Opinion
15-P-1628
02-07-2017
COMMONWEALTH v. Anthony F. MANHA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant, Anthony F. Manha, was convicted of assault by means of a dangerous weapon. The conviction stemmed from an incident of road rage during which the defendant pointed what appeared to be a gun at a person in another vehicle. On appeal, he contends that the judge erred by denying his motion to suppress evidence, which he claims was seized during an unlawful search of his vehicle. We conclude that the motion to suppress was properly denied, but reach that determination on grounds that differ slightly from those articulated by the motion judge, and affirm.
The judge entered a required finding of not guilty on a second charge of disorderly conduct.
Background . The following facts are taken from the findings of the motion judge and from uncontested evidence necessarily credited by him. See Commonwealth v. Isaiah I ., 448 Mass. 334, 337 (2007). At approximately 6:00 P.M. on July 9, 2012, State police Trooper John Guest was on patrol in a marked cruiser on Interstate 93 when he received a radio call from State police Sergeant Goslin. Sergeant Goslin informed Trooper Guest that he was on the telephone with a woman who had called 911 to report a "road rage incident," with "a possible assault with a handgun." According to Sergeant Goslin, the woman relayed information about "an aggressive driver" who "pointed a gun at her" after having been cut off by the vehicle she was in. The caller provided a description of the driver, a white male in his forties, wearing glasses, and his vehicle, a gray Jeep Cherokee with a Massachusetts license plate. Trooper Guest took up a position south of where the incident reportedly occurred, and soon thereafter, he saw the vehicle that had been described. As Trooper Guest pulled out to follow the vehicle, he also saw that the driver matched the description that had been relayed to him.
Trooper Guest followed the vehicle for several minutes without observing any traffic violations or erratic behavior. Upon reaching an area of the highway where he had arranged for other troopers to meet him, Trooper Guest activated his lights and the vehicle pulled over. He and two other troopers approached the vehicle with their service weapons drawn, and, through a public address speaker on one of the cruisers, one of the other troopers ordered the driver, subsequently identified as the defendant, out of the vehicle. The defendant was arrested without incident and the troopers then searched the vehicle. In the back of the vehicle, atop other items, one of the other troopers found a black case, inside of which was an air-powered pellet gun that resembled a handgun.
On the basis of those facts, the motion judge ruled that Trooper Guest had reasonable suspicion to stop the defendant because the 911 caller had a basis of knowledge and the requisite indicia of veracity. Relying on Commonwealth v. Anderson , 461 Mass. 616, 624 (2012), the judge implicitly found that the 911 caller was reliable because she made her report immediately after witnessing a shocking event. The judge further ruled that the police had probable cause under exigent circumstances "to believe that the Defendant had possession or control over a gun on his person or in his car." As such, the judge found that both the arrest of the defendant and the subsequent search of the defendant's vehicle were permissible.
We note that the motion judge, as part of his reliability analysis, took judicial notice of the fact that 911 callers are told that their calls are recorded and that the emergency telephone system identifies their telephone numbers and/or identities. While that reasoning makes sense to us, the Supreme Judicial Court has rejected reliance on the "911 system as an independent indicium of reliability for an anonymous tip" unless "corroborated by other information" such as evidence establishing the system's capability for identification. Commonwealth v. Depiero , 473 Mass. 450, 452, 455-456 (2016). Here, the Commonwealth's failure to introduce evidence (which apparently was available at the time of the hearing) to establish that the caller was identifiable precludes a finding of reliability on that ground.
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Discussion . "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Sliech-Brodeur , 457 Mass. 300, 306 (2010), quoting from Commonwealth v. Contos , 435 Mass. 19, 32 (2001). We review independently the application of constitutional principles to the facts found. Sliech-Brodeur , supra .
The defendant argues that the judge's decision was error. Specifically, he claims that the stop was unlawful because the Commonwealth failed to establish the reliability of the transmitted information. Where, as here, the 911 caller is anonymous, the Commonwealth was required to show the caller's basis of knowledge, as well as circumstances demonstrating her credibility or reliability. See Commonwealth v. Depiero , 473 Mass. 450, 454 (2016) (applying Aguilar -Spinelli test to anonymous 911 calls). Here, we readily conclude that the caller had an adequate basis of knowledge, as her report of the assault was based on first-hand observation. See id . at 454-455. The more difficult question is whether the police had an adequate basis for concluding that the 911 caller was reliable. Because the caller was anonymous, there was no basis for relying on her previous conduct. While, as the Commonwealth argues, reliability could be established by police corroboration of the information provided, the details that were corroborated here were not indicative of criminal activity. Thus, that corroboration may have provided sufficient reliability to justify an investigatory stop, but here the stop resulted in an immediate arrest for which probable cause was required.
In the circumstances presented, however, we agree with the motion judge that the 911 caller was under the influence of a shocking event and, therefore, her reliability was adequately established. See Anderson , supra . We further conclude that the troopers had "reasonable ground to believe that an exigency existed" and that their actions "were reasonable under the circumstances." Commonwealth v. Davis , 63 Mass. App. Ct. 88, 89-90 (2005), quoting from Commonwealth v. Marchione , 384 Mass. 8, 10-12 (1981). The information from the caller disclosed an imminent threat to public safety. Under the emergency doctrine, "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Commonwealth v. Hurd , 29 Mass. App. Ct. 929, 930 (1990), quoting from Mincey v. Arizona , 437 U.S. 385, 392 (1978). When the doctrine applies, courts may "relax[ ] the requirements that the Commonwealth must show the basis of knowledge and reliability of the informant." Commonwealth v. Lubiejewski , 49 Mass. App. Ct. 212, 215 (2000). In justifying the stop under the emergency doctrine, the Commonwealth must prove that the troopers had reasonable ground to believe that an exigency existed, and that their actions were reasonable under the circumstances. Davis , supra . The troopers' actions, here, were reasonable.
In so concluding, we acknowledge the defendant's argument that an uncorroborated tip cannot justify a search solely by virtue of mentioning a gun. See, e.g., Commonwealth v. Alvarado , 423 Mass. 266 267, 269-270 (1996) (no showing of imminent danger where anonymous caller reported observing gun concealed in vehicle); Commonwealth v. Gomes , 458 Mass. 1017 (2010) (no showing of imminent danger where anonymous caller reported man holding gun in air on street). However, here the caller did not merely report a gun—she reported that another driver had pointed it at her, a claim that palpably implicated the public's safety. "Police officers have a duty to investigate citizen reports of criminal activity, particularly if the conduct implicates the safety of the public." Commonwealth v. Fortune , 57 Mass. App. Ct. 923, 924 (2003). The same reasoning justifies the search of the defendant's vehicle. Given the basis for the stop, with its attendant risks to the public's safety and to the troopers themselves, it was not merely reasonable for them to search the defendant's car, "it would have been foolhardy not to have done so." Commonwealth v. Santiago , 53 Mass. App. Ct. 567, 571 (2002).
Judgment affirmed .