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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)