Commonwealth v. Gonzalez , 93 Mass. App. Ct. 6 ( 2018 )

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16-P-1035 Appeals Court
COMMONWEALTH vs. RADHAMES GONZALEZ.
No. 16-P-1035.
Middlesex. September 12, 2017. - March 12, 2018.
Present: Rubin, Neyman, & Henry, JJ.
Controlled Substances. Firearms. Practice, Criminal, Motion to
suppress, Confrontation of witnesses. Constitutional Law,
Search and seizure, Investigatory stop, Reasonable
suspicion, Confrontation of witnesses. Search and Seizure,
Motor vehicle, Reasonable suspicion, Threshold police
inquiry. Threshold Police Inquiry. Motor Vehicle,
Firearms. Witness, Expert. Evidence, Expert opinion,
Scientific test.
Indictments found and returned in the Superior Court
Department on October 31, 2013.
A pretrial motion to suppress evidence was heard by Thomas
P. Billings, J., and the cases were tried before him.
Steven J. Rappaport for the defendant.
Clarence H. Brown, Assistant District Attorney, for the
Commonwealth.
HENRY, J. After a jury trial in Superior Court, the
defendant, Radhames Gonzalez, was convicted of possession of
cocaine with intent to distribute, carrying a firearm without a
2
license, possession of ammunition without a firearm
identification card, possession of a large capacity feeding
device, and possession of a large capacity weapon during the
commission of a felony.1 The defendant argues that (1) his
motion to suppress should have been allowed because the
information supplied by a confidential informant (CI) did not
justify the investigatory stop of his motor vehicle; and (2) the
admission in evidence of a substitute chemist's testimony
deprived the defendant of his right to "confront" the witness.
We affirm.
Background. We set forth the facts as found by the motion
judge, supplemented where necessary with uncontroverted evidence
drawn from the record of the suppression hearing. See
Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000).
Sergeant William West of the Billerica police department
testified that he had been a patrol sergeant for two years, and
that he had formerly been a detective in the criminal bureau for
sixteen years. As a detective, he had investigated all types of
crimes including narcotics offenses and had worked with
informants "no less than a hundred times." In June, 2013, about
one year after he had become a sergeant, West was contacted by a
1 The defendant then waived his right to a jury and was
tried before the judge on sentence enhancements connected with
two of the firearms charges. A motion for a required finding of
not guilty was allowed as to both enhancements.
3
CI with whom West had worked on more than one occasion when he
was a detective.
On this occasion, the CI provided a description of a man
who went by the name of "Eddie," later identified as the
defendant, who was dealing heroin and cocaine in and around the
Gaelic Club (club) in Lowell. The CI described the defendant as
a Dominican male who drove a white Buick Rendezvous CXL sport
utility vehicle bearing license plate 676 NB4. The CI indicated
that on Friday nights the defendant used the club as a base of
operation and that the CI personally observed the defendant make
cocaine sales in the club's bathroom. The CI also indicated
that the defendant would receive telephone calls and travel to
individuals' homes to sell drugs. The CI also told West that
the defendant usually carried a firearm and the CI believed the
defendant did not have a valid driver's license.
Because West was no longer involved in narcotics
investigations and because the club was in Lowell, not
Billerica, he passed the CI's tip and contact number to Sergeant
Noone of the Lowell police department. West explained to Noone
that the CI was an informant who had been "signed up by
Billerica" and had been reliable in the past, including having
given information that led to arrests and seizures. Noone
assigned the matter to Lowell police Detective Rafael Rivera.
When Rivera spoke by phone with the CI, the CI repeated what he
4
had disclosed to West and that he had seen the defendant in the
club only a "couple of days before," in possession of drugs and
his gun. Rivera ran the license plate number the CI had given
him and the records showed that the vehicle was registered to
Kennedy Ruiz-Mejia.2
On Friday, June 28, 2013, at about 7:25 P.M., Rivera and
three other undercover officers, in four separate vehicles, set
up surveillance around the club. Rivera saw a vehicle matching
the make, model, license plate, and color supplied by the CI.
After a few minutes, a man matching the description of "Eddie"
exited the club, got into the vehicle, and drove away. When the
vehicle turned into a gasoline station, Lowell police Detective
Michael Kandrotas pulled in behind it, activating the concealed
lights and siren on his unmarked cruiser.
Kandrotas exited his vehicle and, as he approached,
observed the driver make a quick movement to his right, as if to
toss something into the back seat. Because the defendant had
been reported to carry a firearm, Kandrotas had the defendant
exit the vehicle. Rivera joined Kandrotas and recognized the
defendant as someone he knew from prior narcotics
investigations.
2 After the defendant was arrested, Rivera learned that
Ruiz-Mejia had passed away in 2011.
5
Rivera confirmed through dispatch that the defendant did
not have a current driver's license. The defendant was placed
under arrest for operating a vehicle without a license. Rivera
searched the defendant and found $5,100 on his person. The
defendant was transported to the police station. During
booking, it was determined that the defendant had an alias of
Eddie Mambru.
Because the defendant's vehicle was blocking a gasoline
pump, and the police were going to search it, the police moved
it across the street to a school parking lot after the defendant
was arrested. The Lowell inventory policy, which was introduced
at the motion hearing, provides for the inventory and towing of
a vehicle that was, or is, being used in the commission of a
crime. When police opened the rear door, they observed a loaded
.40 caliber semiautomatic handgun poorly concealed in a sock on
the floor. In a second sock, police recovered twenty-seven
bags, each containing a powder later confirmed to be cocaine.
The motion judge found that the police had conducted an
investigatory stop based on information supplied by the CI. The
judge recognized that in such circumstances, the CI's
information must establish both the reliability and basis of
knowledge prongs set forth under the Aguilar-Spinelli test.3 The
3 Under the Aguilar-Spinelli test, "[t]o establish the
reliability of the information under art. 14 [of the
6
judge reasoned that "'[b]ecause the standard is reasonable
suspicion rather than probable cause, a less rigorous showing in
each of these areas is permissible' . . . [and] independent
police corroboration may 'make up for deficiencies in one or
both of these factors.'" Commonwealth v. Pinto, 476 Mass. 361,
364 (2017), quoting from Commonwealth v. Depina, 456 Mass. 238,
243 (2010).
Applying this standard, the judge ruled that the CI's basis
of knowledge was self-evident from the tip and founded on
personal observation. On the veracity prong, according to West,
"The information [the CI] provided allowed [West] to seize
various types of narcotics, make drug seizures and drug arrests,
as well as seizing money, the proceeds of drug profits."
Through cross-examination, defense counsel elicited that
individuals who make controlled buys are considered to be
"informant[s]"; that "if [a] person had, in fact, made a series
of purchases on behalf of the Billerica [p]olice [d]epartment,
[West] could honestly say that that individual had provided
[West] with information that if it did lead to arrest, to arrest
Massachusetts Declaration of Rights], '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).'" Commonwealth v.
Anderson, 461 Mass. 616, 622, cert. denied, 568 U.S. 946 (2012),
quoting from Commonwealth v. Mubdi, 456 Mass. 385, 395-396
(2010). See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
7
and seizure . . . "; and that, specifically, this CI had
previously made controlled buys for the Billerica police
department. The Commonwealth did not ask West on redirect
examination whether the CI previously had been a tipster and not
merely a controlled buyer. The judge specifically found: "I
understand [West's] testimony to mean that the CI supplied
substantive information as well as helping with controlled
buys." The judge also found that knowledge of the CI's past
track record of reliability with Billerica, which was conveyed
to Lowell, was sufficient to "satisf[y] the veracity test."
Discussion. 1. Motion to suppress. a. The stop. "In
reviewing a denial of a motion to suppress, we accept the
judge's subsidiary findings of fact absent clear error, but
conduct an independent review of the judge's ultimate findings
and conclusions of law." Commonwealth v. Washington, 449 Mass.
476, 480 (2007).
Here, because there is no live dispute regarding the CI's
basis of knowledge, given the CI's personal observations of the
defendant in possession of drugs and a gun only days prior to
the tip, we focus on the evidence of the CI's veracity. The
motion judge gave West's testimony regarding the CI's prior
track record its plain and ordinary meaning, namely that on more
than one previous occasion the CI had directly provided material
information regarding violations of the law and, further, that
8
the CI provided "substantive information." The judge's finding
of fact comports with the language West used, the testimony that
the informant had been reliable in the past, and the common
situation presented in police work in which a CI provides
material information regarding criminal violations and is then
engaged to execute a controlled buy.4 See, e.g., Commonwealth v.
Perez-Baez, 410 Mass. 43, 44-46 (1991) (recitation that
informant had "provided information" previously that led to
arrests and seizure of cocaine sufficiently established
informant's veracity); Commonwealth v. Mendes, 463 Mass. 353,
365 (2012) (CI provided information and made controlled buy);
Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926 (2004)
(same); Commonwealth v. Velez, 77 Mass. App. Ct. 270, 273 (2010)
(same); Commonwealth v. Lima, 80 Mass. App. Ct. 114, 119 n.5
(2011) (same); Commonwealth v. Perez, 90 Mass. App. Ct. 548, 554
(2016) (same).
4 We also note that the CI knew specifically to telephone
West to convey information regarding an individual's illegal
drug sales in this case and that in anticipation of that
conversation he had obviously noted the make, model,
registration number, and color of that individual's vehicle,
together with his method of operation, which suggests at least a
likelihood that this was not his first tip. Additionally, we
note that the detectives did corroborate several pieces of
information from the CI before the stop, including the make,
model, color, and license plate number of the vehicle that the
defendant would be driving. However, corroboration of innocent
details "only slightly" enhances the CI's reliability and is
insufficient on its own to satisfy the veracity prong. See
Commonwealth v. Lyons, 409 Mass. 16, 21 (1990).
9
The defendant contends that there was a possible
alternative interpretation of West's testimony: that in the
past the CI could have been only a controlled buyer who had not
provided information, which would be insufficient to establish
the CI's veracity. See Commonwealth v. Carrasquiello, 45 Mass.
App. Ct. 772, 775-776 (1998) (differentiating between
confidential informants as tipsters and controlled buyers for
purposes of veracity).5 This argument is insufficient to show
clear error in the motion judge's findings of fact.
First, on a motion to suppress, "[q]uestions of credibility
are the province of the motion judge who had the opportunity to
observe the witnesses." Commonwealth v. Tremblay, 460 Mass.
199, 205 (2011). Second, and more importantly, that the
Commonwealth or the motion judge might have asked what seems,
possibly only in hindsight, an obvious follow-up question to
confirm that the CI previously had been a tipster, rather than
merely a controlled buyer, does not allow us to reverse. Where
the judge's finding "is plausible in light of the record viewed
in its entirety, the [appellate court] may not reverse it even
though convinced that had it been sitting as the [finder] of
fact, it would have weighed the evidence differently. Where
5 Carrasquiello involved the question of probable cause for
a search warrant for entry into a home, whereas this case
involves the lesser standard of reasonable suspicion, and a
Terry stop on the street. See Terry v. Ohio, 392 U.S. 1 (1968).
10
there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous."
Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986), quoting
from Anderson v. Bessemer City, 470 U.S. 564, 673-574 (1985).
See Commonwealth v. Carr, 458 Mass. 295, 303 (2010);
Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 327 (2015).
Moreover, that the defense interpretation of West's
testimony may be possible does not make it probable or an
inference the motion judge must draw. A court considers the
application for a search warrant, or here whether there was
reasonable suspicion to conduct a stop, "in an ordinary,
commonsense manner without hypertechnical analysis." Perez-
Baez, 410 Mass. at 46, quoting from Commonwealth v. Melendez,
407 Mass. 53, 60 (1990) (Greaney, J., dissenting). See
Commonwealth v. Blake, 413 Mass. 823, 827 (1992) (search warrant
affidavits should be "read as a whole, not parsed, severed, and
subjected to hypercritical analysis"). "The standard of
reasonable suspicion[, which is lower than the standard of
probable cause,] does not require absolute certainty, but only
'sufficient probability,' 'the sort of "common-sense
conclusio[n] about human behavior" upon which "practical people"
-- including government officials -- are entitled to rely.'"
11
Commonwealth v. Buccella, 434 Mass. 473, 486 (2001), quoting
from New Jersey v. T.L.O., 469 U.S. 325, 346 (1985).6
b. The search of the vehicle. Similarly unavailing is the
defendant's claim that the search of the vehicle was
unreasonable. After the defendant was arrested, because his
vehicle was blocking the pumps at a gasoline station that was
open for business, the police moved the vehicle across the
street. Regardless of how the police described the ensuing
search, the incriminating objects found during the search would
have been discovered during the inevitable inventory search
conducted before police had the vehicle towed. See, e.g.,
Commonwealth v. Miller, 366 Mass. 387, 389 (1974) (finding
search constitutional even though "the officers did not
completely and correctly articulate their grounds," where "from
an objective standpoint probable cause existed"); Commonwealth
6 At oral argument, the defendant added that the Lowell
police could not rely on the track record of the CI established
with the Billerica police department to establish the CI's
reliability because they did not know the details of that track
record and were not working collaboratively on the investigation
with Billerica, citing Commonwealth v. Hawkins, 361 Mass. 384,
386-387 (1972) (collective knowledge doctrine did not apply
because officers who seized bonds during search for drugs within
the defendant's apartment were neither aware of theft of bonds
nor working in concert with officers who had knowledge of the
stolen bonds). Generally, we will not consider arguments not
raised in a party's brief. Mass.R.A.P. 16(a)(4), as amended,
367 Mass. 921 (1975). In any event, the argument has no merit.
Here, the Lowell police were informed that the CI was reliable
by the Billerica police, and "[a] law enforcement officer who
provides information is presumed credible." Commonwealth v.
Watson, 36 Mass. App. Ct. 252, 253 n.1 (1994).
12
v. Somers, 44 Mass. App. Ct. 920, 922-923 (1998) (police
discovery during automobile stop that defendant had no license
warranted order that car be towed); Commonwealth v. Bienvenu, 63
Mass. App. Ct. 632, 634-635 (2005) (after police stopped car for
safety infraction, subsequent tow and inventory search were
proper because "neither defendant could lawfully drive the
car").
2. Testimony of substitute chemist. The defendant argues
that testimony of a substitute chemist regarding the makeup of
the substance seized from the defendant's vehicle violated his
rights under the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights to confront and meet face to face the witnesses against
him, and that the Commonwealth did not sufficiently prove the
unavailability of the original chemist.7
Testimony by an expert where he or she "draws upon testing
conducted and results reached by other analysts[] who do not
testify . . . is permissible provided that the testifying
analyst 'reviewed the nontestifying analyst's work, . . .
conducted an independent evaluation of the data,' and 'then
expressed [his or] her own opinion, and did not merely act as a
conduit for the opinions of others.'" Commonwealth v. Jones,
7 At trial, the prosecutor represented that the original
chemist had left the laboratory and it was unknown whether she
was still working as a chemist for the Commonwealth.
13
472 Mass. 707, 715 (2015), quoting from Commonwealth v.
Greineder, 464 Mass. 580, 595 (2013). See Greineder, supra at
603 (no violation of Sixth Amendment or art. 12, even where
testifying analyst based her opinion on test results of
nontestifying analyst that were not admitted in evidence).
Unavailability is not a prerequisite to calling a substitute
chemist, provided the substitute chemist can be cross-examined
on how he or she reached his or her opinion. See id. at 594-
599.
The Commonwealth introduced the testimony of Paul Eyerly, a
chemist with the State police drug unit in Sudbury, who
testified as to his own independent opinion of the composition
of the substances in question based on tests performed and
results obtained by the original chemist. The defendant cross-
examined Eyerly regarding the basis on which he formed his
opinion, the testing procedures used, and their susceptibility
to human error. We discern no error or any violation of the
defendant's right to confront the witnesses against him under
the United States Constitution or the Massachusetts Declaration
of Rights.
Judgments affirmed.
RUBIN, J. (dissenting). I dissent from the court's holding
that the police had reasonable suspicion to stop the defendant.
Since all evidence discovered was the fruit of an
unconstitutional stop, the motion to suppress should have been
allowed.
In this case, a confidential informant described a
Dominican male who drove a white Buick Rendezvous CXL sport
utility vehicle of which the confidential informant recited the
license plate number. The confidential informant indicated that
on Friday nights the man could be found at the Gaelic Club. He
said that the man used it as a base of operation, traveling to
individuals' homes to sell drugs, and that he personally
observed the man make cocaine sales in the club's bathroom. The
confidential informant also told the police that the man usually
carried a firearm and that he believed the man did not have a
valid driver's license.
The police ran the license plate numbers and determined
that the car was registered to a Kennedy Ruiz-Mejia. They did
not ascertain whether Ruiz-Mejia had an active driver's license
or a license to carry a firearm. They then set up surveillance
outside the Gaelic Club on a Friday night and saw the car, and
when a Hispanic-appearing male, the defendant, left the club,
got in, and drove away, the police stopped the car. They had
2
not entered the club. They had not seen the defendant engage in
drug sales or any other suspicious activity.
Under Massachusetts law, we utilize the two-pronged
Aguilar-Spinelli test1 to determine whether a tip can provide the
reasonable suspicion that criminality is afoot necessary to
allow an investigative stop. The veracity prong requires the
Commonwealth to demonstrate "that the source of the information
was credible or the information reliable." Commonwealth v.
Depiero, 473 Mass. 450, 454 (2016). The central issue in this
case, as the court recognizes, is the veracity of the
confidential informant.
The court also recognizes, and I agree, that, as the motion
judge also correctly concluded, the Commonwealth could have
established the informant's veracity only by showing that the
informant had been a tipster in the past, and not merely a
controlled buyer. This is because, while it is well established
that an informant's history of providing tips leading to the
seizure of narcotics can establish the informant's veracity, see
Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991), as we have
held, one who merely participates in controlled buys is a person
of "unknown reliability." Commonwealth v. Carrasquiello, 45
Mass. App. Ct. 772, 776 (1998). See id. at 774-777
1 See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v.
United States, 393 U.S. 410 (1969).
3
(distinguishing the veracity of tipsters from that of controlled
buyers). This is because while buying drugs on behalf of the
police does provide them with information, it does not entail
providing them with any information the police have not
generated themselves. See ibid. See also Commonwealth v.
Desper, 419 Mass. 163, 168 (1994) (describing the process of
controlled buys).
And, while corroboration of certain details of a tip can
lead to a conclusion that the person who provided it was
truthful, confirmation only of the publicly-knowable and not
suspicious facts provided by the tipster that a person who
drives a certain car goes to a particular club on Friday
evenings is insufficient to demonstrate the veracity of the
tipster's claim that the person also engages in unlawful
conduct. See Commonwealth v. Lyons, 409 Mass. 16, 20-21 (1990)
("[T]he quantity and quality of the details corroborated by the
police were simply insufficient to establish any degree of
suspicion that could be deemed reasonable. The trooper was able
to verify only the description of the automobile, the direction
in which it was headed, and the race and gender of the occupants
before making the stop. . . . [T]he informant's reliability was
only slightly enhanced by this corroboration because the police
verified no predictive details that were not easily obtainable
by an uninformed bystander. . . . Significantly . . . these
4
defendants displayed no suspicious behavior that might have
heightened police concern. Anyone can telephone the police for
any reason").
In this case, the only evidence of the informant's past
involvement with the police came from Sergeant William West's
testimony. On direct examination, he testified that, in the
past, the informant had provided "information" that led to drug
arrests and the seizure of money and narcotics.
In cross-examination, though, the defendant's experienced
counsel asked Sergeant West, "And if [an individual utilized by
the Billerica police department to make controlled buys] had, in
fact, made a series of purchases on behalf of the Billerica
[p]olice [d]epartment, you could honestly say that that
individual had provided you with information that if it did lead
to arrest, to arrest and seizure, is that fair to say?" The
sergeant said, "Yes." Counsel then asked, "In the past was [the
informant in this case] able to make controlled buys for you
when you did use him as an informant for the Billerica [p]olice
[d]epartment?" Again, the sergeant said, "Yes."
The Commonwealth bears the burden of demonstrating the
lawfulness of the seizure and thus in this case, in order to
demonstrate the veracity of the tip, that the confidential
informant had previously acted as a tipster and not merely as a
controlled buyer. Defense counsel's careful cross-examination
5
made clear that, according to Sergeant West himself, even if one
had taken Sergeant West's direct testimony to mean that the
informant had provided tips in the past, that was not
necessarily its meaning. While West's testimony left open the
possibility that the confidential informant might have been a
tipster as well as a controlled buyer, the officer's direct
testimony did not mean that the informant was such a tipster.
The Commonwealth could have clarified the matter on
redirect by asking Sergeant West whether the informant had ever
provided tips. It declined to do so. Perhaps this was because
it knew that the confidential informant in fact was not a
tipster; perhaps it was not. But in either event, the
Commonwealth, which, it bears repeating, has the burden here,
left a record in which there was insufficient evidence to
support the finding, necessary to the motion judge's conclusion
that the search was lawful, that the confidential informant had
previously been a tipster, not only a controlled buyer.2
The Commonwealth recognized this below, and did not even
argue before the judge that the evidence supported a finding
that the confidential informant was a tipster. Defense counsel
2 The court suggests in a footnote that the facts that the
informant called Sergeant West with information regarding the
defendant's drug sales, and that he had noted the description of
the car, suggests "at least a likelihood that this was not his
first tip." But calling a police officer to tell him someone is
dealing drugs at a particular place and describing his car
hardly indicates that one has done so before.
6
argued: "At no time did the sergeant ever say that this
informant was a tipster. . . . I didn't ask him. My brother
didn't ask him. . . . [A]ll we know about this person, this
informant" is that "[h]e has performed controlled buys
successfully . . . . We don't know whether he was ever a
tipster. [West] was never asked."
The Commonwealth did not disagree, arguing only (and
incorrectly) that any information leading to "an arrest and
seizure of contraband substances was by itself sufficient to
establish reliability," and that, coupled with the details that
were corroborated, it was sufficient.3
The court majority addresses the state of the record with
respect to the confidential informant by saying first that we
must defer to the motion judge's assessment of Sergeant West's
credibility. Of course we must. But the issue is not whether
Sergeant West is credible, nor did the judge say it was.4 The
3 Even here, on appeal, the Commonwealth does not explain
what supported the judge's finding, asserting without
elaboration only that the "weight and credibility of testimony
are functions of [the] motion judge, and factual findings will
stand absent clear error."
4 The support for the judge's finding that the informant had
provided tips in the past was limited to quoting Sergeant West's
testimony that the informant had more than once provided
"information" leading to arrests and seizures of drugs and
money, and drawing the following inadequately-supported
inference therefrom: "I understand this testimony to mean that
the CI supplied substantive information as well as helping with
controlled buys, which he also did, and I so find."
7
issue is what Sergeant West said. I assume he was perfectly
credible. His testimony, though, cannot support a finding that
the confidential informant provided tips in the past. It is
silent on that question.
The court majority then suggests that the "more
important[]" reason we must affirm is that we must defer to the
fact finder's choice between "two permissible views of the
evidence." Ante at . That statement of black letter law is
of course true as well, but it is equally irrelevant.
To illustrate the point: If there were testimony that an
event happened on a weekend, a judge could not infer solely on
that basis that the day on which it happened was a Saturday
rather than a Sunday. That would not be a case in which one
could draw one of two permissible inferences from the evidence
in the record (i.e., that it happened on a Saturday or that it
happened on a Sunday). It would be one in which there was
insufficient evidence in the record to support a conclusion on
the matter in either direction. The event might have happened
on a Saturday. Or it might have happened on a Sunday. But
there is no basis upon which a fact finder could, without more,
determine which one. And if it was one party's burden to prove
the event happened on a Saturday, that party would have failed
to meet its burden.
8
That is precisely this case. Whatever one might have
thought initially about Sergeant West's direct testimony, given
his own clarification on cross-examination, it meant only that
the confidential informant might have been a tipster (and a
controlled buyer as well), or that he might have been only a
controlled buyer. But there was no evidence in the record to
support the judge's conclusion that the informant was the former
rather than the latter. Choosing between two different possible
factual scenarios, either of which might have happened, where
there is no evidence in the record about which one actually did
occur, is far different than choosing between two permissible
views of the evidence in the record, and there would be little
left of the rule of law if we eliminated that distinction.
Because the Commonwealth did not provide sufficient
evidence to support a positive finding about the veracity of the
confidential informant, it failed to demonstrate the reasonable
suspicion necessary for the initial stop of the defendant's
vehicle. While I have no quarrel with the rest of the
majority's analysis, because all the evidence seized was fruit
of that unlawful stop, it should have been suppressed. With
respect, I therefore dissent.