Commonwealth v. Depiero , 473 Mass. 450 ( 2016 )

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SJC-11893
COMMONWEALTH vs. JOHN C. DEPIERO.
Middlesex. November 3, 2015. - January 4, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Constitutional Law, Investigatory stop, Reasonable suspicion.
Search and Seizure, Threshold police inquiry, Reasonable
suspicion. Threshold Police Inquiry. Motor Vehicle,
Operating under the influence. Evidence, Anonymous
statement, Corroborative evidence.
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 Leony, J., and the case was heard by Joseph
W. Jennings, III, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Jane Prince (Randy S. Chapman with her) for the defendant.
Casey E. Silvia, Assistant District Attorney, for the
Commonwealth.
Daniel K. Gelb, for National Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
Chauncey B. Wood, Dahlia S. Fetouh, Nancy A. Dinsmore, &
Benjamin R. Cox, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
2
CORDY, J. In January, 2013, after a bench trial, the
defendant was convicted of operating a motor vehicle while under
the influence of alcohol (second offense) in violation of G. L.
c. 90, § 24 (1) (a) (1). On appeal, he argues that the denial
of his motion to suppress evidence obtained during a warrantless
stop of his vehicle was error.
The stop, made by State police Trooper John Dwyer, was
prompted by the receipt of an anonymous 911 call concerning an
apparent drunk driver traveling on Memorial Drive in Cambridge.
The defendant claimed that the stop was neither supported by
reasonable suspicion nor made pursuant to an ongoing emergency.
After a hearing, a judge denied the defendant's motion to
suppress, concluding that Dwyer "had reasonable suspicion to
conduct an investigatory stop." The judge reasoned that "[t]he
911 call was from an ordinary citizen -- not an informant -- who
had witnessed a motor vehicle infraction, namely, a motor
vehicle driving erratically on the roadway."1
1
The defendant objected to the introduction of the 911 call
at the motion to suppress hearing because the Commonwealth had
failed to authenticate the tape recording properly. There was
no error in admitting the 911 call. See Mass. G. Evid. § 1101
(d) (2015) ("[t]he law of evidence does not apply with full
force at motion to suppress hearings"). See also Commonwealth
v. Siny Van Tran, 460 Mass. 535, 546 (2011) ("[a] proponent
adequately lays the foundation for admission when a
preponderance of the evidence demonstrates that the item is
authentic"). The 911 call began with a statement that the
3
The Appeals Court affirmed the denial of the defendant's
motion to suppress, but on different grounds. Commonwealth v.
Depiero, 87 Mass. App. Ct. 105, 106 (2015). The Appeals Court
concluded that the information bore sufficient indicia of
reliability because the unidentified caller's observations were
made "under the stress or excitement of a 'startling or shocking
event.'" Id. at 112, quoting Commonwealth v. Depina, 456 Mass.
238, 244 (2010). Dwyer could therefore rely on the information
in establishing reasonable suspicion to conduct an investigatory
stop. Id. at 113.
Subsequent to the judge's ruling on the defendant's motion
to suppress, the United States Supreme Court released its
decision in Navarette v. California, 134 S. Ct. 1683 (2014),
regarding the weight properly afforded to the reliability of
information provided to police over the 911 emergency call
system by an anonymous caller. The Court concluded that because
of technological and regulatory developments, "a reasonable
officer could conclude that a false tipster would think twice
before using [the 911] system," and therefore its use is "one of
caller had reached the "State [p]olice, 911." State police
Trooper John Dwyer testified that he was familiar with the
procedure by which the State police treat incoming
communications, and that such procedure was followed on the
night in question. Moreover, having reviewed the tape recording
of the communications, the information contained in the portion
of the 911 call that was recorded was consistent with the
information later communicated to Dwyer by the dispatcher.
4
the relevant circumstances that, taken together, [can justify
an] officer's reliance on the information reported in the 911
call." Id. at 1690. We granted the defendant's application for
further appellate review to consider whether the police had
reasonable suspicion to conduct an investigative stop of his
vehicle, and whether, under art. 14 of the Massachusetts
Declaration of Rights, we would afford weight similar to that
afforded by the Supreme Court to the reliability of anonymous
911 telephone callers.
We decline to endorse the Supreme Court's reliance on the
use of the 911 system as an independent indicium of reliability
for an anonymous tip. That being said, the information gleaned
from the anonymous call in the present case, corroborated by
other information, was sufficiently reliable to warrant a
finding that the officer had reasonable suspicion to stop the
defendant's vehicle. The denial of the defendant's motion to
suppress is therefore affirmed.2
1. Background. We summarize the facts found by the motion
judge, supplemented with facts supported in the record.3 On
2
We acknowledge the amicus briefs submitted by the
Massachusetts Association of Criminal Defense Lawyers and the
National Association of Criminal Defense Lawyers.
3
"[A]n appellate court may supplement a motion judge's
subsidiary findings with evidence from the record that 'is
uncontroverted and undisputed and where the judge explicitly or
implicitly credited the witness's testimony,' Commonwealth v.
5
August 11, 2011, at approximately 2 A.M., Trooper Dwyer received
a dispatch concerning a black Mercedes Benz motor vehicle
operating erratically and unable to maintain a lane on Memorial
Drive in Cambridge. The dispatch was prompted by a 911
telephone call received by a State police emergency operator in
Framingham from an unidentified caller.
The tape recording, played during the motion to suppress
hearing, indicates that the 911 caller was first informed that
"this line is recorded," before the emergency 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
Square and I've got his license number, but he's swerving all
over the road." The call was then relayed to the State police
barracks in the Brighton section of Boston, where it was
answered by Trooper Usom, who contacted Dwyer.
Usom's dispatch to Dwyer referred to "one call" for
"erratic operation" of a motor vehicle, and provided the make,
color, and registration number for the vehicle. Usom reported
the Belmont address to which the vehicle was registered, and
Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818(2008), so long as the supplemented facts 'do not detract from
the judge's ultimate findings.'" Commonwealth v. Jones-Pannell,
472 Mass. 429, 431 (2015), quoting Commonwealth v. Jessup, 471
Mass. 121, 127-128 (2015). The motion judge found "Dwyer's
testimony to be credible."
6
that the owner of the vehicle in question was "on probation for
drunk driving."
On receiving the dispatch, Dwyer drove to the defendant's
address, which took approximately five minutes. After a few
minutes the defendant's vehicle arrived, and Dwyer observed it
being driven for less than one minute before it turned into the
driveway of the Belmont address. Dwyer did not see the
defendant operate the vehicle in an illegal or unreasonable
manner. Dwyer turned into the driveway behind the defendant and
activated his cruiser's emergency lights.
The defendant almost fell on exiting the vehicle. Dwyer
"noticed [that the defendant's] hair was wild and unkept [sic],"
as well as the "odor of an alcoholic beverage." The defendant
produced his driver's license and vehicle registration. Dwyer
asked if the defendant had been drinking, to which the defendant
claimed to have had two drinks. Dwyer conducted field sobriety
tests, which the defendant failed. He concluded that the
defendant was operating his vehicle under the influence of
alcohol, and placed the defendant under arrest. At the station,
the defendant agreed to a breathalyzer test, which registered a
blood alcohol level of 0.18. Ultimately, he was charged with
operating a motor vehicle in violation of a license restriction,
G. L. c. 90, § 10; and operating a motor vehicle while under the
7
influence of liquor, second offense, G. L. c. 90, § 24 (1) (a)
(1).
2. Discussion. "In reviewing a ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
unless they are clearly erroneous but independently review the
judge's ultimate findings and conclusions of law." Commonwealth
v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S. Ct. 433(2012).
An investigatory stop is justified under art. 14 if the
police have "reasonable suspicion, based on specific,
articulable facts and reasonable inferences therefrom, that an
occupant of the . . . motor vehicle had committed, was
committing, or was about to commit a crime." Commonwealth v.
Alvarado, 423 Mass. 266, 268 (1996). Where, "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 dispatch contained adequate particularity:
it identified the make, color, and registration number of the
motor vehicle and the address attributed to the owner of the
vehicle. See Commonwealth v. Mubdi, 456 Mass. 385, 395 (2010).
Therefore, the question whether Dwyer had reasonable suspicion
8
to conduct the investigatory stop of the defendant's vehicle is
contingent on whether the information prompting the dispatch
bore sufficient indicia of reliability.
Under the Aguilar-Spinelli test, "[t]o 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 underlying
circumstances demonstrating that the source of the information
was credible or the information reliable (veracity test).'"
Anderson, 461 Mass. at 622, quoting Lopes, supra at 155-156.
See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.
Texas, 378 U.S. 108 (1964). Where the required standard is
reasonable suspicion rather than probable cause, "a less
rigorous showing in each of these areas is permissible." Mubdi,
456 Mass. at 396, quoting Commonwealth v. Lyons, 409 Mass. 16,
19 (1990). "Independent police corroboration may make up for
deficiencies in one or both of these factors." Commonwealth v.
Costa, 448 Mass. 510, 514-515 (2007), quoting Lyons, supra.As an initial matter, we conclude that the basis of
knowledge test was satisfied as to the 911 caller, as "[a]n
eyewitness's report to police of [a] recent, firsthand
observation satisfies the basis of knowledge prong." Anderson,
461 Mass. at 622, quoting Depina, 456 Mass. at 243. See
Anderson, supra (basis of knowledge test satisfied where caller
9
"personally witnessed two black men get into a silver or gold
Toyota Camry bearing a registration plate 22CO77"). The degree
of detail provided to the Framingham emergency operator, and
then related by the dispatcher, including the caller's reported
observation of the driver "swerving all over the road" at a
specific location on Memorial Drive, the registration number, as
well as the make and model of the motor vehicle, are sufficient
to establish that the information derived from the personal
observations of the 911 caller. See Commonwealth v. Alfonso A.,
438 Mass. 372, 374 (2003) (basis of knowledge test satisfied
where "it is apparent that the informant was reporting his own
observation"); Commonwealth v. Lubiejewski, 49 Mass. App. Ct.
212, 214 (2000) (test satisfied where informant "described the
operation of the truck as it was being driven along the
highway").
We therefore turn to the reliability prong. "The veracity
test is more difficult for the Commonwealth to satisfy where, as
here, the caller was anonymous. Because the caller was
anonymous, there could be no evidence regarding the caller's
past reliability or reputation for honesty." Anderson, 461
Mass. at 622.
10
The Commonwealth urges us to incorporate into our art. 14
jurisprudence4 the Supreme Court's recent decision in Navarette,
in which the Court, in a divided opinion, held that the use of
the 911 emergency system itself is an "indicator of veracity."
Navarette, 134 S. Ct. at 1689. The Court's reasoning, as noted,
was grounded in technological and regulatory developments
regarding the 911 emergency call system (making it easier to
identify telephone numbers of callers), coupled with the fact
that false tipsters are subject to prosecution. Id. at 1689-
1690. Although Massachusetts also prosecutes false 911 reports,
see G. L. c. 269, § 14B (a), and we have held in various
contexts that a citizen informant who is identifiable is
deserving of greater consideration than that of truly anonymous
sources, see, e.g., Costa, 448 Mass. at 515, we are not inclined
at this time to attribute veracity to all 911 callers. As the
dissenting Justices in Navarette pointed out, even if the police
are able to recover the telephone number and identity of 911
callers, "it proves absolutely nothing . . . unless the
anonymous caller was aware of that fact. It is the tipster's
belief in anonymity, not its reality, that will control his
4
Article 14 of the Massachusetts Declaration of Rights
provides greater protection in this area than does the Fourth
Amendment to the United States Constitution. Commonwealth v.
Upton, 394 Mass. 363, 373 (1985).
11
behavior." Navarette, 124 S. Ct. at 1694 (Scalia, J.,
dissenting). We agree.
The caller in this case was aware that his call was being
recorded; there is no way to know, however, based on the record
before us, whether the caller had reason to believe that he
might be identified or that the telephone that he was using
might be traced back to him, such that it could affect his
behavior or the veracity of the information he provided.5 See
Anderson, 461 Mass. at 622, quoting Mubdi, 456 Mass. at 397(where no evidence presented to caller that he or she was
identifiable by police, there is "no reason to believe the
caller needed to fear 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"). Contrast Costa, 448
Mass. at 517 ("By providing information to the police after
knowing that her call was being recorded, and that the number
she was calling from had been identified, . . . the caller
placed her anonymity sufficiently at risk such that her
reliability should have been accorded greater weight than that
5
In the "Frequently Asked Questions" portion of the Web
site of the Executive Office of Public Safety and Security,
http://www.mass.gov/eopss/agencies/state-911/e911/trng-and-
progs/faq.html [http://perma.cc/2HRM-5HUK], those who inquire
about the 911 emergency call system are advised that the system
may or may not be able to identify the phone numbers of persons
calling into it and the locations of their telephones, but
callers should "[a]ssume the 9-1-1 call taker does not know your
location" or "your [tele]phone number" (emphasis in original).
12
of an anonymous informant"). We therefore decline to credit any
indicia of reliability to the unidentified caller's information
merely because the information was transmitted in the form of a
911 telephone call.
However, even where a 911 telephone call is anonymous, the
Commonwealth can still establish a caller's reliability "through
independent corroboration by police observation or investigation
of the details of the information provided by the caller. . . .
Independent corroboration is relevant only to the extent that it
was known to the police before the stop was initiated"
(citations omitted). Anderson, 461 Mass. at 623. See
Commonwealth v. Barros, 435 Mass. 171, 178 (2001).6
6
The Appeals Court relied on the "excited utterance" theory
to conclude the 911 call bore adequate indicia of reliability, a
theory not raised in the trial court. Commonwealth v. Depiero,
87 Mass. App. Ct. 105, 112-113 (2015). See Commonwealth v.
Anderson, 461 Mass. 616, 624-625, cert. denied, 133 S. Ct. 433(2012), quoting Commonwealth v. Depina, 456 Mass. 238, 240
(2010).
Although we may consider this issue despite it being raised
for the first time on appeal, see Commonwealth v. Va Meng Joe,
425 Mass. 99, 102 (1997), the excited utterance theory is
inapposite in the present case, where the only information
regarding the occurrence of any criminal conduct came from the
911 caller. This is unlike the circumstances in Anderson, supra
at 619-620, 625, where police already had responded to a report
of a store robbery by two men matching the description of people
an anonymous caller subsequently described as getting into a
particular vehicle, and in Depina, supra at 240, where police
had received a request for an ambulance prior to receiving an
anonymous tip reporting that the caller had heard gunshots in
the backyard.
13
We conclude that the police observation and investigation
in this case adequately corroborated the details provided by the
unidentified caller, such that the information exhibited
"sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop." Anderson, supra at
623, quoting Florida v. J.L., 529 U.S. 266, 270 (2000). First,
Dwyer's observations corroborated the location of the driver at
the time of the 911 call. Dwyer, after consulting a map,
determined that he would not have the time to intercept the
defendant between the defendant's home in Belmont and the
location where the erratic driving was reported on Memorial
Drive in Cambridge. Based on those calculations, he drove
directly to the defendant's home, which took approximately five
minutes. Within a few minutes of his arrival, Dwyer observed
and identified a vehicle that matched the unidentified caller's
description arriving at the address to which he had been sent.
See Costa, 448 Mass. at 518 (police arrived within minutes of
Moreover, where there was no finding below, we have
reviewed the tape of the 911 call, and perceive nothing
particularly excited in the unidentified caller's tone or
nature. See Commonwealth v. Santiago, 437 Mass. 620, 624-625
(2002) (to determine if statement satisfies excited utterance
exception, we look to "whether the declarant displayed a degree
of excitement"). Although drunk driving presents a "grave
danger" to the public, Commonwealth v. Davis, 63 Mass. App. Ct.
88, 91 (2005), and thus may, in some instances, cause a 911
caller's declaration to warrant consideration as an excited
utterance, the caller here introduced the reason for dialing 911
as "[j]ust a call. . . ." In any event, we discern no indicia
of reliability from the unidentified caller's state of mind.
14
anonymous caller's tip, and "were able to corroborate many of
the [albeit innocent] details provided by the caller"). Second,
the fact that Dwyer was informed that the defendant was on
probation for the same type of criminal activity of which he was
suspected further corroborated the anonymous call. See
Commonwealth v. Germain, 396 Mass. 413, 418 (1985) (defendant's
record of recent convictions for similar crimes indicate
reliability of anonymous tip under Aguilar-Spinelli analysis).
These details provide a level of corroboration beyond that of
"innocent" or easily obtainable facts, see Alvarado, 423 Mass.
at 272, and the information contained in the 911 call therefore
passed the less rigorous veracity test needed under our
reasonable suspicion analysis. See Lyons, 409 Mass. at 19.
Even armed with a reliable tip that it was indeed the
defendant's motor vehicle that was driving erratically at
2 A.M., Dwyer's investigative stop of the defendant's vehicle
was justified only if the information created a reasonable
suspicion that "criminal activity may be afoot," Terry v. Ohio,
392 U.S. 1, 30 (1968); in other words, that the driver of a
motor vehicle "had committed, was committing, or was about to
commit a crime." Alvarado, supra at 268. We need not decide
whether a single instance of erratic driving may not be a crime,
because the information provided by the unidentified caller
regarding the defendant "swerving all over the road," coupled
15
with the information about the defendant being on probation for
a similar crime, was sufficient to create a reasonable suspicion
of criminal conduct, permitting Dwyer to make the stop even
without seeing any suspicious behavior personally. See
Commonwealth v. Gomes, 453 Mass. 506, 511 (2009) (officer's
knowledge of defendant's previous arrests on drug charges was
factor for consideration in justifying stop). Indeed, "[i]n
these circumstances, the police would have been remiss had they
not conducted an investigative stop of [the defendant's]
vehicle." Anderson, 461 Mass. at 625.7
3. Conclusion. We affirm the motion judge's denial of the
defendant's motion to suppress, albeit for reasons different
than those relied on by the Appeals Court.
So ordered.
7
In light of the conclusion that the stop of the
defendant's vehicle was supported by reasonable suspicion, we
need not reach the Commonwealth's argument, based on Davis, 63
Mass. App. Ct. at 90-91, that the stop was reasonable under the
emergency doctrine.