COMMONWEALTH vs. VA MENG JOE.

LAURENCE, J. Va Meng Joe was convicted of trafficking in heroin in November, 1994. His appeal challenges the denial of his pretrial motion to suppress the inculpatory drugs, which were seized from his pocket by a police officer who had run up to his car while Joe was stopped at a red light. He contends that the police did not have probable cause to stop and search him on the basis of a confidential informant's tip and subsequent police observations. Viewing "the facts and circumstances as a whole in assessing the reasonableness of the officers' conduct" here, Commonwealth v. Williams, 422 Mass. 111, 116 (1996), we affirm the conviction.

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At an August, 1993. evidentiary hearing on Joe's motion to suppress, two police officers and a special agent of the Immigration and Naturalization Service (INS), whom the motion judge found credible, testified as follows. [Note 1] Special Agent Reeves of the INS received a telephone call on September 24, 1992, from a confidential informant (CI). Reeves had spoken with CI in the past but had never before used CI as an informant. CI told Reeves that CI had called Joe earlier that day and had ordered two ounces of "China White" heroin to be delivered to CI at a specific doughnut shop on Morton Street in the Roxbury section of Boston later in the day. [Note 2] The delivery was to be made by Joe himself driving alone in a black Mercedes Benz. CI knew Joe (by the alias "David") and had identified him from a photographic array several weeks earlier. [Note 3] Joe was also, according to Reeves, "known to us," although how or why he was so known was never explained.

Reeves immediately conveyed this information to Boston police detectives Morrissey and Grant, experienced members of the Asian organized crime task force. They also "knew" both CI and Joe in some undescribed way. Together the agent and the detectives planned a stakeout of the doughnut shop. Reeves then called CI and reported that "everything was all set up." In three separate vehicles, Reeves, Morrissey, and Grant drove to and parked in the area where the scheduled heroin delivery was to occur. Their surveillance began at

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about 3:00 P.M. CI was observed standing in front of the doughnut shop making several calls from a pay phone. After 15 to 20 minutes, CI walked across Morton Street and stood by gas pumps at a service station. CI's departure from the doughnut shop was not part of the police plan. Approximately 45 minutes later, Joe appeared, alone, driving a black Mercedes Benz. The car pulled up in front of the doughnut shop and slowed down almost to a stop. Joe appeared to be looking around as if he were meeting someone. He then drove off down Morton Street.

The officers followed Joe's car in their separate vehicles. Reeves became trapped in heavy traffic. Grant and Morissey, however, were close behind Joe when he had to stop at a red light. Grant got out of his car, ran in front of Joe's idling Mercedes, and displayed his badge. Joe then stepped out of his car and stood between the open car door and the driver's seat. Facing Grant, Joe inserted his right hand into his upper left hand pocket. Morrissey, who had by this time run up to the Mercedes to join Grant, saw Joe's hand movement and drew his gun. Grant reached into Joe's upper left hand pocket and pulled out two large plastic bags containing a "tannish" powder that on analysis proved to be 54.20 grams (almost two ounces) of heroin. [Note 4]

The motion judge rejected Joe's argument that these facts did not establish probable cause to stop Joe's vehicle. Evaluating the evidence flowing from the unnamed informant's tip under the "Aguilar-Spinelli" standard of probable cause, see Commonwealth v. Cast, 407 Mass. 891, 896 (1990), [Note 5] the judge concluded that (a) the facts inherent in the tip itself,

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particularly CI's role in setting up the heroin sale, demonstrated a sufficient basis of personal knowledge (a conclusion not disputed by Joe); (b) although CI had no track record as an informant, the tip was sufficiently detailed to possess "some indicia of reliability"; and (c) the "independent police corroboration of the detailed information provided by the informant established the informant's veracity," particularly since events "unfolded precisely as predicted by the informant." [Note 6]

Joe's essential appellate argument is that the police observations did not sufficiently corroborate the informant's deficient credibility. It confronts us, as so "frequently occurs In search and seizure cases, . . . with line-drawing of a difficult nature." Commonwealth v. Borges, 395 Mass. 788, 797 (1985) (Hennessey, C.J., concurring). It has been presented to us, however, as it was framed for the motion judge, as a question of the reliability of an unidentified informant's tip in the context of probable cause. That is the test for measuring the

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validity of a search and seizure pursuant to a warrant, Commonwealth v. Upton, 394 Mass. 363, 370, 374-375 (1985), or an arrest, Commonwealth v. Robinson, 403 Mass. 163, 164165 (1988), based upon such a tip. Neither the warrant nor the arrest scenario fits the present circumstances.

Rather, based upon the hearing transcript and the judge's findings, what occurred here was a police investigatory stop based upon an informant's telephone tip and subsequent police surveillance. See Commonwealth v. Willis, 415 Mass. 814, 815 (1993) (whether a police stop is an arrest or a threshold inquiry is a "highly fact-based question[ ]"). The proper focus of our attention, therefore, is whether the tip, as corroborated by independent police observations, exhibited sufficient indicia of reliability to provide reasonable suspicion to make that investigatory stop. See Commonwealth v. Lyons, 409 Mass. 16, 18-20 (1990); Commonwealth v. Ciaramitaro, 26 Mass. App. Ct. 110, 113-115 (1988). Cf. Alabama v. White, 496 U.S. 325, 328-331 (1990). On this record, we conclude that reasonable suspicion existed to justify the stop. [Note 7]

In Commonwealth v. Lyons, 409 Mass. at 19, the Supreme

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Judicial Court set forth the analysis to be employed in determining whether the police had sufficiently reliable information to warrant making an investigatory stop:

"To meet the 'reasonable suspicion' standard in this Commonwealth, police action must be 'based on specific, articulable facts and reasonable inferences therefrom' rather than on a hunch.' . . . [I]f the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of those factors. Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible. An investigatory automobile stop requires that the Commonwealth prove that the officer 'has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime.'" [Note 8] (Emphasis added.)

There is no question here, as the judge correctly found, concerning CI's basis of knowledge, since CI had set up the heroin delivery by Joe. Such involvement implied the informant's first-hand and direct knowledge rather than the receipt of casual rumor or the implication of Joe because of his unsavory reputation. See Commonwealth v. Cast, 407 Mass. at 893, 896; Commonwealth v. Rivera, 29 Mass. App. Ct. 290, 293 (1990); Commonwealth v. Fleming, 37 Mass. App. Ct. 927, 928 (1994).

As to the "veracity" prong of the analysis, it is true that CI had done nothing to establish presumptive reliability, such as providing tips producing prior arrests and convictions, Commonwealth v. Kaufman, 381 Mass. 301, 302 (1980), or seizures of contraband, Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991). CI's tip nevertheless reflected first-hand information from a known informant about a pending drug deal involving both the defendant and the informant. That

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factor weighed in favor of CI's credibility, Commonwealth v. Bakoian, 412 Mass. 295, 301 (1992); Commonwealth v. Rivera, 26 Mass. App. Ct. at 293, as did the fact that CI was reachable by the authorities. See Commonwealth v. Cast, 407 Mass. at 898.

Moreover, as the judge also found, the tip contained fairly specific information of the sort not easily obtainable by a casual bystander. Details such as the identity of the drug dealer, [Note 9] the vehicle he would be driving, his exact destination, and the approximate time frame when he would arrive constituted significant indicia of CI's reliability that compare favorably with precedent, particularly under the applicable "less rigorous showing" standard. See Commonwealth v. Anderson, 366 Mass. 394, 399-400 (1974) (anonymous informant's tip reflected personal knowledge and accurately predicted defendant's movements); Commonwealth v. Cantalupo, 380 Mass. 173, 174, 176 (1980) (known informant, considered reliable by police, identified defendant as possessing and selling drugs at a certain location); Commonwealth v. Bakoian, 412 Mass. at 301-302 (known informant's tip identified drug dealers, their vehicle, their destination, and approximate time of arrival); Commonwealth v. Blake, 23 Mass. App. Ct. 456, 457-459 (1987) (known informant possessing personal knowledge identified defendant as dealing cocaine from a particular car and predicted when and where the activity would take place); Commonwealth v. Rivera, 29 Mass. App. Ct. at 293 (known informant set up drug deal with defendant, described automobile to be used, and predicted time and place of arrival); Commonwealth v. Fleming, 37 Mass. App. Ct. at 928 (reliability of known informant established by his participation in the drug buy, identification of the defendant, and precise predictions as to the time and place of the delivery). Compare Alabama v. White, 496 U.S. at 332 (anonymous tipster's prediction of identified defendant's future behavior, including how, when and where defendant would conduct narcotics transaction, indicated someone "likely to . . . have access to reliable information about [the defendant's] illegal activities"). Contrast Commonwealth v. Lyons, 409 Mass. at

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17, 20-21 (no reliability in anonymous tip that defendant "would be heading for Bridgton, Maine" in a particular car with drugs just purchased in Chelsea, which reflected no special knowledge of defendant's affairs and provided only details "obtainable by an uninformed bystander"); Commonwealth v. Carrasquillo, 30 Mass. App. Ct. 783, 786-787 (1991) (unidentified informant's tip, the source of which was unknown, that defendant had gone to New York City that day and would be returning to his home in Springfield in the afternoon with cocaine and an Hispanic male who was planning to set up a drug distribution system, possessed no indicia of reliability).

Even were there a close question as to the veracity of CI's information, the police surveillance here independently corroborated the tip sufficiently to satisfy the Lyons standard. "The police corroboration of such 'nonobvious [and predictive] details' [including the defendant's identity, exact destination, and approximate time of arrival] provided by the informant, prior to investigating the defendant and the vehicle, removed any doubt as to the informant's reliability." Commonwealth v. Bakoian, 412 Mass. at 302. [Note 10] Police observations verifying a defendant's future expected behavior, particularly his showing up where, when and how predicted by an informant, have been regarded as especially confirmatory of the reliability of the tip in a number of cases. See Commonwealth v. Anderson, 366 Mass. at 400; Commonwealth v. Robinson, 403 Mass. at 166 n.2; Commonwealth v. Cast,

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407 Mass. at 898, 899-900; Commonwealth v. Cosme, 15 Mass. App. Ct. 448, 452-453 (1983); Commonwealth v. Blake, 23 Mass. App. Ct. at 459; Commonwealth v. Rivera, 29 Mass. App. Ct. at 293; Commonwealth v. Rosario, 37 Mass. App. Ct. 920, 922 (1994); Commonwealth v. Fleming, 37 Mass. App. Ct. at 928. Contrast Commonwealth v. Carrasquillo, 30 Mass. App. Ct. at 786-787 (police observed defendant's car going in a different direction and toward an apparently different destination than predicted by informant; deemed insufficient corroboration).

Finally, enhancing both the reliability of CI's information and the corroborative effect of the police investigation in this case was Joe's arguably suspicious conduct: slowing almost to a halt in front of the doughnut shop and looking around as if he were meeting someone, then driving off. See Commonwealth v. Wren, 391 Mass. 705, 707-708 (1986) (officer's observations of suspect's vehicle "traveling very slowly and then speeding up" one of the elements supporting a stop on reasonable suspicion); Commonwealth v. Oreto, 20 Mass. App. Ct. 581, 586 (1985) (experienced trooper could infer from, inter alia, abnormally slow speed of vehicle, likelihood of drug offense being committed inside car); Commonwealth v. Rosario, 37 Mass. App. Ct. at 922 (defendant said by informant to be going to sell drugs was observed by police at the location and time predicted to drive up and begin "obviously looking for someone [he] intended to meet" there, a circumstance adding to the verification of the tip). Cf. Commonwealth v. Anderson, 366 Mass. at 400 (defendant's "acting somewhat suspiciously in looking back over his shoulder [as he walked briskly out of the bus terminal] . . . lends some corroborative effect to the facts known to the police"). Observations of a defendant's conduct that would appear innocent or ambiguous to the casual onlooker can "take[ ] on special significance 'to the trained eye of the officer,' [and] may be relied on by an officer in making his or her assessment" in search and seizure situations. Commonwealth v. Cast, 407 Mass. at 900. [Note 11]

We conclude that CI's tip and the officers' corroborative

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observations satisfied the less rigorous showing required by the reasonable suspicion standard. They provided the police with sufficient specific, articulable, and reliable facts, including the rational inferences the police were entitled to draw from those facts, to justify briefly stopping Joe for a threshold inquiry. The police officers acted neither on hunch nor instinct, but rather with "a particularized and objective basis for suspecting [Joe] . . . of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418 (1981). [Note 12]

At that point, the officers were entitled to conduct a brief inquiry of Joe "to determine his identity or to maintain the status quo while obtaining more information." Commonwealth v. Caldwell, 36 Mass. App. Ct. 570, 579, rev'd on other grounds, 418 Mass. 777 (1994), quoting from Adams v. Williams, 407 U.S. 143, 146 (1972). Joe's subsequent actions in getting out of the driver's seat, standing behind the driver's side door, and reaching into his upper left hand pocket frustrated that limited investigatory inquiry but warranted the police seizure of the incriminating bags of heroin.

The police officers did not (and Joe makes no argument to the contrary) engage in a disproportionate use or show of

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force. They did not block his car, already stopped at a red light, nor display any weapons as they initially approached the car. Contrast Commonwealth v. Bottari, 395 Mass. 777, 782 (1985); Commonwealth v. Sanderson, 398 Mass. 761, 766 (1986). Our law unquestionably recognizes the right of the police, when an investigator) stop is justified, to take reasonable precautions for their own protection, based upon their analysis of the situation they confront and their experience. Commonwealth v Johnson, 413 Mass. 598, 600- 601 (1992). The issue in evaluating the validity of the police action that discovered Joe's illegal drugs is whether all the circumstances faced by Officer Grant, taken together, were "enough to warrant belief by a 'reasonably prudent man . . . that his safety or that of others was in danger.'" Commonwealth v. Fraser, 410 Mass. 541, 546 (1991), quoting from Terry v. Ohio, 392 U.S. 1, 27 (1968). We are persuaded that Grant's reaching into Joe's pocket, which revealed the heroin, was reasonable under that test. Grant's action was undoubtedly a warrantless search, but it was within constitutional limits, being "confined to what was minimally necessary to learn whether the suspect [was] armed." Commonwealth v. Silva, 366 Mass. 402, 408 (1974). It constituted, as required, a degree of intrusion that was "proportional to the degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395 Mass. at 794.

Joe's sudden emergence from his car while stopped in traffic at a red light, with his body partly concealed behind the car door but facing Grant, could reasonably have been considered by the police unexpected, suspicious, and menacing. See Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 210 (1991); Commonwealth v. Torres, ante 6, 7-9, further appellate review granted, 422 Mass. 1106 (1996). Joe's behavior, in conjunction with the recognized "inordinate risk' every police officer assumes when approaching a vehicle she has stopped, see Commonwealth v. Sumerlin, 393 Mass. 127, 130, 132 (1984), cert. denied, 469 U.S. 1193 (1985), may well have itself justified a limited search for weapons on Joe's person. See Commonwealth v. Santiago, supra at 210-211.

We need not, however, rely on those factors alone. Joe's simultaneous act of reaching into his pocket as he confronted Grant realistically transformed the situation into one of imminent threat. It now supported a reasonable police belief that Joe might not only be armed but was also preparing to

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pull out a weapon. [Note 13] See Commonwealth v. Fraser, 410 Mass. at 543, 545-546 (officer saw defendant bend down behind truck, then confront officer with hands in pockets; frisk of pockets for weapon upheld); Commonwealth v. Johnson, 413 Mass. at 600-601 (officer's observation of defendant reaching into his pants justified search of pants for weapon). Cf. Commonwealth v. Patti, 31 Mass. App. Ct. 440, 441, 443 (1991) (even though defendant was apparently cooperative and weather was cold, officer could interpret defendant's putting his hands in his pockets late at night in a high crime area as a potential reach for a weapon).

In response to this reasonably perceived threat to safety, Officer Grant did not engage in a general exploratory search for evidence of criminal activity. Nor did he conduct a general frisk of Joe's entire person for possible weapons, as he would have been justified in doing. See Commonwealth v. Owens, 414 Mass. 595, 600 (1993). Instead, his limited search, of the very pocket into which Joe had thrust his hand, was "'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Commonwealth v. Silva, 366 Mass. at 407, quoting from Terry v. Ohio, 392 U.S. at 19.

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Grant properly "confined his search strictly to what [was] minimally necessary to learn whether . . . [Joe was] armed." Commonwealth v. Silva, supra at 408. See also Commonwealth v. Robbins, 407 Mass. 147, 149, 152 (1990) (protective search for weapons that was limited to suspicious object seen in crack in front seat was reasonable).

In this situation, Officer Grant "'had no more than a few seconds in which to assess the extent, if any, of the danger, and to ascertain the most effective and least intrusive means of protecting himself. Commonwealth v. Sumerlin, [393 Mass.] at 129-130.' . . . Given the circumstances faced by the officers in this case, they were warranted for their own protection in finding out what [Joe] had concealed inside his [pocket]. Police officers are 'not required to gamble with their personal safety.'" Commonwealth v. Johnson, 413 Mass. at 601-602.

The fact that the limited, protective search of the pocket yielded not a weapon but illegal drugs was not ground for invalidating the seizure. See id. (seizure of incriminating cocaine concealed in defendant's pants, discovered by police who saw him hide something in pants and searched there for a possible weapon, held proper); Commonwealth v. Santiago, 30 Mass. App. Ct. at 210-211 (frisk of defendant's person by police reasonably concerned that defendant might be armed, which resulted in seizure of potentially incriminating heroin in defendant's pocket, was proper although the case was remanded on other grounds); Commonwealth v. Patti, 31 Mass. App. Ct. at 440, 443-444 (officer's search of defendant's pocket, out of concern he "might be reaching for a weapon" after defendant put his hands in pockets, which revealed incriminating drugs in pocket, held valid). [Note 14]

"In sum, it is our conclusion that, given these circumstances,

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what occurred here was a proper threshold inquiry producing evidence which was justifiably employed in the trial against the defendant. We see no error." Commonwealth v. Anderson, 366 Mass. at 401.

Judgment affirmed.