COMMONWEALTH vs. JOHN C. DEPIERO.
No. 13-P-572.
Middlesex. January 10, 2014. - February 19, 2015.
February 19, 2015
87 Mass. App. Ct. 105 (2015)
Present: KANTROWITZ, VUONO, & SULLIVAN, JJ.
Further appellate review granted, 472 Mass. 1101 (2015).
A District Court judge properly denied a criminal defendant‘s pretrial motion to suppress the fruits of an investigatory stop of his automobile by a State police trooper following an anonymous 911 telephone call reporting a “drunk” driver, where reasonable suspicion justified the stop, in that the basis of the caller‘s knowledge could be inferred from his report that he had witnessed an act of reckless driving [108-110]; in that the caller‘s reliability (although a close question) could be inferred from the fact that the 911 call was made contemporaneously with his observation of apparent criminal activity, i.e., driving while intoxicated (a grave danger to the public) [110-113]; and in that, even though the trooper had not personally observed any suspicious behavior, he knew that the defendant was on probation for drunk driving, and the caller‘s report of a driver swerving all over the road was a significant indicator of drunk driving such that the trooper could reasonably suspect that it was consistent with driving while under the influence of alcohol [113-114].
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.
Jane D. Prince (Randy S. Chapman with her) for the defendant.
Radu Brestyan, Assistant District Attorney, for the Commonwealth.
VUONO, J. 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-
Facts.3
At approximately 2:00 A.M. on August 11, 2011, an unidentified man made 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
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
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.
Discussion.9
To justify a motor vehicle stop under theAs 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 (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 (2009) (caller‘s report of a man holding a gun in the air not credited, in part because the caller failed to report own location); Commonwealth v. Mubdi, supra at 396 (caller‘s basis of knowledge questioned where the 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
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
The circumstances of this case are similar to those addressed by the Supreme 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 (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
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 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 (2009) (officer‘s knowledge that the defendant had 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
Judgment affirmed.
Notes
In a divided opinion, the United States Supreme Court recently concluded that while 911 calls are not per se reliable, a “caller‘s use of the 911 system is . . . one of the relevant circumstances that, taken together, justified the officer‘s reliance on the information reported in the 911 call.” Navarette v. California, 134 S. Ct. 1683, 1690 (2014). In that case, an unidentified 911 caller reported being run off the road by another vehicle and provided the vehicle‘s location, direction, make, and license plate number. Id. at 1686-1687. In considering the call‘s reliability, the Court observed that numerous technological and regulatory advancements guard against false 911 reports, including that 911 calls can be recorded and that the Federal Communications Commission requires that cellular telephone carriers “relay the caller‘s [tele]phone number to 911 dispatchers” and “identify the caller‘s geographic location with increasing specificity.” Id. at 1689-1690. The Court also noted that making a false 911 report subjects a caller to prosecution. Ibid. False 911 reports are also subject to prosecution in Massachusetts. See
However, the four dissenting justices in Navarette discounted, inter alia, the reliability of 911 calls. The dissent criticized the majority‘s conclusion that the “ease of identifying 911 callers” enhances the reliability of 911 calls, pointing out that “[t]here is no reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable.” 134 S. Ct. at 1694 (Scalia, J., dissenting). Reasoning that technological and regulatory developments can only lessen the likelihood of false reports where callers are aware of such developments and adjust their behavior accordingly, the dissent concluded that an anonymous 911 call reporting “generally available” details does not, without more, support reasonable suspicion. Id. at 1693.
Numerous State appellate courts are in accord with the majority‘s reasoning. See, e.g., Grant v. State, 139 So. 3d 415, 418 (Fla. Dist. Ct. App. 2014) (whether a tip came in via a 911 call is relevant to a reasonable suspicion determination); People v. Linley, 388 Ill. App. 3d 747, 750 (2009) (most people likely aware that calling 911 places their anonymity at risk); State v. Gamble, 218 N.J. 412, 433-434 (2014) (caller‘s use of the 911 system contributes to reasonable suspicion).
Other State appellate courts have aligned with the dissent‘s reasoning, concluding that 911 calls do not carry heightened reliability where there is no evidence that the caller expected to be, or actually was, identifiable. See, e.g., Matthews v. State, 431 S.W.3d 596, 604 n.29 (Tex. Crim. App. 2014) (tip not reliable in part because there was no evidence that the caller knew about a “call sheet” or that the caller could actually be traced); State v. Saggers, 182 Wash. App. 832, 847 (2014) (distinguishing Navarette because the 911 call was placed from a gasoline station pay telephone with no connection to the caller).