Commonwealth v. Pinto , 476 Mass. 361 ( 2017 )

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SJC-12134
COMMONWEALTH vs. BRUNO PINTO.
Suffolk. November 9, 2016. - January 23, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Firearms. Constitutional Law, Search and seizure, Investigatory
stop, Reasonable suspicion. Search and Seizure, Motor
vehicle, Reasonable suspicion, Threshold police inquiry.
Threshold Police Inquiry.
Complaints received and sworn to in the Central Division of
the Boston Municipal Court Department on April 25, 2013, and
June 6, 2013.
A pretrial motion to suppress evidence was heard by Eleanor
C. Sinnott, J., and the cases were tried before her.
The Supreme Judicial Court granted an application for
direct appellate review.
Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
Amanda Teo, Assistant District Attorney, for the
Commonwealth.
LOWY, J. A jury convicted the defendant, Bruno Pinto, on
two counts of unlawful possession of a loaded firearm, G. L.
2
c. 269, § 10 (n), and one count of possession of a firearm
without a license, G. L. c. 269, § 10 (a).1,2
The defendant's sole argument on appeal is that the search
of his vehicle was illegal because the Commonwealth failed to
demonstrate the police had reasonable suspicion to conduct an
investigatory stop. We agree, and therefore, we reverse the
convictions and the order denying the motion to suppress the
fruits of that search.
1. Background. We summarize the facts found by the motion
judge, supplemented by uncontested testimony from the
suppression hearing. Commonwealth v. Johnson, 461 Mass. 44, 45-
46 (2011).
a. The stop. While on uniformed patrol in the South
Boston section of Boston, Officers Kluziak and Fonseca of the
Boston police department received a radio broadcast informing
them to be on the lookout for a white Infiniti motor vehicle
1
He was also convicted of possession of ammunition without
a firearms identification (FID) card, G. L. c. 269, § 10 (h).
That conviction was set aside at the request of the
Commonwealth.
2
The defendant was also charged with assault and battery,
G. L. c. 265, § 13A; and malicious destruction of property
valued over $250, G. L. c. 266, § 127. The Commonwealth nol
prossed these charges. The defendant also received a civil
citation for failing to have his motor vehicle inspected, G. L.
c. 90, §§ 7A, 7V; he was found not responsible.
3
with Massachusetts license plate number "FF720."3 According to
the broadcast, someone connected with the vehicle was wanted for
an alleged domestic assault and battery. The broadcast also
advised that the person might be in possession of two firearms
and might be heading towards his mother's house on Orton Marotta
Way.
Approximately two hours after the broadcast, the officers
encountered a white Infiniti with license plate number "FF720"
in the area of Orton Marotta Way and stopped it on St. Casimir
Street. Kluziak ordered both individuals in the vehicle to
place their hands in view for safety reasons. Both the
defendant, who was the driver, and the passenger complied. The
defendant initially put his hands on the steering wheel, but
then he moved his left hand downward so that Kluziak could not
see it. As a result, Kluziak ordered the defendant to get out
of the vehicle.
Once the defendant was out of the vehicle, Kluziak
conducted a patfrisk of him, which revealed no weapon. The
officer then conducted a search of the immediate area where the
defendant had been sitting in the vehicle and found a firearm
beneath the driver's seat. The defendant was placed under
arrest, and the police conducted an inventory search of the
3
The original broadcast only stated that the license plate
began with "FF," but the officers received the complete number
before encountering the defendant.
4
defendant's entire vehicle. More incriminating evidence was
discovered during this search.
b. The motion hearing. Kluziak, the only witness at the
suppression hearing, initially testified that he believed that
the radio broadcast occurred after the alleged victim of the
alleged domestic assault mentioned in the broadcast had come
into a police station and reported the information. The motion
judge, crediting this testimony, made oral findings that the
alleged victim had come into the station. Immediately after the
judge concluded her findings, defense counsel requested
clarification because he did not "believe there was ever any
testimony that someone came into a police station." The judge
then asked Kluziak, who was still in the court room, whether he
had testified that the victim had come into the police station.
Kluziak initially responded that he did not believe he had so
testified and that he was unaware how the crime was reported.
When pressed by the judge further, he gave an equivocal answer.
In response, the judge decided to "strike all of the
findings, regarding the two individuals that came to the station
or that [a domestic assault and battery] was reported that way."
The judge acknowledged that the lack of information regarding
the reason for the radio broadcast weakened the Commonwealth's
case, but nevertheless found that there was reasonable suspicion
for the stop because the police independently corroborated the
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broadcast's prediction that the vehicle would be heading in the
direction of the defendant's mother's house on Orton Marotta
Way. The judge accordingly denied the motion to suppress.
2. Discussion. When reviewing the denial of a motion to
suppress, this court accepts "the judge's subsidiary findings of
fact absent clear error and leave[s] to the judge the
responsibility of determining the weight and credibility to be
given oral testimony presented at the motion hearing."
Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting
Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000). "We
conduct an independent review of the judge's application of
constitutional principles to the facts found." Commonwealth v.
Hoose, 467 Mass. 395, 400 (2014). With the exception of the
finding that the vehicle was heading in the direction of the
defendant's mother's house, discussed infra, we accept the
motion judge's findings of fact as supported by the record,
including her decision to strike all testimony related to how
the domestic assault and battery was reported to the police.
An investigatory stop is only justified if the police have
reasonable suspicion to conduct the stop. Commonwealth v.
Phillips, 452 Mass. 617, 626 (2008). Reasonable suspicion
exists when an officer, based on specific, articulable facts and
reasonable inferences therefrom, in light of the officer's
experience, has reasonable grounds to suspect "a person is
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committing, has committed, or is about to commit a crime"
(citation omitted). Commonwealth v. Gomes, 453 Mass. 506, 511
(2009).
This court has recognized that police officers can and do
"rely on flyers, bulletins, or radio information coming from
dispatchers and fellow officers in conducting a threshold
inquiry of a suspect." Commonwealth v. Riggieri, 438 Mass. 613,
616 (2003). "When, as here, a police radio broadcast directs
officers to make an investigatory stop of a motor vehicle, the
stop is lawful only if the Commonwealth establishes both the
indicia of reliability of the transmitted information and the
particularity of the description of the motor vehicle."
Commonwealth v. Lopes, 455 Mass. 147, 155 (2009). Here, the
broadcast contained sufficient particularity regarding the
vehicle, identifying its color and make, as well as the license
plate number. See Commonwealth v. Anderson, 461 Mass. 616, 622
(2012).
"To establish that the transmitted information bears
adequate indicia of reliability, 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)." Lopes, 455 Mass. at
155-156. See Commonwealth v. Upton, 394 Mass. 363, 374-375
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(1985). "Because the standard is reasonable suspicion rather
than probable cause, a less rigorous showing in each of these
areas is permissible." Commonwealth v. Depina, 456 Mass. 238,
243 (2010), quoting Commonwealth v. Lyons, 409 Mass. 16, 19
(1990). Although independent police corroboration may "make up
for deficiencies in one or both of these factors" (citation
omitted), Depina, supra, "each element of the test must be
separately considered and satisfied or supplemented in some
way." Upton, 394 Mass. at 376.
Here, the Commonwealth satisfied neither the basis of
knowledge test nor the veracity test, and there was not
sufficient independent corroboration of the information in the
broadcast concerning a crime having been committed after the
judge struck the source of the radio broadcast from her
findings.
As to the basis of knowledge, there was no evidence
indicating how the individual responsible for the radio
broadcast came to have the information about the defendant's
whereabouts. See Commonwealth v. Fraser, 410 Mass. 541, 546
(1991). The radio broadcast itself did not contain any details
that would suggest that the person providing the information had
firsthand knowledge of the alleged domestic incident. Cf.
Depina, 456 Mass. at 243 (holding basis of knowledge test
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satisfied where dispatch was based on caller's indication that
she personally heard gunshots and saw suspect flee).
The Commonwealth similarly failed to establish the veracity
of the radio broadcast. To satisfy the veracity test, the
Commonwealth needs to show the source of information had either
a demonstrated history of reliability, Commonwealth v. Mubdi,
456 Mass. 385, 396-397 (2010), or the existence of
"circumstances assuring trustworthiness on the particular
occasion of the information's being furnished," 2 W.R. LaFave,
Search & Seizure § 3.3(c) (5th ed. 2012). See Anderson, 461
Mass. at 625.
Here, the record contained no evidence of the source
providing the information, so there could be "no evidence
regarding the [source's] past reliability or reputation for
honesty." Anderson, 461 Mass. at 622. See Depina, 456 Mass. at
243-244. Nor did the radio broadcast itself provide any
indications of its veracity. See Anderson, 461 Mass. at 624-625
(holding veracity test may be satisfied where anonymous caller
makes statements "comparable to an excited utterance"). In the
present case, the content of the radio broadcast was devoid of
any detail as to whether the information came from a declarant
in an excited state, whether it came from a percipient witness
to the abuse, or whether it bore any other similar indications
of trustworthiness.
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Finally, the police did not provide adequate independent
corroboration to remedy the deficiencies under either test. The
only police corroboration was that the defendant was in the
general vicinity of Orton Marotta Way and driving a vehicle that
matched the description given over the radio. The motion
judge's conclusion that the radio broadcast was corroborated by
the fact that the vehicle was near the house of the defendant's
mother is not supported by the record. To the contrary, no
evidence was presented that the police had information
independent of the radio broadcast that the mother lived on
Orton Marotta Way.
Corroboration of purely innocent details that are
observable by any bystander, such as the description of a
vehicle and its location, provides only limited enhancement to
the reasonable suspicion determination. See Mubdi, 456 Mass. at
397-398; Lyons, 409 Mass. at 20-21. Since the motion judge's
findings were devoid of the source of any information in the
radio broadcast, police observation of the defendant's vehicle
in the general area as predicted was not enough independent
corroboration to meet the reasonable suspicion standard.
Conclusion. The judgments of conviction are reversed and
the verdicts are set aside. The order denying the motion to
suppress is reversed, and the case is remanded to the Boston
10
Municipal Court Department for further proceedings consistent
with this opinion.
So ordered.