Opinion
10-P-1524
09-15-2011
COMMONWEALTH v. KEVIN MIRANDA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal by the Commonwealth, we review the decision allowing the defendant's motion to suppress. For the same thoughtful reasons given by the judge below, we affirm.
The Commonwealth does not challenge the judge's findings of fact, which were well supported by the evidence. The judge found that:
'On August 2, 2009, at 3:30 in the afternoon, Officer Ryan Nicholson of the Westport PD received a dispatch that callers had reported an erratic driver on Rt. 88. The callers reported a large, red Ford pickup traveling on Rt. 88 at mile marker 5. Officer Nicholson drove north to mile marker 7 to see if he could observe the truck. He waited at an intersection and saw a truck matching the description drive by. He pulled into traffic and followed three cars behind. His view was partially obstructed until he was able to get directly behind the truck. The officer did not observe the truck commit any civil infractions while he followed it. When it was safe to do so, he pulled the truck over. It should be noted that this area of Rt. 88 is a major highway in the town of Westport and that it is heavily traveled in the summer from the area of Horseneck Beach. Though the 911 tape was excluded from evidence, the defendant's counsel, in response to questions from the court, conceded that the callers who reported the observed erratic driving identified themselves to police.'
'In reviewing the denial of a motion to suppress, 'we 'grant substantial deference to the judge's ultimate conclusions,'' Commonwealth v. Rodriguez, 425 Mass. 361, 364 (1997), quoting Commonwealth v. Mandile, 397 Mass. 410, 412 (1986), and 'accept the motion judge's subsidiary findings of fact absent clear error.' Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases cited. However, we 'independently review[] the correctness of the judge's application of constitutional principles to the facts found.' Commonwealth v. Magee, 423 Mass. 381, 384 (1996), quoting Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995).' Commonwealth v. Jones, 439 Mass. 249, 254-255 (2003).
The Commonwealth argues that the judge erred when she concluded that the description given to the officer was not sufficiently particularized to support a reasonable, articulable suspicion to stop the defendant's vehicle. Although the callers identified the location, direction of travel, and color and make of car, no year (or other description of condition or age) was given, nor were any other markings conveyed. Similarly, no license plate information was reported. There was also no information given as to the number, identity, or characteristics of occupants of the car. Although the callers reported 'erratic' driving, no further description was given and, in any event, although the officer followed the defendant's car for between two and four minutes, he observed no erratic driving or other driving infraction of any sort. The road was heavily trafficked at that time of year, and there was at least one point of entrance onto Route 88 in between markers five and seven. In short, this case turns on whether the information that a large, red Ford pickup truck was traveling on a certain road in a certain direction at a certain time was sufficiently particularized to justify a stop, where the only other information (i.e., that the driver was driving erratically) was not confirmed by the officer's own observations before the stop.
We agree with the motion judge that, on the facts presented here, it is not. 'When, 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). The car was of a common make and had no distinctive or personalized features. Contrast id. at 158 (description included not only the car's color but also the fact that it carried a Cape Verdean flag and had tinted windows). No license plate information was given. Contrast Commonwealth v. Riggieri, 438 Mass. 613, 614 (2003) (the location, direction, and description of the automobile was given, together with its license plate information). No description of the occupant(s) was reported, nor was there any description of a particular crime. Contrast Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974) (description gave not only the color, direction, and location of car, it included the number of occupants and information that a bank robbery had occurred). The driver was not observed to be acting oddly, nor was he driving the car 'erratically' as had been reported in the broadcast. Contrast Commonwealth v. Stawarz, 32 Mass. App. Ct. 211, 213 (1992) (sufficient basis to stop vehicle where not only was year, make, color, and model of car given, driver and occupant of car were observed by police to be acting suspiciously in proximity to location where similar vehicle had been reported stolen).
For the reasons set out above, the order allowing the defendant's motion to suppress is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),