Commonwealth v. Dasilva

Berry, J.

(concurring). I agree that the motion to suppress should not have been allowed, but I do so for reasons different from those adopted in the majority opinion. Specifically, I do not believe that the tipster, who was totally unknown, and as to whom no verifying background was provided, met the standards of reliability or basis of knowledge and veracity prongs required by the Aguilar/Spinelli duality, see Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 U.S. 410, 415-416 (1969), as continuously endorsed as a matter of Massachusetts constitutional law. See Commonwealth v. Upton, 394 Mass. 363, 373-377 (1985). My divergence with the majority approach arises because, as the motion judge found and as conceded by the Commonwealth, neither the officers nor Sergeant Bailey knew the source of the information and only Sergeant Bailey knew that it had been received by a Boston police detective from a third party. Therefore, I do not accept, *563 as the majority does, that the anonymous tip can be added to a probable cause determination (or, I would suggest, more appropriately a reasonable suspicion determination) that independent police corroboration could compensate for the informant’s deficiencies.

I concur in the affirmance holding that suppression was not warranted because, in my view, the stop of the defendant was constitutionally supportable based upon the series of events that transpired when the police encountered the defendant, including the police officers’ identification of the defendant based on their familiarity with him in prior involvements (including one officer’s knowledge of the defendant’s outstanding firearm case), and the defendant’s objectively suspicious actions upon seeing the police approach in the marked cruiser, e.g., the defendant’s furtive gesture — a “definite defined motion,” described as either a clutch or a grab of his hand moving to his waistband — and the defendant fleeing up the stairs of the building, where he had been standing when the police cruiser approached. These actions occurred before the police ordered the defendant to stop and engaged in pursuit of him. See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). Later happenings, including the defendant’s throwing of the firearm over the wall, would, in turn, not be subject to suppression because, at the point of original pursuit, there was reasonable suspicion. Ibid. Accordingly, I concur in the result but would not rely on the flawed informant information. Instead, I would rest denial of the motion to suppress on these events taking place at the initial point of police presence on the scene, and the defendant’s ensuing objectively suspicious actions.