Commonwealth v. Depiero

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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.