Opinion
No. 12–P–929.
2013-05-8
COMMONWEALTH v. Francis POOLE.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with operating under the influence, third offense, and negligent operation. After conducting an evidentiary hearing, a District Court judge found that the police lacked reasonable suspicion to stop the defendant and ruled to suppress all evidence resulting from the stop. The Commonwealth now appeals. We reverse.
Discussion. In reviewing a ruling on a motion to suppress, we “accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ “ Commonwealth v. Costa, 448 Mass. 510, 514 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “Because we find no clear error of fact that is material, our legal analysis focuses on ‘the correctness of the judge's application of constitutional principles to the facts as found.’ “ Commonwealth v. Depina, 456 Mass. 238, 241 (2010), quoting from Commonwealth v. Scott, supra. “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). See Commonwealth v. Mercado, 422 Mass. 367, 370–371 (1996); Commonwealth v. Riggieri, 438 Mass. 613, 615–616 (2003). “Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible .” Commonwealth v. Lopez, supra at 156, quoting from Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).
In this case, a motorist called the Attleboro police department and reported that the defendant was driving erratically in the vicinity of County Square in Attleboro. The motorist provided details of the defendant's car and also left her name and phone number with the dispatcher. The dispatcher then sent a radio dispatch to all officers providing a description of the defendant's automobile and reporting that the defendant had been observed driving erratically. Officer Fahey located and stopped the vehicle in question within forty-five seconds of receiving the dispatch. The motion judge found that since Officer Fahey (who was also the arresting officer) did not know the source of the original call to the police, he did not have a sufficient factual basis to reasonably suspect any misconduct by the defendant. The motion judge then went on to consider the applicability of the fellow-officer rule to the case at bar and after finding that it did not apply, allowed the motion to suppress. We need not reach the question of the applicability of the fellow-officer rule. Instead, we focus our analysis on whether the caller provided the police with sufficiently reliable and particular information to support the police stop. Ultimately, we disagree with the motion judge and determine that the Commonwealth sufficiently “establishe[d] both the indicia of reliability of the transmitted information and the particularity of the description of the motor vehicle.” Commonwealth v. Lopes, 455 Mass. at 155.
First, in order to establish particularity, “the Commonwealth must show that the description provided sufficient detail to allow the police officer relying on the [dispatch] reasonably to suspect that a motor vehicle matching the description was occupied by a person or persons who committed the crime under investigation.” Id. at 157. In the past, we have found sufficient particularity where a caller provides both the license plate number and a general description of the car in question. Commonwealth v. Perez, 80 Mass.App.Ct. 271, 274 (2011). In this case, the caller reported to the Attleboro police that a green pickup truck with commercial license plate M39454 was driving “all over the road .” Thus, the caller provided the police with sufficiently particular information.
Next, in order “[t]o establish that the transmitted information bears adequate indicia of reliability, 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).” Commonwealth v. Lopes, 455 Mass. at 155–156. “An eyewitness's report to police of her recent, firsthand observation satisfies the basis of knowledge prong.” Commonwealth v. Depina, 456 Mass at 243. In this case, the motorist who called the Attleboro police reported that she was driving behind the defendant and observed the defendant's erratic driving in the area of County Square. This firsthand, eyewitness report satisfies the basis of knowledge prong.
“As to the veracity test, our case law assigns greater reliability to an eyewitness whose identity is known to police than to one who is anonymous.” Ibid. “Where a caller is identifiable, and thus is subject to a charge of filing a false report as a consequence of providing false information to law enforcement, a court can consider this factor in assessing the reliability of the tip.” Commonwealth v. Perez, 80 Mass.App.Ct. at 276, citing Commonwealth v. Mubdi, 456 Mass. 385, 397 (2010). The caller in this case identified herself to the Attleboro police dispatcher and left her name and phone number. After arresting the defendant, Officer Fahey called and spoke with the caller to verify the substance of the caller's report. Thus, the caller's report also satisfies the veracity test.
Finally, we note that there are additional “analytic factors”—physical proximity, closeness in time, and danger to public safety—that provided the police with additional reasonable suspicion to stop the defendant. Commonwealth v. Perez, 80 Mass.App.Ct. at 278–279, quoting from Commonwealth v. Doocey, 56 Mass App.Ct. 550, 554 (2002). After receiving the police dispatch, Officer Fahey located the defendant only forty-five seconds later and roughly one mile from the defendant's reported location (County Square). Additionally, the caller's report that the defendant was driving erratically in a commercial area depicted an “imminent danger” and Officer Fahey did not need independent corroboration to apprehend the defendant. Commonwealth v. Cox, 56 Mass.App.Ct. 907, 909 (2002).
In all, we conclude that given the particularity and reliability of the caller's report as well as the presence of additional analytic factors, Officer Fahey possessed ample reasonable suspicion to stop and then arrest the defendant. Accordingly, we reverse the order to suppress evidence.
Order allowing motion to suppress reversed.