In Commonwealth v. Ortiz, the defendant appealed from a second conviction of cocaine possession with intent to distribute within 100 feet of a public park or playground in violation of MGL chapter 94C, § 32A(c). He filed a motion to suppress on several grounds, including that the Commonwealth’s substitute chemist had not properly testified about the composition of what the police found during the search and that the evidence was not enough to prove he committed the previous offense. The motion judge denied his motion. The defendant appealed.
On appeal, the defendant didn’t dispute the reliability of the confidential informant, but he argued the Commonwealth had not established how he knew. The motion judge found the informant had given an accurate description of the defendant and his address and living arrangements. The defendant supplied drugs to the two heroin addicts leasing the apartment instead of rent.
The detective had independent knowledge of the nickname the defendant used, and the informant confirmed the defendant’s identity from a photograph showed to him. The informant had told the police the defendant sold drugs from a park adjacent to the apartment.
On the day in question, the informant told the detective that the defendant would meet a buyer in the park, hiding drugs in either his groin or buttocks area if he saw the police. The defendant showed up as the informant said he would. There was no buyer, but the police stopped the defendant, and when they came toward him, the defendant put his right hand toward his backside.
The Commonwealth didn’t present evidence about how the informant knew this information. The appellate court explained that it was crucial for the tip to describe the criminal activity in enough detail to show he was relying on something more than a casual rumor or reputation. In this case, the information about the living arrangements went beyond obvious details, and the police corroborated the tip details. The court reasoned that a failure to establish either reliability or basis of knowledge could be corrected by independent police corroboration.
Information provided by the informant and corroborated by the police provided them with at least a reasonable suspicion that the defendant was engaged in drug activity. The defendant had reacted as the informant had predicted he would. Additionally, one of the officers knew the defendant from prior dealings and knew that his prior history involved firearms. When the officer pat frisked the defendant for weapons, he saw a plastic bag sticking out of his waistband. The other officer would later testify that the officer lifted the defendant’s shirt, thereby revealing the plastic. The motion judge didn’t find this discrepancy relevant.
The defendant agreed a pat frisk for weapons was warranted. The judge found that once the defendant reached toward his waistband, the officers had probable cause to believe he was hiding drugs as set forth by the confidential informant, and therefore the search was justified.
The appellate court agreed. It reasoned that the search was justified by probable cause and exigent circumstances, as long as it was limited to the areas of the person and clothing that could reasonably be thought to contain the drugs.
The defendant also argued that the crime lab chemist who tested the drugs didn’t testify at trial, thereby violating his confrontation rights under the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights. The appellate court explained that independent expert opinion testimony doesn’t violate the confrontation clause as long as it’s properly offered under the evidence rules. For this and other reasons, the appellate court affirmed the judgment.
If you are charged in Massachusetts with a drug crime, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
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