Appeals Court of Massachusetts -- February 28, 2012
Facts: Defendant, Arias, appeals his conviction for unlawfully carrying a firearm and possession of ammunition without a license. On the morning of May 29, 2008, Massachusetts Bay Transportation Authority’s (MBTA) security unit received information from two MBTA supervisors that "other people" had informed them that one of the contract cleaners may be carrying a gun in the small of his back while working on the property and possibly one in his car. Without identifying their sources, the supervisors then provided the MBTA officer with information regarding the defendant, including his name, where he worked, the type of vehicle he drove, and other information from his employment records. Relying on this information, but without ascertaining the identities of, or speaking to, the "other people" from whom the supervisors had obtained their information, MBTA officers proceeded to North Station where they saw the BMW, purportedly driven by the defendant, parked and unoccupied on an access road. From its license plate they learned that the car was registered to a woman who lived at an address matching the defendant’s employment record and further investigation revealed that the defendant did not have a firearms license.
The officers waited and watched the vehicle from a distance. Around 1:00 A.M., the defendant returned to the car, opened the door and sat down in the passenger seat to put on work boots. At that point, the sergeant approached the vehicle with another officer close behind. They identified themselves as MBTA Police and as they approached, the defendant stepped out of the car. He was informed that the MBTA had received information that an employee was carrying a firearm and instructed that for his safety, they were going to conduct a pat down. When he nodded his head affirmatively, the pat down proceeded, but no firearm was located. With the defendant’s consent, the officers then searched the vehicle and found a loaded pistol beneath a floor mat under the driver's seat. The defendant immediately declared, "I found it…I was going to call the police but I didn't. I just put it in the car." The defendant was then handcuffed and read the Miranda warnings as he was led to a nearby cruiser. After the defendant acknowledged the warnings, he was asked to explain the gun, whereupon the defendant essentially repeated his account of how he found the gun.
Issue 1: Whether the motion judge erred in denying the Defendant’s motion to suppress based on the court’s determination that prior to arrest, the Defendant consented to the search of his motor vehicle which resulted in the discovery of the firearm and ammunition.
Yes. It was an error to deny the motion to suppress, therefore the firearm and ammunition should not have been admitted at trial. The Defendant’s consent for the search of his vehicle was tainted by the unlawful stop and frisk by which it was preceded. First, the investigatory stop must be lawful. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. Here, there was no doubt that the defendant was "stopped" in a constitutional sense when the sergeant 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. When the reasonable suspicion is based on an informant's tip, the Commonwealth must show the basis of knowledge of the source of the information and the underlying circumstances demonstrating that the source of the information was credible or the information reliable. Here, the supervisors expressly told the police 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. 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.
Free and voluntary are defined by case law to be "unfettered by coercion, express or implied, and . . . something more than mere ‘acquiescence to a claim of lawful authority.’" "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." Relying on the findings of the Supreme Judicial Court in Commonwealth v. Loughlin, 385 Mass. 60 (1982), this Court found that the record does not show sufficient attenuation of the illegal search and seizure of the defendant to warrant a finding that his consent was an act of free will, unaffected by the taint of the illegality. The officer did not advise the Defendant of “his right to refuse to consent to the search. No significant time elapsed between the illegality [of the stop] and the 'consent.' No intervening event occurred that dissipated the effect of the illegality." Judgment reversed.
Issue 2: Whether the trial judge erred in allowing introduction of hearsay testimony.
Yes. The trial judge erred in allowing the officers to testify, over objection, that the defendant was known to carry a firearm and that he would be driving a BMW to North Station. The testimony was hearsay, perhaps totem pole hearsay, as the officers received all of that information from the supervisors, who did not testify and who received at least some of it from unnamed others. Admission of testimony that went beyond what was necessary to show the state of police knowledge violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution. The error was not harmless, as the testimony bore on issues central to the Commonwealth's case and central to the defense. Judgment reversed.
Note: The court declined to resolve Defendant’s claim that the trial judge should have held an evidentiary hearing on the voluntariness of his statements. (HG)