dispute regarding the CI's

basis of knowledge, given the CI's personal observations of the

defendant in possession of drugs and a gun only days prior to

the tip, we focus on the evidence of the CI's veracity.        The

motion judge gave West's testimony regarding the CI's prior

track record its plain and ordinary meaning, namely that on more

than one previous occasion the CI had directly provided material

information regarding violations of the law and, further, that
                                                                   8


the CI provided "substantive information."   The judge's finding

of fact comports with the language West used, the testimony that

the informant had been reliable in the past, and the common

situation presented in police work in which a CI provides

material information regarding criminal violations and is then

engaged to execute a controlled buy.4   See, e.g., Commonwealth v.

Perez-Baez, 410 Mass. 43, 44-46 (1991) (recitation that

informant had "provided information" previously that led to

arrests and seizure of cocaine sufficiently established

informant's veracity); Commonwealth v. Mendes, 463 Mass. 353,

365 (2012) (CI provided information and made controlled buy);

Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926 (2004)

(same); Commonwealth v. Velez, 77 Mass. App. Ct. 270, 273 (2010)

(same); Commonwealth v. Lima, 80 Mass. App. Ct. 114, 119 n.5

(2011) (same); Commonwealth v. Perez, 90 Mass. App. Ct. 548, 554

(2016) (same).


     4 We also note that the CI knew specifically to telephone
West to convey information regarding an individual's illegal
drug sales in this case and that in anticipation of that
conversation he had obviously noted the make, model,
registration number, and color of that individual's vehicle,
together with his method of operation, which suggests at least a
likelihood that this was not his first tip. Additionally, we
note that the detectives did corroborate several pieces of
information from the CI before the stop, including the make,
model, color, and license plate number of the vehicle that the
defendant would be driving. However, corroboration of innocent
details "only slightly" enhances the CI's reliability and is
insufficient on its own to satisfy the veracity prong. See
Commonwealth v. Lyons, 409 Mass. 16, 21 (1990).
                                                                      9


     The defendant contends that there was a possible

alternative interpretation of West's testimony:     that in the

past the CI could have been only a controlled buyer who had not

provided information, which would be insufficient to establish

the CI's veracity.    See Commonwealth v. Carrasquiello, 45 Mass.

App. Ct. 772, 775-776 (1998) (differentiating between

confidential informants as tipsters and controlled buyers for

purposes of veracity).5    This argument is insufficient to show

clear error in the motion judge's findings of fact.

     First, on a motion to suppress, "[q]uestions of credibility

are the province of the motion judge who had the opportunity to

observe the witnesses."    Commonwealth v. Tremblay, 460 Mass.

199, 205 (2011).     Second, and more importantly, that the

Commonwealth or the motion judge might have asked what seems,

possibly only in hindsight, an obvious follow-up question to

confirm that the CI previously had been a tipster, rather than

merely a controlled buyer, does not allow us to reverse.      Where

the judge's finding "is plausible in light of the record viewed

in its entirety, the [appellate court] may not reverse it even

though convinced that had it been sitting as the [finder] of

fact, it would have weighed the evidence differently.    Where


     5 Carrasquiello involved the question of probable cause for
a search warrant for entry into a home, whereas this case
involves the lesser standard of reasonable suspicion, and a
Terry stop on the street. See Terry v. Ohio, 392 U.S. 1 (1968).
                                                                  10


there are two permissible views of the evidence, the

factfinder's choice between them cannot be clearly erroneous."

Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986), quoting

from Anderson v. Bessemer City, 470 U.S. 564, 673-574 (1985).

See Commonwealth v. Carr, 458 Mass. 295, 303 (2010);

Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 327 (2015).

    Moreover, that the defense interpretation of West's

testimony may be possible does not make it probable or an

inference the motion judge must draw.    A court considers the

application for a search warrant, or here whether there was

reasonable suspicion to conduct a stop, "in an ordinary,

commonsense manner without hypertechnical analysis."    Perez-

Baez, 410 Mass. at 46, quoting from Commonwealth v. Melendez,

407 Mass. 53, 60 (1990) (Greaney, J., dissenting).     See

Commonwealth v. Blake, 413 Mass. 823, 827 (1992) (search warrant

affidavits should be "read as a whole, not parsed, severed, and

subjected to hypercritical analysis").   "The standard of

reasonable suspicion[, which is lower than the standard of

probable cause,] does not require absolute certainty, but only

'sufficient probability,' 'the sort of "common-sense

conclusio[n] about human behavior" upon which "practical people"

-- including government officials -- are entitled to rely.'"
                                                                  11


Commonwealth v. Buccella, 434 Mass. 473, 486 (2001), quoting

from New Jersey v. T.L.O., 469 U.S. 325, 346 (1985).6

     b.   The search of the vehicle.   Similarly unavailing is the

defendant's claim that the search of the vehicle was

unreasonable.   After the defendant was arrested, because his

vehicle was blocking the pumps at a gasoline station that was

open for business, the police moved the vehicle across the

street.   Regardless of how the police described the ensuing

search, the incriminating objects found during the search would

have been discovered during the inevitable inventory search

conducted before police had the vehicle towed.    See, e.g.,

Commonwealth v. Miller, 366 Mass. 387, 389 (1974) (finding

search constitutional even though "the officers did not

completely and correctly articulate their grounds," where "from

an objective standpoint probable cause existed"); Commonwealth

     6 At oral argument, the defendant added that the Lowell
police could not rely on the track record of the CI established
with the Billerica police department to establish the CI's
reliability because they did not know the details of that track
record and were not working collaboratively on the investigation
with Billerica, citing Commonwealth v. Hawkins, 361 Mass. 384,
386-387 (1972) (collective knowledge doctrine did not apply
because officers who seized bonds during search for drugs within
the defendant's apartment were neither aware of theft of bonds
nor working in concert with officers who had knowledge of the
stolen bonds). Generally, we will not consider arguments not
raised in a party's brief. Mass.R.A.P. 16(a)(4), as amended,
367 Mass. 921 (1975). In any event, the argument has no merit.
Here, the Lowell police were informed that the CI was reliable
by the Billerica police, and "[a] law enforcement officer who
provides information is presumed credible." Commonwealth v.
Watson, 36 Mass. App. Ct. 252, 253 n.1 (1994).
                                                                    12


v. Somers, 44 Mass. App. Ct. 920, 922-923 (1998) (police

discovery during automobile stop that defendant had no license

warranted order that car be towed); Commonwealth v. Bienvenu, 63

Mass. App. Ct. 632, 634-635 (2005) (after police stopped car for

safety infraction, subsequent tow and inventory search were

proper because "neither defendant could lawfully drive the

car").

     2.   Testimony of substitute chemist.   The defendant argues

that testimony of a substitute chemist regarding the makeup of

the substance seized from the defendant's vehicle violated his

rights under the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights to confront and meet face to face the witnesses against

him, and that the Commonwealth did not sufficiently prove the

unavailability of the original chemist.7

     Testimony by an expert where he or she "draws upon testing

conducted and results reached by other analysts[] who do not

testify . . . is permissible provided that the testifying

analyst 'reviewed the nontestifying analyst's work, . . .

conducted an independent evaluation of the data,' and 'then

expressed [his or] her own opinion, and did not merely act as a

conduit for the opinions of others.'"   Commonwealth v. Jones,

     7 At trial, the prosecutor represented that the original
chemist had left the laboratory and it was unknown whether she
was still working as a chemist for the Commonwealth.
                                                                  13


472 Mass. 707, 715 (2015), quoting from Commonwealth v.

Greineder, 464 Mass. 580, 595 (2013).   See Greineder, supra at

603 (no violation of Sixth Amendment or art. 12, even where

testifying analyst based her opinion on test results of

nontestifying analyst that were not admitted in evidence).

Unavailability is not a prerequisite to calling a substitute

chemist, provided the substitute chemist can be cross-examined

on how he or she reached his or her opinion.   See id. at 594-

599.

       The Commonwealth introduced the testimony of Paul Eyerly, a

chemist with the State police drug unit in Sudbury, who

testified as to his own independent opinion of the composition

of the substances in question based on tests performed and

results obtained by the original chemist.   The defendant cross-

examined Eyerly regarding the basis on which he formed his

opinion, the testing procedures used, and their susceptibility

to human error.   We discern no error or any violation of the

defendant's right to confront the witnesses against him under

the United States Constitution or the Massachusetts Declaration

of Rights.

                                    Judgments affirmed.
    RUBIN, J. (dissenting).     I dissent from the court's holding

that the police had reasonable suspicion to stop the defendant.

Since all evidence discovered was the fruit of an

unconstitutional stop, the motion to suppress should have been

allowed.

    In this case, a confidential informant described a

Dominican male who drove a white Buick Rendezvous CXL sport

utility vehicle of which the confidential informant recited the

license plate number.     The confidential informant indicated that

on Friday nights the man could be found at the Gaelic Club.        He

said that the man used it as a base of operation, traveling to

individuals' homes to sell drugs, and that he personally

observed the man make cocaine sales in the club's bathroom.        The

confidential informant also told the police that the man usually

carried a firearm and that he believed the man did not have a

valid driver's license.

    The police ran the license plate numbers and determined

that the car was registered to a Kennedy Ruiz-Mejia.     They did

not ascertain whether Ruiz-Mejia had an active driver's license

or a license to carry a firearm.     They then set up surveillance

outside the Gaelic Club on a Friday night and saw the car, and

when a Hispanic-appearing male, the defendant, left the club,

got in, and drove away, the police stopped the car.     They had
                                                                      2


not entered the club.     They had not seen the defendant engage in

drug sales or any other suspicious activity.

     Under Massachusetts law, we utilize the two-pronged

Aguilar-Spinelli test1 to determine whether a tip can provide the

reasonable suspicion that criminality is afoot necessary to

allow an investigative stop.     The veracity prong requires the

Commonwealth to demonstrate "that the source of the information

was credible or the information reliable."     Commonwealth v.

Depiero, 473 Mass. 450, 454 (2016).    The central issue in this

case, as the court recognizes, is the veracity of the

confidential informant.

     The court also recognizes, and I agree, that, as the motion

judge also correctly concluded, the Commonwealth could have

established the informant's veracity only by showing that the

informant had been a tipster in the past, and not merely a

controlled buyer.   This is because, while it is well established

that an informant's history of providing tips leading to the

seizure of narcotics can establish the informant's veracity, see

Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991), as we have

held, one who merely participates in controlled buys is a person

of "unknown reliability."     Commonwealth v. Carrasquiello, 45

Mass. App. Ct. 772, 776 (1998).     See id. at 774-777


     1 See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
                                                                    3


(distinguishing the veracity of tipsters from that of controlled

buyers).   This is because while buying drugs on behalf of the

police does provide them with information, it does not entail

providing them with any information the police have not

generated themselves.   See ibid.   See also Commonwealth v.

Desper, 419 Mass. 163, 168 (1994) (describing the process of

controlled buys).

    And, while corroboration of certain details of a tip can

lead to a conclusion that the person who provided it was

truthful, confirmation only of the publicly-knowable and not

suspicious facts provided by the tipster that a person who

drives a certain car goes to a particular club on Friday

evenings is insufficient to demonstrate the veracity of the

tipster's claim that the person also engages in unlawful

conduct.   See Commonwealth v. Lyons, 409 Mass. 16, 20-21 (1990)

("[T]he quantity and quality of the details corroborated by the

police were simply insufficient to establish any degree of

suspicion that could be deemed reasonable.   The trooper was able

to verify only the description of the automobile, the direction

in which it was headed, and the race and gender of the occupants

before making the stop. . . .   [T]he informant's reliability was

only slightly enhanced by this corroboration because the police

verified no predictive details that were not easily obtainable

by an uninformed bystander. . . .   Significantly . . . these
                                                                    4


defendants displayed no suspicious behavior that might have

heightened police concern.   Anyone can telephone the police for

any reason").

    In this case, the only evidence of the informant's past

involvement with the police came from Sergeant William West's

testimony.   On direct examination, he testified that, in the

past, the informant had provided "information" that led to drug

arrests and the seizure of money and narcotics.

    In cross-examination, though, the defendant's experienced

counsel asked Sergeant West, "And if [an individual utilized by

the Billerica police department to make controlled buys] had, in

fact, made a series of purchases on behalf of the Billerica

[p]olice [d]epartment, you could honestly say that that

individual had provided you with information that if it did lead

to arrest, to arrest and seizure, is that fair to say?"   The

sergeant said, "Yes."   Counsel then asked, "In the past was [the

informant in this case] able to make controlled buys for you

when you did use him as an informant for the Billerica [p]olice

[d]epartment?"   Again, the sergeant said, "Yes."

    The Commonwealth bears the burden of demonstrating the

lawfulness of the seizure and thus in this case, in order to

demonstrate the veracity of the tip, that the confidential

informant had previously acted as a tipster and not merely as a

controlled buyer.   Defense counsel's careful cross-examination
                                                                    5


made clear that, according to Sergeant West himself, even if one

had taken Sergeant West's direct testimony to mean that the

informant had provided tips in the past, that was not

necessarily its meaning.   While West's testimony left open the

possibility that the confidential informant might have been a

tipster as well as a controlled buyer, the officer's direct

testimony did not mean that the informant was such a tipster.

     The Commonwealth could have clarified the matter on

redirect by asking Sergeant West whether the informant had ever

provided tips.   It declined to do so.   Perhaps this was because

it knew that the confidential informant in fact was not a

tipster; perhaps it was not.   But in either event, the

Commonwealth, which, it bears repeating, has the burden here,

left a record in which there was insufficient evidence to

support the finding, necessary to the motion judge's conclusion

that the search was lawful, that the confidential informant had

previously been a tipster, not only a controlled buyer.2

     The Commonwealth recognized this below, and did not even

argue before the judge that the evidence supported a finding

that the confidential informant was a tipster.   Defense counsel

     2 The court suggests in a footnote that the facts that the
informant called Sergeant West with information regarding the
defendant's drug sales, and that he had noted the description of
the car, suggests "at least a likelihood that this was not his
first tip." But calling a police officer to tell him someone is
dealing drugs at a particular place and describing his car
hardly indicates that one has done so before.
                                                                      6


argued:    "At no time did the sergeant ever say that this

informant was a tipster. . . .      I didn't ask him.   My brother

didn't ask him. . . .   [A]ll we know about this person, this

informant" is that "[h]e has performed controlled buys

successfully . . . .    We don't know whether he was ever a

tipster.    [West] was never asked."

     The Commonwealth did not disagree, arguing only (and

incorrectly) that any information leading to "an arrest and

seizure of contraband substances was by itself sufficient to

establish reliability," and that, coupled with the details that

were corroborated, it was sufficient.3

     The court majority addresses the state of the record with

respect to the confidential informant by saying first that we

must defer to the motion judge's assessment of Sergeant West's

credibility.   Of course we must.      But the issue is not whether

Sergeant West is credible, nor did the judge say it was.4      The


     3 Even here, on appeal, the Commonwealth does not explain
what supported the judge's finding, asserting without
elaboration only that the "weight and credibility of testimony
are functions of [the] motion judge, and factual findings will
stand absent clear error."

     4 The support for the judge's finding that the informant had
provided tips in the past was limited to quoting Sergeant West's
testimony that the informant had more than once provided
"information" leading to arrests and seizures of drugs and
money, and drawing the following inadequately-supported
inference therefrom: "I understand this testimony to mean that
the CI supplied substantive information as well as helping with
controlled buys, which he also did, and I so find."
                                                                     7


issue is what Sergeant West said.     I assume he was perfectly

credible.    His testimony, though, cannot support a finding that

the confidential informant provided tips in the past.      It is

silent on that question.

    The court majority then suggests that the "more

important[]" reason we must affirm is that we must defer to the

fact finder's choice between "two permissible views of the

evidence."   Ante at     .   That statement of black letter law is

of course true as well, but it is equally irrelevant.

    To illustrate the point:     If there were testimony that an

event happened on a weekend, a judge could not infer solely on

that basis that the day on which it happened was a Saturday

rather than a Sunday.    That would not be a case in which one

could draw one of two permissible inferences from the evidence

in the record (i.e., that it happened on a Saturday or that it

happened on a Sunday).     It would be one in which there was

insufficient evidence in the record to support a conclusion on

the matter in either direction.     The event might have happened

on a Saturday.    Or it might have happened on a Sunday.    But

there is no basis upon which a fact finder could, without more,

determine which one.     And if it was one party's burden to prove

the event happened on a Saturday, that party would have failed

to meet its burden.
                                                                    8


    That is precisely this case.    Whatever one might have

thought initially about Sergeant West's direct testimony, given

his own clarification on cross-examination, it meant only that

the confidential informant might have been a tipster (and a

controlled buyer as well), or that he might have been only a

controlled buyer.   But there was no evidence in the record to

support the judge's conclusion that the informant was the former

rather than the latter.   Choosing between two different possible

factual scenarios, either of which might have happened, where

there is no evidence in the record about which one actually did

occur, is far different than choosing between two permissible

views of the evidence in the record, and there would be little

left of the rule of law if we eliminated that distinction.

    Because the Commonwealth did not provide sufficient

evidence to support a positive finding about the veracity of the

confidential informant, it failed to demonstrate the reasonable

suspicion necessary for the initial stop of the defendant's

vehicle.   While I have no quarrel with the rest of the

majority's analysis, because all the evidence seized was fruit

of that unlawful stop, it should have been suppressed.    With

respect, I therefore dissent.
