Commonwealth v. DePiero

• Decision Date: 04 January 2016
• Docket Number: SJC–11893.
• Parties: COMMONWEALTH v. John C. DEPIERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 450

42 N.E.3d 1123

COMMONWEALTH

v.John C. DEPIERO.

SJC–11893.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Nov. 3, 2015.

Decided Jan. 4, 2016.

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

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Daniel K. Gelb, Boston, for National Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Chauncey B. Wood, Dahlia S. Fetouh, Nancy A. Dinsmore, & Benjamin R. Cox, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

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

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, 25 N.E.3d 896 (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, 25 N.E.3d 896

, quoting Commonwealth v. Depina, 456 Mass. 238, 244, 922 N.E.2d 778 (2010). Dwyer could therefore rely on the information in establishing reasonable suspicion to conduct an investigatory stop. Id. at 113, 25 N.E.3d 896.

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, ––– U.S. ––––, 134 S.Ct. 1683, 188 L.Ed.2d 680 (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 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 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 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 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, 963 N.E.2d 704

, cert. denied, ––– U.S. ––––, 133 S.Ct. 433, 184 L.Ed.2d 265 (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, 667 N.E.2d 856 (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, 914 N.E.2d 78 (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, 923 N.E.2d 1004 (2010). Therefore, the question whether Dwyer had reasonable suspicion 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, 963 N.E.2d 704

, quoting Lopes, supra at 155–156, 914 N.E.2d 78. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (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, 923 N.E.2d 1004, quoting Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). “Independent police corroboration may make up for deficiencies in one or both of these factors.” Commonwealth v. Costa, 448 Mass. 510, 514–515, 862 N.E.2d 371 (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, 963 N.E.2d 704

, quoting Depina, 456 Mass. at 243, 922 N.E.2d 778. See Anderson, supra (basis of knowledge test satisfied where caller “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...