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16-P-1021                                                Appeals Court

                 COMMONWEALTH   vs.    GIOVANNIE LUNA.


                           No. 16-P-1021.

       Hampden.       October 2, 2017. - December 5, 2017.

             Present:    Vuono, Meade, & Kinder, JJ.


Controlled Substances. Firearms. Practice, Criminal, Motion to
     suppress. Probable Cause. Search and Seizure, Probable
     cause, Motor vehicle, Inevitable discovery. Constitutional
     Law, Probable cause, Search and seizure.


     Indictments found and returned in the Superior Court
Department on May 12, 2015.

     A pretrial motion to suppress evidence was heard by Edward
J. McDonough, Jr., J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

     James R. Goodhines for the defendant.
     Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.


    KINDER, J.    The defendant has been charged with various

narcotics and firearm offenses.       Following an evidentiary

hearing, a Superior Court judge denied, in large part, the
                                                                    2


defendant's motion to suppress evidence.    The defendant's

application to pursue an interlocutory appeal was allowed by a

single justice of the Supreme Judicial Court, who reported the

matter to this court.

    On appeal, the defendant claims that (1) the judge erred in

concluding that the Springfield police officers had reasonable

suspicion to stop the defendant's vehicle and to pat frisk him,

(2) the subsequent warrantless search and seizure of heroin and

a firearm from a second motor vehicle was not supported by

probable cause or any exception to the warrant requirement, and

(3) the police officers lacked authority to conduct the second

search outside the city of Springfield.    Because we conclude

that the Springfield police exceeded their territorial

jurisdiction in the execution of the second vehicle search, we

reverse so much of the order as denied the motion to suppress

evidence seized during that search.

    Background.   We summarize the pertinent facts from the

judge's findings on the motion to suppress, supplemented where

appropriate by uncontroverted suppression hearing testimony that

the judge explicitly or implicitly credited.   See Commonwealth

v. Jones-Pannell, 472 Mass. 429, 431 (2015).    In April of 2015,

Springfield police Officer Jaime Bruno, a narcotics investigator

with fifteen years' experience, was told by a confidential

informant that on April 15, 2015, an individual named "Gio,"
                                                                     3


later identified as the defendant, would make a large delivery

of heroin at the intersection of Liberty Street and Denton

Circle in East Springfield at about noon that day.    According to

the informant, Gio would be driving a black Mini Cooper

automobile, and the informant provided the license plate number.

The informant, with whom Officer Bruno had been in "constant

communication" for the preceding seven to eight months, had

previously provided information to Officer Bruno that resulted

in numerous seizures and arrests.   The informant told Officer

Bruno that he1 had purchased heroin from Gio at that same

intersection on several occasions, and also within the last

seventy-two hours at Gio's residence at the Toll House

Apartments in West Springfield.   Other officers confirmed that

the defendant lived at the Toll House Apartments, and informed

Officer Bruno that the defendant also had a residence at 122

Beauregard Terrace in Chicopee.

     The Springfield police had previously received complaints

that nonresidents of the area were congregating at the

intersection of Liberty Street and Denton Circle.    On the

morning of April 15, 2015, Officer Bruno went to that location

to see for himself.   He observed two individuals standing at the




     1
       Although the gender of the informant is not disclosed, we
use the masculine pronoun for ease of reference.
                                                                    4


intersection whom he had previously arrested for heroin

offenses.

    Later that morning, at approximately 10:00 A.M.,

surveillance officers observed the defendant and a Hispanic male

leave the Toll House Apartments, place two large plastic

containers in the back seat of the Mini Cooper, and drive it to

122 Beauregard Terrace in Chicopee.    There, the defendant

approached a red Honda automobile parked at the end of the

driveway, opened the trunk with a key, and retrieved a black

plastic bag the size of a softball.    He then reentered the Mini

Cooper and drove in the direction of East Springfield.

    The police followed in unmarked vehicles.     When the Mini

Cooper was within approximately two miles of the intersection of

Liberty Street and Denton Circle, the defendant began driving in

an erratic manner.    He drove up and down a number of side

streets with no apparent destination, suddenly stopping and then

accelerating beyond the speed limit.   This unusual driving

caused Officer Bruno, based on his training and experience, to

conclude that the defendant was attempting to determine if he

was being followed.

    The police stopped the Mini Cooper.    Officer Bruno removed

the defendant and conducted a patfrisk for weapons.   He felt a

large bulge in the defendant's pocket, which he recognized,

based on his experience and the size and texture of the objects,
                                                                   5


as packets of heroin.   He then removed a black bag from the

defendant's pocket, which appeared to be the one he had observed

the defendant remove from the trunk of the red Honda.   Officer

Bruno also removed a set of Honda car keys and three cellular

telephones from the defendant's person.

    The defendant was arrested.    The defendant pleaded with

Officer Bruno for permission to telephone his girl friend;

Officer Bruno declined.   Within minutes of the arrest, all three

cellular telephones seized from the defendant began to ring and

the unanswered calls continued for approximately ten minutes.

Concerned the delay in the defendant's arrival had alerted those

waiting for the delivery of heroin to a potential problem such

that the investigation had been compromised, Officer Bruno and

other officers returned to 122 Beauregard Terrace in Chicopee,

arriving within ten to fifteen minutes of the defendant's

arrest.   When, after five minutes, no one responded to Officer

Bruno's announcement of police presence and knocks on two

different doors, officers entered the Honda using the keys

obtained from the defendant.   Several bricks of heroin and a

firearm were seized from the trunk.

    Prior to the vehicle search, Officer Bruno had requested

that Chicopee police officers provide a "'uniformed' police

presence at the scene given that the Springfield police officers

were in plain clothes in unmarked vehicles and they might not be
                                                                     6


recognized as law enforcement."   Chicopee police officers did

not arrive until after the search of the Honda.

    Discussion.     We review the judge's decision under familiar

standards.    We accept the judge's factual findings unless they

are clearly erroneous.    See Commonwealth v. Meneus, 476 Mass.

231, 234 (2017).    However, we "make an independent determination

of the correctness of the judge's application of constitutional

principles to the facts as found."    Commonwealth v. Durand, 475

Mass. 657, 664 (2016), cert. denied, 86 U.S.L.W. 3156 (2017),

quoting from Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).

    1.    The vehicle stop and arrest in Springfield.    The

defendant claims that the heroin found in his pocket should have

been suppressed because the stop of the Mini Cooper was not

supported by reasonable suspicion.    We disagree.   A stop is

justified when police have a reasonable suspicion that the

person stopped is committing, has committed, or is about to

commit a crime.    Commonwealth v. Silva, 366 Mass. 402, 405

(1974).   The reasonable suspicion must be based on "specific and

articulable facts and the specific reasonable inferences which

follow from such facts in light of the officer's experience."

Id. at 406.   When the stop is based on an unnamed informant's

tip, as in this case, "art. 14 requires that 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
                                                                     7


(1969)."   Commonwealth v. Welch, 420 Mass. 646, 650 (1995).

The Commonwealth must demonstrate the veracity of the informant

and his basis of knowledge.   Ibid.    "Independent police

corroboration may make up for deficiencies in one or both of

these factors."   Commonwealth v. Mubdi, 456 Mass. 385, 396

(2010) (quotation omitted).

    An informant's veracity may be shown by "underlying

circumstances from which . . . the law enforcement officials

could have concluded the informant was credible or reliable."

Commonwealth v. Escalera, 462 Mass. 636, 645 n.8 (2012), quoting

from Commonwealth v. Cast, 407 Mass. 891, 896 (1990).        Here, the

informant had a proven track record.     He had provided

information to Officer Bruno on more than fifty prior occasions

in the preceding seven to eight months.     The information

provided by the informant led to "well over fifteen" seizures of

drugs, resulting in multiple convictions.    We agree with the

judge's conclusion that this evidence sufficiently established

the informant's veracity.   See Commonwealth v. Robinson, 403

Mass. 163, 165 (1988) ("The informant's past record of supplying

credible information satisfies the reliability prong").

    As to the second prong of the Aguilar-Spinelli standard, a

prior purchase of drugs by an informant can satisfy the basis of

knowledge test.   Commonwealth v. Montanez, 410 Mass. 290, 299-

300 (1991).   See Commonwealth v. Ilges, 64 Mass. App. Ct. 503,
                                                                      8


508 (2005).   Here, the informant reported that he had purchased

heroin on several occasions from the defendant, whom he knew by

name, both at the intersection of Liberty Street and Denton

Circle, and also at the defendant's residence, which he

identified by address.   Moreover, it was reasonable to infer

from the informant's detailed information that he had direct

personal knowledge of the defendant's heroin distribution.      See

Commonwealth v. Mendes, 463 Mass. 353, 365 (2012) (level of

detail in informant's description consistent with firsthand

knowledge).   He described a transaction that was to occur at a

specific intersection at a definite time and reported the make,

color, and license plate number of the vehicle the defendant

would be driving.   Independent police investigation confirmed

that the defendant lived at the address provided by the

informant, and had a second address in Chicopee.   Police also

confirmed that the Mini Cooper described by the informant was

registered to the defendant's girl friend.

    The information provided by the informant was further

corroborated when, approximately one hour before the drug

transaction was to occur, police observed the defendant leave

the Toll House Apartments in the Mini Cooper, drive to his

residence at 122 Beauregard Terrace in Chicopee, take a

softball-sized black bag from the Honda, and then drive in the

direction of the transaction predicted by the informant.     While
                                                                      9


following the defendant, the police reasonably concluded that he

was engaged in counter surveillance as he drove evasively

through a residential neighborhood.     In these circumstances, the

judge correctly concluded that the police had more than

reasonable suspicion to stop the defendant -- they had probable

cause to arrest him.

    "[P]robable cause exists where, at the moment of arrest,

the facts and circumstances within the knowledge of the police

are enough to warrant a prudent person in believing that the

individual arrested has committed or was committing an offense."

Commonwealth v. Charley, 91 Mass. App. Ct. 223, 228 (2017),

quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979),

cert. denied, 446 U.S. 955 (1980).     We consider the entire

"silent movie" in a practical and nontechnical way, through the

eyes of an experienced narcotics investigator.     Commonwealth v.

Santaliz, 413 Mass. 238, 242 (1992).     Applying these principles,

we conclude that the information received from the informant,

corroborated by police investigation and the defendant's

attempts to evade surveillance, established probable cause that

he was committing a drug offense.     Because the police had

probable cause to arrest the defendant at the time they stopped

the Mini Cooper, the search of the defendant's person was
                                                                   10


permissible incident to that lawful arrest.     See Commonwealth v.

Blevines, 438 Mass. 604, 608 (2003).2

     2.   Search of the Honda in Chicopee.    The defendant

challenges the warrantless search of the Honda in Chicopee on

multiple grounds.   Because we agree with the defendant that, in

the circumstances presented here, the Springfield police lacked

authority to conduct a warrantless vehicle search outside their

jurisdiction, we limit our discussion to that issue.3

     It is well settled that "[a] police officer lacks authority

to act outside his or her jurisdiction, unless specifically

authorized by statute or in the performance of a valid citizen's

arrest at common law."    Commonwealth v. Twombly, 435 Mass. 440,

442 (2001).   The Commonwealth argues that the police had

statutory authorization here.    Specifically, the Commonwealth

cites G. L. c. 276, § 2A, for the proposition that searches can

be broadly executed by any State, county, or local law

enforcement officer.4    While it is true that G. L. c. 276, § 2A,


     2
       Because we conclude that the police had probable cause to
arrest the defendant, and the search of his person was incident
to that lawful arrest, we need not address the defendant's
arguments related to the exit order and the patfrisk of his
person.
     3
       The defendant also argues that the police lacked probable
cause to search the Honda and that there were no exigent
circumstances justifying the warrantless search.
     4
       General Laws c. 276, § 2A, entitled "Form of warrant,"
provides that search warrants issued by courts "shall be in
                                                                    11


implicitly authorizes any Massachusetts law enforcement officer

to execute search warrants anywhere in the Commonwealth, the

clear language of the statute applies only to searches executed

pursuant to a warrant.   It does not apply to warrantless

searches like the one in this case.     The Commonwealth cites no

authority, and we have found none, permitting a warrantless

search by a Massachusetts police officer acting outside his

territorial jurisdiction.

    Here, it is undisputed that the warrantless search of the

Honda was conducted by the Springfield police in the city of

Chicopee, outside the territorial jurisdiction of the

Springfield police department.    Although the Chicopee police

were called for assistance, they were not involved in the

investigation and were not present at the time the search was

conducted.   Thus, the Springfield police acted outside their

authority, and the contraband seized from the Honda in Chicopee

should have been suppressed.     See Commonwealth v. Lahey, 80

Mass. App. Ct. 606, 610 (2011) ("The appropriate remedy for

unauthorized extraterritorial action is suppression of the

resulting evidence").



substantially the following form: . . . To the   Sheriffs of our
several counties, or their deputies, any State   Police Officer,
or any Constable or Police Officer of any city   or town, within
our said Commonwealth . . . [we] command you .   . . to make an
immediate search . . . ." G. L. c. 276, § 2A,    inserted by
St. 1964, c. 557, § 3.
                                                                   12


     For the first time on appeal, the Commonwealth argues that

even if the police exceeded their territorial authority, the

exclusionary rule should not apply because the evidence seized

from the Honda would have inevitably been discovered.     The

Commonwealth's theory of inevitable discovery is that the

Chicopee police, upon their arrival, would have conducted a

lawful search of the Honda within their territorial

jurisdiction.   We are not persuaded.

     "[T]he Commonwealth has the burden of proving the facts

bearing on inevitability by a preponderance of the evidence."

Commonwealth v. Ubilez, 88 Mass. App. Ct. 814, 817-818 (2016),

quoting from Commonwealth v. Perrot, 407 Mass. 539, 547 (1990).

"The motion judge's findings [on inevitable discovery] should be

specific and detailed."    Lahey, supra at 613.   "Once the

relevant facts are found by a preponderance of the evidence, the

question is whether on those facts discovery by lawful means was

certain as a practical matter."    Commonwealth v. O'Connor, 406

Mass. 112, 117 (1989).    "The test of inevitability should be

made on the circumstances existing at the time of the unlawful

seizure."   Id. at 117 n.4.

     Even assuming there was a lawful basis to search the Honda

without a warrant,5 a question we do not reach, we cannot


     5
       The Commonwealth contends there was probable cause to
search the Honda and exigent circumstances justifying a
                                                                    13


conclude that a lawful search by the Chicopee police was

"virtually certain."     Perrot, supra.   Indeed, at the time the

search was conducted by the Springfield police, even the arrival

of the Chicopee police, although anticipated, was not certain.

Moreover, because the theory of inevitable discovery was not

advanced at the suppression hearing, the Commonwealth did not

elicit testimony to support it, and the judge's comprehensive

memorandum of decision included no findings related to

inevitable discovery.    Accordingly, on the record before us, we

cannot conclude that "discovery by lawful means was certain as a

practical matter."     O'Connor, supra.

    Conclusion.   So much of the order as denied the defendant's

motion to suppress evidence seized from the Honda in Chicopee is

reversed.   In all other respects, the order is affirmed.

                                      So ordered.




warrantless search. The Commonwealth also argues that the
automobile exception should apply in these circumstances even
though the Honda was parked on private property. We note that
the Supreme Judicial Court "ha[s] not previously addressed
whether the automobile exception to the warrant requirement may
justify a search of an automobile parked within the curtilage of
a defendant's home." Commonwealth v. Fernandez, 458 Mass. 137,
146 n.13 (2010).
