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Commonwealth v. Depiero

Appeals Court of Massachusetts, Middlesex

February 19, 2015

John C . Depiero

Argued: January 10, 2014

Complaint received and sworn to in the Cambridge Division of the District Court Department on August 11, 2011.

A pretrial motion to suppress evidence was heard by Antoinette E. McLean Leoney, J., and the case was heard by Joseph W. Jennings, III, J.

Judgment affirmed.

Jane D. Prince ( Randy S. Chapman with her) for the defendant.

Radu Brestyan, Assistant District Attorney, for the Commonwealth.

Present: Kantrowitz, Vuono, & Sullivan, JJ.


Vuono, J.

[25 N.E.3d 897] Following a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (second offense). On appeal, he principally contends that the motion judge erred in denying his motion to suppress evidence obtained during what he claims was an unlawful investi-

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gatory stop of his automobile.[1] The stop was prompted by an anonymous telephone call concerning a " drunk" driver. We conclude that the motion to suppress was properly denied and we affirm the judgment.[2]


At approximately 2:00 a.m. on August 11, 2011, an unidentified man made [25 N.E.3d 898] a 911 telephone call which was received by a State police emergency operator in Framingham. After informing the caller that the 911 line is recorded, the operator asked the caller, " [W]hat is your emergency?" The caller replied, " Just a call, you got a drunk driver on Memorial Drive near Harvard

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Square and I've got his license number, but he's swerving all over the road." The operator immediately transferred the call to the State police barracks in Brighton. The caller stayed on the line and then spoke to a dispatcher who identified himself as Trooper Usom. The motion judge found that the caller provided the color, make, and license plate number of the vehicle in question to Trooper Usom.[4] Trooper Usom then initiated the following broadcast: " H5, H5 patrols, one call erratic operation Memorial Drive westbound passing the Weeks Footbridge on MA PC 7785AN ... [t]hat vehicle comes out of Belmont, the owner is on probation for drunk driving." In a subsequent broadcast, Trooper Usom provided the address for the registered owner of the motor vehicle.[5]

State police Trooper John Dwyer was on patrol on Route 2 east of Arlington when he heard Trooper Usom's broadcast. He responded by driving to Belmont and arrived in the vicinity of the defendant's home within five minutes. He saw the vehicle described by the broadcast pass him and pull into the driveway at 207 Cross Street and he observed that it was being driven in a normal manner. After the defendant pulled into the driveway, Trooper Dwyer parked his cruiser about five feet behind the defendant's vehicle and activated the cruiser's emergency lights.[6] The defendant stepped out of his vehicle and nearly fell to the ground. When Trooper Dwyer approached the defendant he noticed that the defendant's hair was " wild and unkept [ sic ]" and detected an odor of alcohol. Upon request, the defendant produced his license and registration without difficulty. In response to Trooper Dwyer's questions, the defendant said that he was coming from Cambridge and had driven on Soldier's Field Road and not Memorial Drive. He also admitted that he had consumed

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one to two drinks. The defendant agreed to perform field sobriety tests, which he failed. Trooper Dwyer then concluded that the defendant had been operating his motor vehicle while under the influence of alcohol, and arrested him.[7]

[25 N.E.3d 899] In denying the defendant's motion to suppress, the judge concluded that the 911 call was placed by " an ordinary citizen -- not an informant -- who had witnessed a motor vehicle infraction, namely, a motor vehicle driving erratically on the roadway." Thus, even though the caller was not identified -- or identifiable -- the judge implicitly reasoned that the tip bore adequate indicia of reliability, because the caller's report was based on his personal knowledge, and the information he provided could be accorded more weight than information from an (anonymous) informant as a result of his status as an ordinary citizen.[8] The judge also found that the information provided by the caller had been corroborated by the police. She then concluded that the stop was lawful because it was supported by reasonable suspicion.


To justify a motor vehicle stop under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the Commonwealth must demonstrate that the police had reasonable suspicion " based on specific, articulable facts and reasonable inferences therefrom, that [the operator] of the ... motor vehicle had committed, was committing, or was about to commit a crime." [10] Commonwealth v. Alvarado, 423 Mass. 266, 268, 667 N.E.2d 856 (1996). Information from an anonymous 911 call may warrant reasonable suspicion if it is shown to be reliable.[11] In [25 N.E.3d 900] Massachusetts we apply the Aguilar - Spinelli test to determine whether an anonymous tip is reliable.

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See Commonwealth v. Costa, 448 Mass. 510, 515 n.9, 862 N.E.2d 371 (2007). " To establish the reliability of the information under art. 14 ... the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the under-

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lying circumstances demonstrating that the source of the information was credible or the information reliable (the veracity test)." Commonwealth v. Anderson, 461 Mass. 616, 622, 963 N.E.2d 704 (2012), quoting from Commonwealth v. Mubdi, 456 Mass. 385, 395-396, 923 N.E.2d 1004 (2010) (other citation omitted). Where the standard is reasonable suspicion, as opposed to probable cause, " a less rigorous showing in each of these areas is permissible." Ibid., quoting from Commonwealth v. Mubdi, supra at 396.

As an initial matter, there is no question that the dispatch described the motor vehicle with sufficient particularity such that Trooper Dwyer could be certain that the vehicle he stopped was the same one identified by the caller. The dispatch identified the vehicle's color, make, and license plate number, and the address of the registered owner. See Commonwealth v. Anderson, supra at 621. We also conclude that the caller's report was sufficient to support the inference that he had witnessed an incident of reckless driving and, therefore, the " basis of knowledge" test was satisfied.[12] See Commonwealth v. Lubiejewski, 49 Mass.App.Ct. 212, 214, 729 N.E.2d 288 (2000) (basis of the caller's knowledge properly was inferred from the report itself, which indicated firsthand observation of erratic operation). See also Commonwealth v. Costa, supra at 518 (basis of knowledge test satisfied where a caller claiming to be in close proximity to a suspect carrying a concealed handgun provided the suspect's location and described the suspect's clothing in full); Commonwealth v. Anderson, supra at 622 (basis of knowledge test satisfied where a caller reported personally witnessing " two black men get into a silver or gold Toyota Camry bearing a registration plate 22CO77" ). Contrast Commonwealth v. Gomes, 75 Mass.App.Ct. 791, 792, 795, 917 N.E.2d 231 (2009) (caller's report of a man holding a gun in air not credited, in part because the caller failed to report own location); Commonwealth v. Mubdi, supra at 396 (caller's basis of [25 N.E.3d 901] knowledge questioned where Commonwealth failed to introduce a 911 call showing that the information was " derived from personal observation rather than hearsay or rumor" ).

We now turn to the veracity test.

The question whether the police had an adequate basis for concluding the caller was reliable is a close one. Although the initial 911 call was recorded, the Commonwealth presented no evidence to establish that the caller

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was identifiable. There was no evidence that the telephone number used by the caller could be identified or that the caller otherwise knew the number could be traced. As the defendant points out, the absence of evidence demonstrating that the caller's anonymity was at risk has resulted in a finding of unreliability in a number of cases. See Commonwealth v. Mubdi, supra at 397 (Commonwealth failed to establish an unidentified caller's reliability where there was " no reason to believe the caller needed to fear that he or she would be subject to a charge of filing a false report or any comparable consequence of providing false information to law enforcement" ); Commonwealth v. Gomes, supra at 794 (investigatory stop based on a 911 emergency telephone call made by an " unidentified and unidentifiable" caller was unlawful).[13] Contrast Commonwealth v. Costa, 448 Mass. at 512-513 (reliability of an anonymous telephone call established where the Commonwealth introduced evidence that the 911 emergency operator had identified the caller's telephone number and informed the caller that her cellular telephone number had been identified and that the call was being recorded).

However, the absence of evidence that the caller has placed his anonymity at risk does not preclude the Commonwealth from establishing the caller's reliability. " Where the caller is anonymous, there are at least two ways to establish the caller's reliability. The first is through independent corroboration by police observation or investigation of the details of the information provided by the caller." Commonwealth v. Anderson, 461 Mass. at 623. The " second way to establish the caller's reliability is by demonstrating that the caller had just witnessed a startling or shocking event, that the caller described the event, and that the description of the event was made so quickly in reaction to the event as reasonably to negate the possibility that the caller was falsifying the description or was carrying out a plan falsely to accuse another." Id. at 624.

Here, although Trooper Dwyer's observations of the defendant's vehicle did corroborate some of the information provided by the 911 caller, he did not observe any suspicious behavior. However, even without sufficient corroboration, we conclude that the

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Commonwealth met its burden because it can be inferred that the 911 call was made contemporaneously with the caller's observation of apparent criminal activity, namely driving while intoxicated, and therefore, the caller was under the stress or excitement of a " startling or shocking event." Commonwealth v. Depina, 456 Mass. 238, 244, 922 N.E.2d 778 (2010).

The circumstances of this case are similar to those addressed by the Supreme [25 N.E.3d 902] Judicial Court in Commonwealth v. Anderson, supra. In that case, the court concluded that an anonymous caller who reported observing two men who appeared to have just committed a robbery make their getaway " passed the less rigorous veracity test needed for reasonable suspicion where there was [some] independent corroboration of the information furnished by the caller and where the call was made immediately after the startling event." Id. at 625. The court stated that " [w]hile the evidence does not reflect whether the caller knew of the robbery or saw the men wearing masks, we can infer the caller recognized that they appeared to have just committed a crime and were making their getaway; otherwise it would have made no sense to contact the police and provide the registration plate number of a departing vehicle." Id. at 623. The court analogized the call to an excited utterance and concluded that the spontaneous and startled nature of the call heightened its reliability. Id. at 625.

The same analysis applies here.

The danger of driving while intoxicated presents a grave danger to the public. See generally Commonwealth v. Davis, 63 Mass.App.Ct. 88, 91, 823 N.E.2d 411 (2005). The threat of immediate serious physical injury from a drunk driver is such that the call at issue was " spontaneous to a degree which reasonably negated premeditation or possible fabrication." Commonwealth v. Anderson, supra at 624, quoting from Commonwealth v. Depina, 456 Mass. at 244. Here, as in Anderson, the evidence supports the inference that the caller utilized the emergency number " 911" for a valid reason, to report to the police what the caller understood to be a " drunk" driver operating a vehicle dangerously on a major thoroughfare, rather than for any malicious purpose that would lessen its reliability. Commonwealth v. Anderson, supra at 623 n.9. See Commonwealth v. Depina, supra at 245 (anonymous caller passed the veracity test where she reported a shooting in her backyard and witnessed a suspect fleeing, because the circumstances suggested that she did not intend to mislead the police). Furthermore, as the court also noted in Anderson, " [i]f a person wants to harass an enemy by providing false information

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to the police that would trigger an investigative stop, the person is unlikely to wait until the caller has just seen someone flee a crime scene." 461 Mass. at 625. We think it equally unlikely that a person bent on mischief or harassment would wait until he or she observed an enemy drive a car, and then accuse him or her of dangerous driving.

The fact that the caller's report bore sufficient indicia of reliability does not end our analysis. We must still determine whether the reliable tip created a reasonable suspicion that the crime of operating a motor vehicle while under the influence of alcohol had been or was being committed.[14] While there was no specific information provided by the caller regarding alcohol consumption, we can appropriately recognize that " swerving all over the road" is a significant indicator of drunk driving.[15] [25 N.E.3d 903] Here, Trooper Dwyer could reasonably suspect that the behavior reported by the caller was consistent with driving under the influence of alcohol and, because Trooper Dwyer knew that the defendant was on probation for drunk driving, he had the requisite reasonable suspicion to make an investigatory stop, even though he had not personally observed any suspicious behavior. See Commonwealth v. Gomes, 453 Mass. 506, 511-512, 903 N.E.2d 567 (2009) (officer's knowledge that the defendant has a history of similar crimes contributed to a reasonable suspicion that the defendant had, was in the process of, or was about to engage in that criminal behavior). See also Cypher, Criminal Practice and Procedure § 4.10, at 190 (4th ed. 2014) (" [T]he fact that a person has been previously convicted of a crime does not relegate the individual to the status of a second class citizen, yet the knowledge of the defendant's criminal background can be used as an additional factor in determining if there should be a brief threshold inquiry" ). In sum, given the reliable

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report of a significant danger coupled with the knowledge of the defendant's criminal history, " the police would have been remiss had they not conducted an investigatory stop of this vehicle." Commonwealth v. Anderson, 461 Mass. at 625.

Judgment affirmed.

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