MA: Anonymous tip only corroborated on obvious details not sufficient

The state failed to corroborate at all the basis of knowledge or reliability of the anonymous source. The described car showing up at the appointed time isn’t enough. Commonwealth v. Pinto, 2017 Mass. LEXIS 21 (Jan. 23, 2017):

“To establish that the transmitted information bears adequate indicia of reliability, the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test).” Lopes, 455 Mass. at 155-156. See Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985). “Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible.” Commonwealth v. Depina, 456 Mass. 238, 243, 922 N.E.2d 778 (2010), quoting Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). Although independent police corroboration may “make up for deficiencies in one or both of these factors” (citation omitted), Depina, supra, “each element of the test must be separately considered and satisfied or supplemented in some way.” Upton, 394 Mass. at 376.

Here, the Commonwealth satisfied neither the basis of knowledge test nor the veracity test, and there was not sufficient independent corroboration of the information in the broadcast concerning a crime having been committed after the judge struck the source of the radio broadcast from her findings.

As to the basis of knowledge, there was no evidence indicating how the individual responsible for the radio broadcast came to have the information about the defendant’s whereabouts. See Commonwealth v. Fraser, 410 Mass. 541, 546, 573 N.E.2d 979 (1991). The radio broadcast itself did not contain any details that would suggest that the person providing the information had firsthand knowledge of the alleged domestic incident. Cf. Depina, 456 Mass. at 243 (holding basis of knowledge test satisfied where dispatch was based on caller’s indication that she personally heard gunshots and saw suspect flee).

The Commonwealth similarly failed to establish the veracity of the radio broadcast. To satisfy the veracity test, the Commonwealth needs to show the source of information had either a demonstrated history of reliability, Commonwealth v. Mubdi, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010), or the existence of “circumstances assuring trustworthiness on the particular occasion of the information’s being furnished,” 2 W.R. LaFave, Search & Seizure § 3.3(c) (5th ed. 2012). See Anderson, 461 Mass. at 625.

Here, the record contained no evidence of the source providing the information, so there could be “no evidence regarding the [source’s] past reliability or reputation for honesty.” Anderson, 461 Mass. at 622. See Depina, 456 Mass. at 243-244. Nor did the radio broadcast itself provide any indications of its veracity. See Anderson, 461 Mass. at 624-625 (holding veracity test may be satisfied where anonymous caller makes statements “comparable to an excited utterance”). In the present case, the content of the radio broadcast was devoid of any detail as to whether the information came from a declarant in an excited state, whether it came from a percipient witness to the abuse, or whether it bore any other similar indications of trustworthiness.

Finally, the police did not provide adequate independent corroboration to remedy the deficiencies under either test. The only police corroboration was that the defendant was in the general vicinity of Orton Marotta Way and driving a vehicle that matched the description given over the radio. The motion judge’s conclusion that the radio broadcast was corroborated by the fact that the vehicle was near the house of the defendant’s mother is not supported by the record. To the contrary, no evidence was presented that the police had information independent of the radio broadcast that the mother lived on Orton Marotta Way.

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