Commonwealth v. Abdul-Alim

91 Mass.App.Ct. 165

72 N.E.3d 1059

COMMONWEALTH

v.Ayyub N. ABDUL-ALIM.

No. 15-P-1219

Appeals Court of Massachusetts, Hampden..

Argued December 13, 2016.

Decided March 9, 2017.

James B. Krasnoo , Andover, for the defendant.

Alyson Yorlano , Assistant District Attorney, for the Commonwealth.

Present: Milkey, Massing, & Sacks, JJ.

MASSING, J.

The defendant, Ayyub Adbul-Alim, appeals from his convictions of unlawful possession of a firearm and unlawful possession of ammunition, aggravated by previous convictions of a serious drug offense and a firearms violation. See G. L. c. 269, §§ 10(a ), 10(d ), 10(h ), 10G(a ). He claims, as he did at trial, that his prosecution was the result of a joint Federal and State effort designed to coerce him to provide information about the activities of potential Islamic terrorists in the Springfield area. In light of this claim, he argues specifically that (1) his motion to suppress the firearm and ammunition should have been allowed, (2) the trial judge wrongly denied his request for a continuance of the trial, (3) a mistrial ought to have been declared after the jury reported a deadlock, and (4) the trial judge thwarted appellate counsel's efforts to obtain record documents. We affirm.

1. Motion to suppress. a. Background. The motion judge found the following facts—which the record supports and the defendant does not challenge as clearly erroneous—regarding the search of the defendant's person.

The defendant had been married to Siham Nafi Stewart for about two years. They lived with their young child in a second-floor apartment on State Street in Springfield. During the investigation of a murder in the apartment building, Stewart and the defendant were identified as witnesses; Stewart met with a Springfield police lieutenant. Days later, after hearing gunfire in the apartment building, she called 911 and spoke with the Springfield police officers who responded to her apartment.

"[C]oncerned for the well-being of her child and herself if they continued to live with the defendant in that apartment," Stewart went to the Springfield police department "to disclose that her husband, the defendant, was involved in drug dealing and possessed a firearm." After speaking with a Springfield police sergeant, she was introduced to another Springfield officer, Ronald Sheehan, a twenty-five year veteran who was also a member of the Federal Bureau of Investigation (FBI) joint counterterrorism task force (task force), a joint effort of Federal, State, and local law enforcement personnel. Stewart told Sheehan that the defendant's supplier was a white male with tattoos on his hand who drove a white Jeep Cherokee. She showed Sheehan a photograph of the defendant's handgun. Sheehan learned that the defendant had prior convictions for drug trafficking and unlawful possession of a firearm, disqualifying him from lawfully possessing a gun in Massachusetts. Stewart and Sheehan had a number of in-person and telephone contacts over the next two to three weeks leading up to the defendant's arrest.

One evening in December, 2011, Stewart telephoned Sheehan to tell him that the defendant was about to meet his supplier at the gasoline station next door to the apartment building. Sheehan and two other Springfield officers, partners William Berrios and Anthony Sowers, went to the location. Berrios and Sowers saw a white Jeep Cherokee in the gasoline station parking lot and parked their marked cruiser behind it.¹

Sheehan then received a second call from Stewart. She told him that the defendant had just left the apartment, was wearing a red vest, and had his gun with him. Sheehan observed the defendant leave the building, wearing a red vest or jacket, and walk toward the gasoline station. He warned Berrios and Sowers that the defendant was approaching and was armed. Berrios and Sowers seized the defendant, each grabbing an arm, and Sowers conducted a patfrisk. Finding nothing, he handcuffed the defendant and placed him in the back of the cruiser.

Stewart, who observed the patfrisk from the window of her apartment and did not see the officers remove the gun, telephoned Sheehan again and informed him that the defendant had placed the gun in his underwear. Berrios and Sowers removed the defendant from the cruiser, and Berrios conducted a more thorough patfrisk. He felt a handgun in the defendant's groin area. The officers returned the defendant to the cruiser, unzipped his pants, and removed the gun.

b. Discussion. The defendant challenges his seizure and search on two grounds. First, he contends that Stewart's tip was unreliable. We disagree. This case does not involve an unidentified informant—Stewart was known to the police as the defendant's wife. She had met with Sheehan many times and provided details about the defendant's drug activity and his supplier; she had even shown Sheehan a picture of the defendant's handgun. "In these circumstances, [Stewart's] basis of knowledge was established, and [her] report of [the defendant leaving the apartment with] a firearm ‘could be regarded as reliable without any prior demonstration of [her] reliability.’ "

Commonwealth v. Edwards, 476 Mass. 341, 346, 67 N.E.3d 1224 (2017), quoting from Commonwealth v. Gouse, 461 Mass. 787, 793, 965 N.E.2d 774 (2012). See Commonwealth v. Atchue, 393 Mass. 343, 347, 471 N.E.2d 91 (1984), quoting from United States v. Wilson, 479 F.2d 936, 940 (7th Cir. 1973) (information provided by known citizens "carries with it indicia of reliability"); Commonwealth v. Bakoian, 412 Mass. 295, 301, 588 N.E.2d 667 (1992) (informant revealed identity at time of tip, was known by police, and gave precise information); Commonwealth v. Peterson, 61 Mass.App.Ct. 632, 635, 813 N.E.2d 870 (2004) (statements voluntarily made to police by those with intimate knowledge of defendant).²

Second, the defendant contends that his detention was no longer justified after the initial patfrisk did not reveal a gun. See Commonwealth v. Douglas, 472 Mass. 439, 445, 35 N.E.3d 349 (2015) ("any reasonable suspicion that either [of defendant's passengers] had a weapon on his person was dissipated after the patfrisks revealed no weapons"); Commonwealth v. Amado, 474 Mass. 147, 153, 48 N.E.3d 414 (2016) (where patfrisk, justified by officer safety concerns, revealed no weapon, "the safety exigency justifying a search of the defendant's person ended, as there was no remaining suspicion that the defendant possessed a weapon").

We need not address the motion judge's conclusion that the continued detention of the defendant was proportional to the level of suspicion the officers possessed, because we agree with the judge's alternate rationale: that the police had probable cause to arrest the defendant. See Commonwealth v. Santaliz, 413 Mass. 238, 240, 596 N.E.2d 337 (1992) (arrest and attendant search without warrant must be based on probable cause); Commonwealth v. Claiborne, 423 Mass. 275, 279, 667 N.E.2d 873 (1996) (police officers may arrest without a warrant or probable cause that suspect has committed a felony). "Probable cause to arrest exists where the facts and circumstances in the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed." Commonwealth v. Williams, 422 Mass. 111, 119 n.11, 661 N.E.2d 617 (1996).

Here, based on reliable, reasonably trustworthy information obtained from the defendant's wife, further investigation of the defendant's criminal record, and police corroboration of the information Stewart provided contemporaneously as the events unfolded, the officers had probable cause to arrest the defendant for illegal possession of a firearm—even before Stewart's third phone call, telling them exactly where the gun was hidden. Having an adequate basis on which to arrest, the police had a right to conduct a search, not just a patfrisk. See Commonwealth v. Ilges, 64 Mass.App.Ct. 503, 515-516, 834 N.E.2d 276 (2005). To the extent the search of the defendant could be characterized as a strip search, it was justified by probable cause. See Amado, supra at 154, 48 N.E.3d 414 (probable cause required for strip search).

2. Withholding of exculpatory evidence; denial of motion for continuance. The defense at trial was that the Springfield police framed the defendant on firearm charges to create some leverage so that he would agree to become an informant for the FBI task force regarding activities at the Islamic mosque and community center that the defendant frequented. The defendant testified that the police planted a gun on him, that he was approached by an FBI agent after the arrest, and that he had previously been approached by the same agent at his mosque.

To support this defense, the defendant called Sheehan as a witness. Sheehan testified that after arresting the defendant, he contacted an FBI special agent, his supervisor at the task force, who came to the police station to speak with the defendant. Sheehan and the FBI agent asked the defendant to become an informant, but he was not interested. Sheehan further testified that the task force made total payments of $11,495 to Stewart over several months, beginning five months after the defendant's arrest. However, Sheehan denied that the payments were for information regarding the defendant.³

The defendant asserts that the Commonwealth failed to produce in discovery exculpatory materials in the possession of the FBI or, in the alternative, that the trial judge should have allowed his motion for a continuance to allow him to continue his pursuit of FBI records through a Freedom of Information Act (FOIA) request. Indeed, if the prosecution of the defendant was the result of a joint State and Federal effort, he would be entitled to exculpatory evidence in the possession of both State and Federal law enforcement personnel involved in the investigation. See Commonwealth v....