Commonwealth v. Manha

• Decision Date: 28 February 2018
• Docket Number: SJC–12342
• Citation: 479 Mass. 44,91 N.E.3d 669
• Parties: COMMONWEALTH v. Anthony F. MANHA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 44
91 N.E.3d 669

COMMONWEALTH
v.
Anthony F. MANHA.

SJC–12342

Supreme Judicial Court of Massachusetts, Suffolk..

Argued December 5, 2017
Decided February 28, 2018

Leah Hook, Lynnfield, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

479 Mass. 44

Here we address the authority of the police to stop and perform a Terry-type search of a motor vehicle after an anonymous

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911 caller reported that the driver of that vehicle threatened the caller, a fellow motorist, with a gun. The driver, defendant Anthony F. Manha, appeals from a conviction of assault with a dangerous weapon. The Appeals Court affirmed in an unpublished memorandum and order pursuant to its rule 1:28. Commonwealth v. Manha, 91 Mass. App. Ct. 1105, 79 N.E.3d 1109 (2017). We granted the defendant's application for further appellate review. He claims that the police lacked probable cause to stop him and that, therefore, the pellet gun found subsequently in his vehicle should have been suppressed. We conclude that, in these circumstances, the information that the police possessed gave them reasonable suspicion to stop and perform a protective sweep of the defendant's motor vehicle, and that, given the officers' safety concerns, reasonable suspicion was all that was required. We therefore affirm the conviction.

Background. We present the facts as found by the motion judge. On July 9, 2012, while on patrol, Trooper John Guest of the State police received a radio call of a then-ongoing 911 call from a motorist regarding a road rage incident. According to the 911 caller, an individual in another motor vehicle had pointed a gun at her as she traveled southbound on Route 93 in Boston. She described the gunman as a white male in his forties who was wearing glasses. She further provided a description of his vehicle, a gray Jeep Cherokee, along with its registration number, location, and direction of travel.

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Based on this information, Guest located the vehicle and followed it for a few miles (observing no traffic violations or other criminal activity) before signaling to the driver to stop. Guest and two other troopers who had since arrived drew their weapons and ordered the driver, the defendant, to get out of the vehicle. A patfrisk of the defendant's person revealed no weapons. The troopers placed the defendant in a police vehicle and performed a protective sweep of the Jeep. In the rear area of the vehicle they discovered a black case. Inside they found a pellet gun in the shape of a hand gun.

Discussion. In our review of the denial of the defendant's motion to suppress, we accept the motion judge's factual findings unless clearly erroneous, and independently apply the law to those findings to determine whether actions of the police were constitutionally justified. See Commonwealth v. Molina, 467 Mass. 65, 72, 3 N.E.3d 583 (2014) ; Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004).

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1. Reasonable suspicion for stop. To perform an investigatory stop of a vehicle, the police require "reasonable suspicion, based on specific, articulable facts and inferences therefrom, that an occupant ... had committed, was committing, or was about to commit a crime." Commonwealth v. Anderson, 461 Mass. 616, 621, 963 N.E.2d 704, cert. denied, 568 U.S. 946, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012), quoting Commonwealth v. Alvarado, 423 Mass. 266, 268, 667 N.E.2d 856 (1996). In this case, the caller reported that another motorist pointed a gun at the caller while she was traveling on a busy highway.

Where an officer receives an order to stop a vehicle based on the information received via a police radio broadcast, the Commonwealth must show the particularity of the vehicle's description and indicia of reliability of the broadcast information. Anderson, 461 Mass. at 621, 963 N.E.2d 704. Here, the broadcast contained sufficient particularity of the defendant's vehicle's description (including its make, model, color, and registration number) and of the gender and age of the driver. See Commonwealth v. Depiero, 473 Mass. 450, 454, 42 N.E.3d 1123 (2016) (motor vehicle's make, color, and registration number); Anderson, supra at 621, 963 N.E.2d 704 (motor vehicle type, color, and registration number, and gender of occupants).

To determine whether the transmitted information provided by a 911 caller is sufficiently reliable to support reasonable suspicion, we apply the two-pronged Aguilar– Spinelli test; that is, we look to the caller's basis for knowledge as well as the veracity of the source of the information. Depiero, 473 Mass. at 454, 42 N.E.3d 1123. 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).

In this case, the basis of knowledge test is satisfied where the 911 caller reported her firsthand observations (and was, in fact, the victim of the alleged assault). See Anderson, 461 Mass. at 622, 963 N.E.2d 704 ; Commonwealth v. Alfonso A., 438 Mass. 372, 374–375, 780 N.E.2d 1244 (2003).

Establishing the veracity prong where an anonymous 911 caller is involved is less straightforward, as no evidence regarding his or her past reliability or honesty typically will be available. Anderson, supra at 622, 963 N.E.2d 704. See Commonwealth v. Depina, 456 Mass. 238, 243–244, 922 N.E.2d 778 (2010) ("In all but the most extraordinary circumstances, the Commonwealth will be unable to demonstrate that an anonymous source has a

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prior history of providing accurate information ..."). Nevertheless, the reliability of such a caller can be demonstrated in other ways.

For example, "[w]e have ... suggested that the reliability of citizen informants who are identifiable, but may not have been

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identified, is deserving of greater consideration than that of truly anonymous sources." Commonwealth v. Costa, 448 Mass. 510, 515, 862 N.E.2d 371 (2007). The same is true for callers who are aware that their calls are being recorded and that their telephone numbers can be traced.¹ Id. at 517, 862 N.E.2d 371.

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" prior to the stop being initiated. Anderson, 461 Mass. at 623, 963 N.E.2d 704. Additionally, the Commonwealth may establish the caller's veracity 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, 963 N.E.2d 704.

Here, although the 911 caller testified at trial, she did not testify at the hearing on the motion to suppress, and there was no evidence provided regarding her identity or whether she knew that she was identifiable to police.² For this reason, we must treat the caller as anonymous for the purposes of the motion to suppress. Nevertheless, a combination of factors made the call reliable under the reasonable suspicion analysis. See Depiero, 473 Mass. at 454, 42 N.E.3d 1123, quoting Commonwealth v. Mubdi, 456 Mass. 385, 396, 923 N.E.2d 1004 (2010) ( Aguilar – Spinelli test requires "less rigorous showing" where required standard is reasonable suspicion rather than probable cause).

First, the 911 caller was the alleged victim of the assault, and stayed on the line while the information was relayed to the trooper on patrol. A 911 caller who is willing to stay on the line after reporting a crime perpetrated against her is likely willing to

479 Mass. 48

be identified.³ A caller who is making a false report is less likely to prolong his or her exposure to charges by remaining on the line with law enforcement. Cf. Anderson, 461 Mass. at 625, 963 N.E.2d 704 (discussing circumstances that make call less likely to be false report).

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Second, the trooper was able to corroborate details provided by the caller prior to the stop, including the make, model, color, and registration number of the vehicle, and the driver's race and gender. See Costa, 448 Mass. at 518, 862 N.E.2d 371. See also Depiero, 473 Mass. at 457, 42 N.E.3d 1123.

Finally, the caller reported that a fellow motorist pointed what appeared to be a firearm at her. "The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus." Depina, 456 Mass. at 247, 922 N.E.2d 778. Given the reported assault with a firearm, "the police would have been remiss had they not conducted an...