finding that the search was beyond the scope of Terry where there was no evidence that officers feared for their safety before asking defendant to remove his shoes
How later courts described this case
- finding that the search was beyond the scope of Terry where there was no evidence that officers feared for their safety before asking defendant to remove his shoes
- wherein a defendant attempted to dispose of evidence when illegally seized by police and the court ruled that such disposal did not constitute an independent, intervening act sufficient to justify a subsequent arrest because the disposal was a direct and immediate response to illegal police conduct
- finding "close temporal proximity between the illegal arrest and the defendant's response"
- first-time informant said defendant seen with heroin for sale at bar; corroboration that defendant was there was insufficient to establish probable cause to arrest
Written by the judges who cited it.
The opinion
Hennessey, C.J.
(concurring). As frequently occurs in search and seizure cases, we are dealing here with line-drawing of a difficult nature. Necessarily so, because of the subtle balance that we must preserve between law enforcement and the protection of individual privacy. A majority of the court, not counting my contribution, says the evidence in this case must be excluded. The case is close enough to the line so that I bow to the majority’s wisdom, but not without doubt on my part. First, I assume that the court is approaching the issue of the informant’s reliability in light of this court’s recent emphasis that the dual test of Aguilar-Spinelli still has vitality under Massachusetts law. In that light, I am troubled by the court’s *798 failure to confront more fully the principle of Draper v. United States, 358 U.S. 307, 313 (1959). The reliability of the anonymous informant, under the Draper principle, can be found where the informant particularly describes the appearance, conduct, and expected behavior of the suspect, and the description is later corroborated by observations of the police before they detain the suspect. As in Draper , the description here was not stale news, but right up to the hour, if not to the minute. A good argument can be made that the details provided by the informant here compare favorably with those in Draper , including a description of the precise pocket of the suspect where the police could observe a bulge caused by the presence of the contraband.
I write this brief concurrence with the hope that the court. will in the future give continued credibility to the Draper principle, because that approach, carefully applied, is both in the public interest, and consistent with the spirit of AguilarSpinelli. I add only that I do not agree with the dissenting opinion in this case, which relies, in part, on Terry v. Ohio, 392 U.S. 1 (1968). Clearly the police here (and also in Commonwealth v. Bottari, ante, which is published simultaneously with this opinion), were detaining the suspect for purposes of making a search for contraband. They were not merely, for their own protection, conducting a pat-down for weapons while they questioned a suspicious person. The requisite for a search and seizure in this Commonwealth is probable cause, and not the “articulable suspicion” of Terry .