Commonwealth v. Heriberto Hernandez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-447

COMMONWEALTH

vs.

HERIBERTO HERNANDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Heriberto Hernandez, was indicted on one

count of trafficking fentanyl, in violation of G. L. c. 94C,

§ 32E (c 1/2), after police found the drugs during a vehicle

search subsequent to his arrest for operating with a suspended

driver's license, in violation of G. L. c. 90, § 23. The

defendant filed a motion to suppress, which a Superior Court

judge denied prior to trial. Following a trial, a Superior

Court jury convicted the defendant. On appeal, the defendant

challenges the denial of the motion to suppress. We affirm.

Background. We summarize the facts found by the motion

judge and from undisputed evidence from the record that has been

implicitly credited by the motion judge. Commonwealth v.
Tremblay, 480 Mass. 645, 654-655 (2018). In early February

2020, a confidential informant (CI) told State police Trooper

Jamie Vitale that a gray Chevrolet Trailblazer was involved in

transporting heroin and fentanyl from New York to central

Massachusetts and provided the license plate number of the

vehicle. Working with other state and federal law enforcement

officers as part of a narcotics task force, Trooper Vitale

conducted surveillance of the vehicle. The officers obtained a

photograph from a license plate reader showing the vehicle

parked on a street in New York. On or about February 15, 2020,

the CI made a controlled purchase of fentanyl from the driver of

the Trailblazer, later identified as the defendant. After task

force officers surveilled that purchase, they also watched the

defendant drive the Trailblazer to other locations and appear to

engage in other drug transactions. The officers stopped the

vehicle and identified the defendant by his New York driver's

license. Although the police learned that the defendant's right

to operate a vehicle in Massachusetts had been suspended, they

allowed him to leave.

On the morning of February 25, 2020, a confidential source1

told Trooper Vitale that the Trailblazer would be traveling from

1 The judge found that it was unclear whether the source was
the same CI who initially provided information to the trooper
and who had participated in the controlled purchase.

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New York to central Massachusetts that morning with narcotics.

Trooper Vitale set up surveillance on Route 84 in Connecticut,

about fifteen miles from the Massachusetts border. Around 10:20

A.M., he saw the Trailblazer traveling toward Massachusetts and

contacted State police Trooper Michael Barrera. He informed

Trooper Barrera that the defendant was suspected of transporting

fentanyl in the Trailblazer and provided the defendant's name

and date of birth, a photograph of the defendant, and a

photograph of the license plate of the vehicle. He also

informed Trooper Barrera that the defendant's Massachusetts

driver's license was suspended.

Trooper Barrera confirmed through the Criminal Justice

Information Services (CJIS) database that the defendant's

license was suspended. He saw the Trailblazer and pulled the

vehicle over. When Trooper Barrera asked the defendant where he

was going, the defendant replied that he was coming from

Connecticut and going to Worcester to visit a friend. Trooper

Barrera noticed that the defendant was shaking and sweating.

The defendant provided his New York driver's license, which

listed a different address from the one on file with the

Massachusetts Registry of Motor Vehicles. After the defendant's

arrest for operating a motor vehicle with a suspended license,

the police searched the vehicle and found a box containing a

white powder which the defendant acknowledged was fentanyl.

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Discussion. 1. Reasonable suspicion to stop. "In

reviewing a ruling on a motion to suppress evidence, we accept

the judge's subsidiary findings of fact absent clear error

. . . . We review independently the application of

constitutional principles to the facts found" (citation

omitted). Commonwealth v. Cordero, 477 Mass. 237, 241 (2017).

To conduct a valid warrantless investigatory stop, the

police must have "reason to suspect that a person has committed,

is committing, or is about to commit a crime." Commonwealth v.

Silva, 366 Mass. 402, 405 (1974). "Reasonable suspicion must be

based on specific and articulable facts and reasonable

inferences therefrom, in light of the officer's experience"

(quotation and citation omitted). Commonwealth v. Robinson-Van

Rader, 492 Mass. 1, 8 (2023). Here, where the police based

their reasonable suspicion to stop the defendant on an

informant's tip rather than their own observations, the

Commonwealth must demonstrate both underlying circumstances

demonstrating the informant's basis of knowledge and some

underlying circumstances from which police could have concluded

that the information was reliable, known as the "Aguilar-

Spinelli" factors. Commonwealth v. Va Meng Joe, 425 Mass. 99,

102-103 (1997). See Spinelli v. United States, 393 U.S. 410

(1969); Aguilar v. Texas, 378 U.S. 108 (1964). "Independent

police corroboration may make up for deficiencies in one or both

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of these factors" (citation omitted). Commonwealth v. Depiero,

473 Mass. 450, 454 (2016).

The defendant argues that there is no evidence of the

confidential source's reliability and basis of knowledge and

that the judge erred in finding that the information presented

by the troopers was sufficient independent corroboration of the

tip. These arguments lack merit. The defendant is correct that

there was no evidence in the record about the identity of the

tipster from February 25 or whether the source was the same

person who participated in the controlled purchase two weeks

earlier. Indeed, the judge found that it was unclear whether

the police knew the identity of the person providing the tip.2

However, even assuming the tip came from an anonymous informant,

the police had sufficient reasonable suspicion to justify the

stop of the defendant. At the time of the stop, police knew

that the defendant had sold fentanyl to a confidential informant

and engaged in other drug transactions approximately ten days

before. They knew that he resided in New York, that he drove a

Trailblazer while involved in drug transactions, and that the

Trailblazer was in New York in early February. The police

received a tip that the Trailblazer would potentially be

The judge did not review the tip under the basis of
2

knowledge or reliability tests and concluded that police
sufficiently corroborated the information provided by the
informant.

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traveling from New York to central Massachusetts transporting

drugs. When the police tracked the defendant driving the

Trailblazer on the highway from Connecticut into Massachusetts

on February 25, the police corroboration of the tip provided

sufficient reasonable suspicion to justify the stop. See

Commonwealth v. Anding, 104 Mass. App. Ct. 770, 773 (2024)

(corroboration of "critical component" of tip provides "strong

indicator of reliability" [citation omitted]).

We also find unpersuasive the defendant's contention that

there was no evidence to conclude that the defendant was

involved in the interstate transportation of drugs based on the

hand-to-hand transactions. As we have just discussed, there was

evidence beyond the controlled purchase that corroborated

details in the tip concerning the defendant's movement between

New York and central Massachusetts in the same vehicle he used

during the controlled purchase.

The defendant also argues that the judge erred in

determining that the police knew that the defendant kept the

vehicle with him in New York or that he stayed in New York

during the time of the police investigation. We disagree. The

judge credited Trooper Vitale's testimony that a photograph from

a license plate reader showed the Trailblazer parked on a street

in New York. See Commonwealth v. Hoose, 467 Mass. 395, 399

(2014) ("[W]e defer to the judge's determination of the weight

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and credibility to be given to oral testimony presented at a

motion hearing"). Considering also that the police knew the

defendant had an active New York driver's license listing a New

York address and that the defendant was the sole occupant of the

vehicle during the controlled purchase, the judge could

reasonably infer that the police knew the defendant had stayed

in New York with the Trailblazer.

2. Probable cause to arrest. The defendant contends that

Trooper Barrera lacked probable cause to arrest him on the

charge of operating with a suspended license based on the

information he had at the time of the stop because the CJIS

report on Barrera's portable computer was "bare" and not

reliable. We are not persuaded. Trooper Barrera checked the

CJIS database and discovered that the defendant's driver's

license had been suspended. Trooper Barrera properly relied

upon this information, which gave him probable cause to believe

that the defendant was operating a motor vehicle on a public way

after his license had been suspended, in violation of G. L.

c. 90, § 23. See Commonwealth v. Ramos, 88 Mass. App. Ct. 68,

71 (2015) (RMV records that formed basis of reasonable suspicion

have sufficient indicia of reliability on which to predicate

traffic stop).

The defendant's argument that the CJIS report contained

insufficient identifying information such as his social security

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number, middle name, or height lacks merit. The defendant's

name and date of birth on his New York driver's license matched

the name and date of birth in the CJIS result. Moreover, the

defendant explained to Trooper Barrera that his license was

suspended because he received a citation while working for a

taxi company, and the company was supposed to pay the ticket.

On the morning of the stop, Trooper Vitale also sent a

surveillance image of the defendant to Trooper Barrera. The

evidence in the record amply supports the judge's finding that

Trooper Barrera had sufficient probable cause to arrest the

defendant for operating a motor vehicle with a suspended

license.

3. Pretextual stop. For the first time on appeal, the

defendant argues that the traffic stop was an impermissible

pretext to conduct an investigatory search of the vehicle.

Because the defendant raises this argument for the first time on

appeal, we review for substantial risk of miscarriage of

justice. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795

(2019). "[I]f the record is incomplete or otherwise not

adequate to permit review on the merits, the defendant . . . is

left to pursue a remedy, if any, in the trial court and

appellate relief is denied." Id. "[I]f the record permits

review on the merits and . . . there is error, we review the

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record as a whole to determine whether the error created a

substantial risk of a miscarriage of justice." Id.

Here, our review of the record leads us to conclude that it

is inadequate to permit us to reach the merits. In his motion

to suppress, the defendant did not raise the argument that the

stop was pretextual, and the judge did not address the issue.

See Commonwealth v. Silva, 440 Mass. 772, 782 (2004), citing

Commonwealth v. Rivera, 429 Mass. 620, 623 (1999) (waiver

doctrine precludes defendant who did not properly alert motion

judge to issue from raising it on appeal). The defendant,

however, may seek relief by raising an ineffective assistance

claim through a motion for a new trial. See Commonwealth v.

Piard, 105 Mass. App. Ct. 428, 438-439 (2025).

Judgment affirmed.

By the Court (Walsh, Toone &
Tan, JJ.3),

Clerk

Entered: April 15, 2026.

3 The panelists are listed in order of seniority.

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