Opinion
16–P–173
02-02-2017
COMMONWEALTH v. Maribel ROSADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Before us is the defendant's interlocutory appeal from the denial of her motion to suppress evidence recovered from her person following the stop of a vehicle in which she was a passenger, which led to an exit order and patfrisk. We conclude that the anonymous tip that led to the stop was insufficiently reliable to support reasonable suspicion that a crime had been, was being, or was about to be committed, and we therefore reverse.
Background . The following facts are taken from the motion judge's findings, supplemented by the 911 call transcript and recordings of police radio and telephone calls admitted by stipulation at the motion hearing. At about 10:15 P.M. on October 19, 2014, an individual called 911 and asked to be connected to the Holyoke police department. The caller reported, "I was just driving and there was a car driving and there is, like, a guy with a gun inside a car. And I took the license plate because I was, like, really scared." The 911 operator asked the caller, "And you saw him showing the gun?" The caller replied affirmatively, "Mm-hmm." The caller gave the vehicle's license plate number, the operator asked the caller whether the vehicle was black, and the caller confirmed that it was. The operator instructed the caller not to hang up the telephone while the operator connected to the Holyoke police. The operator informed Holyoke dispatch that the license plate registration went "back to a party on Hamilton Street," and that the caller was "mapping up here [sic ] 28 Hamilton." The caller either hung up or was disconnected before she could be patched through to Holyoke. Using the telephone number associated with the call, Holyoke dispatch attempted to reach her numerous times without success.
In response to the call, Holyoke dispatch directed officers to Hamilton Street for a report of a male showing a firearm while operating a black Nissan Maxima with the license plate reported by the caller. About ten minutes after the dispatch, a Holyoke police officer observed the Maxima driving in front of her cruiser. She followed it for approximately one minute before activating her cruiser's blue lights and stopping the vehicle in a high-crime area, one where she had previously responded to calls involving firearms.
Just as the 911 operator conveyed to Holyoke, the Holyoke dispatcher conveyed to officers that the caller reported the male "showing a handgun inside of a vehicle." The motion judge found that the radio call informed officers that the male was "brandishing" a firearm while "operating" a vehicle. See discussion infra .
As she approached, she observed a female passenger, the defendant, whom she recognized from prior interactions with the "La Familia" gang. Although the defendant had not been arrested for or directly linked to any crimes committed by the gang, she had been observed in the presence of gang members. The officer ordered the defendant to exit the vehicle and performed a patfrisk, at which time she felt a fist-sized lump in the side of the defendant's bra. Concerned that it was a weapon, the officer removed the lump and discovered that it contained packages of suspected controlled substances. No firearm was found, and the vehicle's male driver was released with a warning. The defendant was arrested and later indicted for various drug crimes.
Discussion . In reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I ., 450 Mass. 818, 821 (2008). We "conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Jimenez , 438 Mass. 213, 218 (2002).
Here we must decide whether the Holyoke police officer had reasonable suspicion, "based on specific, articulable facts and reasonable inferences drawn therefrom," to stop the vehicle. Commonwealth v. Wren , 391 Mass. 705, 707 (1984). We conclude that she did not, because the Commonwealth failed to establish the reliability of the 911 caller's tip.
To justify a stop on the basis of information provided in an anonymous tip, the Commonwealth must show that the information relied upon had sufficient indicia of reliability. See Commonwealth v. Mubdi , 456 Mass. 385, 395 (2010). See also Commonwealth v. Lyons , 409 Mass. 16, 21-22 (1990) (to establish reasonable suspicion, anonymous tip must include "some specificity of nonobvious facts which show familiarity with the suspect or specific facts which predict behavior").
The Commonwealth must also show that the description of the suspect had sufficient particularity that it was reasonable for the police to suspect a person matching that description. Mubdi , 456 Mass. at 395. Here, the vehicle license plate number provided by the caller established with particularity the vehicle to be stopped. See Commonwealth v. Depiero , 473 Mass. 450, 454 (2016).
Under art. 14 of the Massachusetts Declaration of Rights, reliability encompasses both "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. 147, 156 (2009). "Independent police corroboration may make up for deficiencies in one or both of these factors." Lyons , 409 Mass. at 19.
Here, the defendant does not dispute that the contemporaneous firsthand observations by the caller properly may satisfy the basis of knowledge test. See Commonwealth v. Alfonso A ., 438 Mass. 372, 374 (2003). Instead, she argues, the Commonwealth presented no evidence of the anonymous caller's "past reliability, reputation for honesty, or motivation." Mubdi , 456 Mass. at 396. The motion judge correctly agreed, ruling that the Commonwealth had "not satisfied the reliability prong ...." Nothing in the record indicates that the caller was identifiable, i.e., that she was aware that she put her anonymity at risk and could be subject to charges of filing a false report. See Commonwealth v. Depiero , 473 Mass. 450, 455–456 (2016). Contrast Commonwealth v. Costa , 448 Mass. 510, 516 (2007). The 911 operator informed her only that her call was being recorded, not that it could be traced back to her.
Also, as noted supra , despite the operator's request that the caller not hang up while the operator connected her with the Holyoke police, she either hung up or was disconnected, and the Holyoke dispatcher's repeated efforts to reach her by calling the number were unsuccessful.
The judge erred, however, in ruling that police corroboration of the details of the tip—the car's description and license number—compensated for the deficiencies in the tip's reliability. "Corroboration of purely innocent details that are observable by any bystander, such as the description of a vehicle and its location, provides only limited enhancement to the reasonable suspicion determination." Commonwealth v. Pinto , 476 Mass. 361, 365 (2017). Accord Commonwealth v. Perez , 80 Mass. App. Ct. 271, 277–278 (2011) (corroboration of "innocent fact" of car's license plate number did not establish reliability of anonymous tip). The caller made no prediction about the suspect's behavior or any criminal activity that was about to occur. See Lyons , 409 Mass. at 21 ("[T]he police verified no predictive details that were not easily obtainable by an uninformed bystander"). Contrast Commonwealth v. Cast , 407 Mass. 891, 898 (1990). And the officer observed no suspicious behavior that "might have heightened police concern." Lyons , 409 Mass. at 21. The Commonwealth, therefore, failed to satisfy the veracity prong and thus did not establish sufficient indicia of reliability of the anonymous tip.
Further undercutting the existence of reasonable suspicion here, mere possession of a firearm is not a crime, and even a reliable tip that an individual is carrying a firearm does not, without more, furnish reasonable suspicion. See Commonwealth v. Alvarado , 423 Mass. 266, 269-270 (1996). Although the judge found that the 911 call reported "a male brandishing a firearm while operating" a vehicle, the caller stated only that she saw "a guy with a gun inside a car" and then agreed with the operator's suggestion that the male was "showing" the gun. We question the semantic leap from "showing" to "brandishing" and the finding of "operating" based on evidence of mere presence in the vehicle. Although the caller asserted that she was "like, really scared," she did not elaborate on whether anything in the male's conduct, or anything else beyond the mere sight of the gun, made her fearful. That the stop here occurred in a high-crime area, where the officer had previously responded to calls involving firearms and other crimes, adds little to particularized suspicion. "Just being in a high crime area is not enough to justify a stop." Commonwealth v. Meneus , 476 Mass. 231, 238 (2017), quoting from Commonwealth v. Grandison , 433 Mass. 135, 139 (2001). Nor does the defendant's gang connection add to reasonable suspicion, as the police were unaware of it until after the stop.
The Commonwealth asserts that police had a duty to investigate the tip, even if it did not raise reasonable suspicion of a crime. No doubt, a tip concerning possession of a firearm "deserves the immediate attention of law enforcement officials." Commonwealth v. Stoute , 422 Mass. 782, 790 (1996). Our conclusion here does not suggest otherwise. Even brief further investigation here might have disclosed additional information supporting reasonable suspicion that criminal activity was afoot.
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The recent decision in Commonwealth v. Edwards , 476 Mass. 341, 345-347 (2017), confirms our conclusion. In Edwards , "an exceedingly close case," id . at 342, a 911 caller identified himself by name and told the operator that he could see the defendant, whom he also identified by name, standing in the street holding a gun; earlier he had seen the defendant drive off, return, get out of the vehicle while holding a gun (apparently unholstered), and then get back in the vehicle. Id . at 342–343, 346–347. When the police arrived at the scene they observed the defendant sitting alone in the vehicle with all of its lights off; all this occurred at approximately 1:30 A.M. on a deserted street in a residential area, within a few blocks of which there had been repeated crimes of violence, including gun violence and homicides. Id . at 346. These facts, "particularly [the defendant's] handling of the gun as he got out of and then reentered the [vehicle]," id . at 347, were sufficient to establish reasonable suspicion to support an investigatory stop, "even if just barely," ibid ., by "the very narrowest of margins," id . at 350. Here, in contrast, the 911 caller was anonymous, her tip included nothing about any unusual handling of the gun, and the police did not observe anything unusual about the vehicle driver's behavior before the stop.
Conclusion . The anonymous tip did not satisfy the requirements of reliability, nor was it sufficiently corroborated by the police, in order to support reasonable suspicion that a crime had been, was being, or was about to be committed. The motion to suppress should have been allowed.
Order denying motion to suppress reversed. A new order shall enter allowing the motion.