In an unpublished opinion under rule 1:28 the Massachusetts appeals court ruled in COMMONWEALTH vs. BELIOCH MARCELIN 08-P-1823 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 (2010) that a firearm recovered after a stop of the defendants motor vehicle must be suppressed as the stop was improper.
The court stated “An investigatory automobile stop requires that the officer have ‘a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.’ Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984). ‘[M]ere possession of a handgun [is] not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun.’ Commonwealth v. Couture, 407 Mass. 178, 183 (1990). See Commonwealth v. Alvarado, 423 Mass. 266, 270 (1996) (‘[C]arrying a concealed weapon is not, standing alone, an indication that criminal conduct has occurred or is contemplated’). However, ‘possession of a firearm by a minor would be presumptively illegal as unlicensed and therefore ground for police investigation.’ Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 70 n.10 (1997).
In order for suspicion to be reasonable, ‘police action must be ‘based on specific, articulable facts and reasonable inferences therefrom’ rather than on a ‘hunch” that criminal activity is afoot. Lyons, supra, quoting from Wren, supra. At the time that police approached this vehicle, they had not observed any illegal activity in connection with its operation or on the part of its occupants. This being so, reasonable suspicion here could only have arisen by virtue of the front passenger carrying a gun and being under the age of twenty-one. See Grinkley, supra. The tip did not address the front passenger’s age, a point to which we will later return.
In evaluating, then, whether the informant’s tip provided reasonable suspicion that the passenger was armed, we focus on (1) the informant’s reliability and (2) his basis of knowledge. Alvarado, supra at 271. ‘Independent police corroboration may make up for deficiencies in one or both of these factors.’ Commonwealth v. Redd, 50 Mass. App. Ct. 904, 906 (2000), quoting from Lyons, 409 Mass. at 19.
The fact that an informant’s identity was known to the police, as here, generally entitles the tip to greater weight. Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 234 (2006). However, lack of anonymity is only one factor to be considered — it does not automatically make the tip reliable.Commonwealth v. Atchue, 393 Mass. 343, 347 (1984). See Commonwealth v. Fleurant, 2 Mass. App. Ct. 250, 253 (1974) (‘specificity of the information supplied, the affiant’s occasion to question the informant, and the fact that the informant was named . . . are all relevant circumstances in determining the informant’s credibility’).
The motion judge found that Keaveney had ‘received reliable information [from the informant] in the past.’ The record, however, does not support this. The only testimony at the motion hearing in this regard was that the same informant had ‘provided information’ in the past. There was nothing to suggest that this information had ever led to an arrest or a conviction. See Commonwealth v. Bottari, 395 Mass. 777, 783 (1985);Commonwealth v. Amral, 407 Mass. 511, 515 (1990) (veracity established because informant’s past information led to arrest and conviction of subjects for similar offense). The judge’s finding as to the reliability of the carded informant’s past information was plainly wrong and we are not bound by it. Commonwealth v. Hilton, 450 Mass. 173, 178 (2007).
Nor was the basis of the informant’s knowledge established. Absent some description of the ‘manner in which the information was gathered,’ the basis of the informant’s knowledge can be shown if the tip ‘describe[d] the accused’s criminal activity in sufficient detail that the magistrate may know he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.’ Commonwealth v. Robinson, 403 Mass. 163, 165 (1988), quoting from Spinelli v. United States, 393 U.S. 410, 416 (1969). SeeCommonwealth v. Cast, 407 Mass. 891, 897 (1990) (basis of knowledge demonstrated where it could be inferred from level of detail of tip that informant personally observed criminal activity). No explanation as to the basis of the informant’s knowledge or any such detail as to criminal activity was provided here.
The informant described the vehicle, its license plate, and where it was located. He or she also indicated that it would be driven by a white female, and that a black male wearing a black, hooded sweatshirt and keeping a commonly-known type of gun in his waist area would be in the passenger’s seat. Without more, these do not indicate that criminal activity was afoot. The informant did not state that the suspect was underage, nor even that he or she had personally observed the male with the gun described.
Independent police corroboration could not compensate for the shortcomings of this tip. The nature of the information provided did not permit the police to corroborate specific nonobvious facts showing the tipster’s familiarity with the vehicle’s occupants or with the male’s possession of a firearm. The police could do no more than verify the make and license plate of the vehicle, a general location, and the race and gender of two of its occupants. This adds little to either prong of the applicable test for determining whether the tip provided the requisite reasonable suspicion to stop the vehicle.
In view of this, we conclude that the informant’s tip did not provide reasonable suspicion that the front passenger was armed. That the tip also did not address the passenger’s age and whether subsequent police observation supplemented the tip in this regard is therefore immaterial. The defendants’ motions to suppress the items seized following the stop should have been allowed. Because such evidence was central to the defendants’ convictions, they must be vacated.
Although an unpublished opinion, A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations, not as binding precedent. The case is a good example of the requirements of Veracity and basis of knowledge in regards to informants tips. Both have to be satisfied and unlike the federal standard a shortcoming of one cannot be made up by a preponderance of the other.
Attorney Ronald. A. Sellon