Following a jury trial, Henry R. Arias, the defendant, was convicted of carrying a firearm without a license in violation of G.L. c. 269, § 10(a), and of possession of ammunition
1. Motion to suppress. a. The record and the findings. Three witnesses, the defendant, Massachusetts Bay Transportation Authority (MBTA) police Sergeant Detective John Mahoney, and MBTA police Detective Patrick Lewis, testified at the hearing on the defendant's motion to suppress. Before reciting the motion judge's findings, we summarize the testimony "that was `uncontroverted and undisputed and [that] the judge explicitly or implicitly credited.'" Commonwealth v. Ocasio, 71 Mass.App.Ct. 304, 305, cert. denied, 555 U.S. 931 (2008), quoting from Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
On the morning of May 29, 2008, Sergeant Detective Mahoney, who was in charge of the MBTA's internal security unit, received a telephone call from Richard Hart, the MBTA's manager of station maintenance with a supervisory responsibility over the MBTA's contract cleaners. Hart said he had "received information" from an unnamed source or sources that "there was a contract cleaner, the foreman, who works at North Station [in Boston] that was carrying a gun while working on the property and possibly, that he may have two guns and he was known to carry one in the ... small of his back and possibly one in his car." According to Hart, the foreman's name was Arias and
Officer Lewis contacted Hart and another MBTA employee named Halloran, who also had a supervisory role over contract cleaners. Without identifying the sources of their information, Hart and Halloran told Officer Lewis that "other people"
Relying on the information provided to him by Hart and Halloran, but without ascertaining the identities of or speaking to the "other people" from whom Hart and Halloran had obtained their information, Sergeant Detective Mahoney went to Downtown Crossing at 11:00 P.M. There he saw a parked silver and blue BMW. From the license plate on the vehicle, he learned that the car was registered to a woman who lived at an address that matched the address for the defendant Hart had provided. A search of other records revealed that the defendant had not been issued a firearms license.
So informed, Sergeant Detective Mahoney, Officer Lewis, and a third MBTA police officer, Detective Michael Cauley, proceeded to North Station where they saw the BMW parked and unoccupied on an access road. Sergeant Detective Mahoney and Officer Lewis parked fifty to sixty yards away in an unmarked
At some point between 11:30 P.M. and 1:00 A.M., the officers saw the defendant come out of a nearby building, walk to the BMW, and open either the passenger side door or the trunk several times. Around 1:00 A.M., the defendant returned to the car, opened the passenger door and sat down in the passenger seat to put on work boots. At that point, Sergeant Detective Mahoney approached him, with Officer Lewis close behind. Sergeant Detective Mahoney displayed his badge and the officers identified themselves as MBTA police. The officers were in plain clothes and, although armed, they did not draw their weapons.
Sergeant Detective Mahoney testified that, as he drew near, he asked to speak to the defendant. "At that time, he stood up. I informed him that we had information that there was a gentleman that worked there carrying a firearm and was the foreman of the crew. I told him for his safety, I was just going to do a pat down of him. He nodded his head affirmatively. I patted him down and found no other firearm. And then we asked if we could search the vehicle."
Officer Lewis and Detective Cauley then began to search the defendant's car. Officer Lewis found a loaded pistol beneath a floor mat under the driver's seat and "yelled `gun.'" Upon hearing that, the defendant immediately said, "I found it." In response, Sergeant Detective Mahoney asked, "what did you say," to which the defendant responded, "I found it. I saw a gentleman running down Causeway Street and he threw something down. I went over to see what it was and when I picked it up, it was the gun. And I was going to call the police but I didn't. I just put it in the car."
The defendant was then handcuffed and Officer Lewis walked
On that record, the motion judge denied the defendant's motion to suppress with the following oral findings:
b. Discussion. On the record just described, the defendant argues that the Commonwealth has not satisfied its burden of proving that any consent he may have given for the search of his vehicle
"[A] `stop and frisk [is] constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful.'" Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010), quoting from Arizona v. Johnson, 555 U.S. 323, 326 (2009). "Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Ibid.
There can be no doubt that the defendant was "stopped" in a constitutional sense before the search of his vehicle occurred. A "stop" is a form of seizure and a person is seized for purposes of the Fourth Amendment to the United States Constitution when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). See Commonwealth v. Stoute, 422 Mass. 782, 785-789 (1996) (adopting the Mendenhall standard for art. 14 of the Massachusetts Declaration of Rights). In this case, those circumstances existed no later than the point at which Sergeant Detective Mahoney told the defendant that he intended to conduct a frisk.
A stop is lawful only if the police have "an objectively reasonable suspicion of criminal activity, based on specific and articulable facts." Commonwealth v. Barros, 435 Mass. 171, 176 (2001). When reasonable suspicion is based on an informant's tip, the tip must bear adequate indicia of reliability, i.e., "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. Lopes, 455 Mass. 147, 155-156 (2009).
Here, the record reveals nothing about the informants' basis of knowledge or veracity. Hart and Halloran, the MBTA employees who told the police about the defendant, expressly stated that they were passing on information they had obtained from "other people" but said nothing about who the other people were and provided no information about the other people that would enable anyone to determine either their veracity or basis of knowledge. In that regard, we treat the individuals who gave information to Hart and Halloran as unknown informants even though police knew their identities by the time of the hearing. See note 3, supra. Nothing in the record suggests that the police knew who the informants were before they arrested the defendant or that they had any idea how the informants knew of the gun. Moreover, information obtained from known informants receives somewhat greater weight than that received from anonymous informants because known informants expose themselves to "charge[s] of filing a false report or any comparable consequence of providing false information to law enforcement."
When there is insufficient evidence to show an informant's basis of knowledge and veracity, "[i]ndependent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Barros, 435 Mass. at 176, quoting from Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). Corroboration of that sort, though, must show that the informant has knowledge related to the criminal activity, not mere "innocent details." Id. at 177 n. 7. See Florida v. J.L., 529 U.S. 266, 272 (2000) (a tip must be "reliable in its assertion of illegality, not just in its tendency to identify a determinate person").
No such corroboration is present here. To be sure, Hart and Halloran told the police about the defendant's work schedule and the officers saw him appear at the times and places the schedule dictated.
The stop was therefore impermissible and the stop and frisk are analytically inseparable. Thus the question becomes whether the Commonwealth has satisfied its burden of showing that the defendant's consent to the automobile search was "free and voluntary," Commonwealth v. Yehudi Y., 56 Mass.App.Ct. 812, 816 (2002), that is, "unfettered by coercion, express or implied, and ... something more than mere `acquiescence to a claim of lawful authority.'" Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), quoting from Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976). "Consent to search obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, has not been regarded as freely given unless the taint of the illegality has been attenuated.... It is the burden of the Commonwealth to prove that the taint has been sufficiently attenuated to allow the admission of the evidence derived from the prior illegality." Commonwealth v. Allen, 54 Mass.App.Ct. 719, 721-722 (2002).
Insofar as dissipation of the taint is concerned, we think that this case is indistinguishable from Commonwealth v. Loughlin, 385 Mass. 60 (1982). There, after engaging in what the court determined to be an impermissible detention of a pickup truck driver and passenger and an impermissible patfrisk of the passenger, the officer asked the driver whether there were any weapons in the truck's passenger compartment. In response, the driver said, "No weapons. You can check." Id. at 62. The officer did, and found nothing. He then asked whether there were any weapons in the back of the vehicle. Again the driver answered, "No, you can check." Again the officer searched, this time finding marijuana, which led to the charges on which the driver and passenger were convicted. Ibid.
In ruling that the search was impermissible, the Supreme Judicial Court stated, "[t]he record does not show sufficient attenuation of the illegal search of [the passenger] and the illegal seizure of [the driver and passenger] to warrant a finding that [the driver's] consent was an act of free will, unaffected by the taint of the illegality. . . . The trooper did not advise [the driver] of his right to refuse to consent to the search. No
The same reasoning and result apply here.
2. Other claims. The defendant's other claims require far less discussion. We need not resolve his claim that the trial judge should have held an evidentiary hearing on the voluntariness of his statements.
Sergeant Detective Mahoney and Officer Lewis should not have been permitted to testify, over objection, that the defendant was known to carry a firearm and that he would be driving a blue and silver BMW from Downtown Crossing to North Station.