Opinion
10-P-1315
09-28-2011
COMMONWEALTH v. MARK D. HUNTER.
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
Following a bench trial in the District Court on March 19 and 24, 2010, the defendant, Mark D. Hunter, was convicted of one count of operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, the defendant claims that the police lacked the reasonable suspicion of wrongdoing necessary to justify an investigative stop at the time they stopped him and therefore his motion to suppress should have been allowed. We affirm.
Discussion. The following facts were found by the motion judge. On March 14, 2009, the at a White Hen Pantry in Natick called the police to report that a customer who appeared intoxicated had driven away in a blue van with a certain license plate number. Officer Greg Lanoue responded to the call by speaking with the clerk in person. The clerk described the van and which direction it had gone, but did not give a physical description of the customer. However, he stated that the customer had been wobbling around and laughing repeatedly and appeared drunk. Soon after, Officer Lanoue located the van, which was stopped by the side of the road. The passenger had exited the van. While Officer Lanoue talked to that individual, the defendant, who was operating the van, started to drive away. At that point, Officer Lanoue told him to stop, and he complied.
Before trial, the defendant moved to suppress evidence derived from the stop or dismiss the charge on the grounds that Officer Lanoue did not have a reasonable suspicion of criminal activity 'based on specific, articulable facts and reasonable inferences therefrom' at the time of the stop. Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984). The motion judge denied the motion, finding that the clerk's information was sufficient foundation for reasonable suspicion to stop the defendant. We review the motion judge's findings of fact for clear error, but conduct an 'independent determination of the correctness of the judge's application of constitutional principles to the facts as found.' Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). See Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The defendant argues that the motion judge erred in finding that the clerk told Officer Lanoue that the intoxicated customer was driving the van. Absent this information, the defendant asserts, it would have been unreasonable for the police to suspect that the intoxicated customer was driving, rather than simply being a passenger in the van. He notes that Officer Lanoue did not mention this statement in the suppression hearing during direct or cross-examination, but only later when questioned by the judge. This factor is beside the point. The motion judge, who was able to observe the demeanor of the witness, made a credibility judgment in reaching his finding on this issue, and there was evidence to support it. See Commonwealth v. Scott, supra at 647. The defendant also relies on trial testimony by the clerk, which is not appropriately considered in evaluating the motion to suppress. Commonwealth v. Grandison, 433 Mass. 135, 137 (2001).
In light of the judge's fact findings on the motion to suppress, Officer Lanoue possessed specific, articulable facts giving rise to a reasonable suspicion that the individual driving the van in question was intoxicated. He was entitled to rely on the information provided by the clerk, who was a named and identified witness speaking in person based on his own personal observations. See Commonwealth v. Love, 56 Mass. App. Ct. 229, 231-234 (2002). The clerk gave a detailed description of the van and the direction in which it went, as well as behavior by the driver that could warrant suspicion of intoxication. Officer Lanoue's observations corresponded with the information given by the clerk; this corroboration adds to the reliability of the clerk's tip. See Commonwealth v. Lyons, supra at 20. We therefore discern no error in the motion judge's ruling.
Given our resolution of the issue of reasonable suspicion, we need not reach the Commonwealth's alternative position that the stop was an exercise of the police's 'community caretaking functions.' Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738-739 (1998), S. C., 428 Mass. 760 (1999), quoting from Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.), Clerk