COMMONWEALTH v. DASILVERIA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a bench trial, the defendant, Adamo Dasilveria, was found not guilty of operating a motor vehicle while under the influence of alcohol (OUI), third offense, but guilty of negligent operation of a motor vehicle. On appeal, the defendant argues that his motion to suppress should have been allowed because the stop of the automobile he was driving was based on unreliable 911 calls, and that the evidence at trial was insufficient to support his conviction. We affirm.

1. Motion to suppress. The evidence at the motion to suppress hearing consisted of the testimony of the arresting officer, who was a State police trooper, and the turret tape, which recorded the communications among two 911 callers,² the dispatcher, and the trooper. The motion judge's findings concerning the trooper's testimony, which are supported by the record and not challenged, were as follows. The trooper was dispatched to Route 24 to respond to a report of a vehicle driving erratically. There, he observed a blue Honda automobile being followed by a car with its hazard lights flashing. The Honda matched the description and the license plate that had been reported, and the car with the flashing lights was being driven by the citizen who had reported the erratic operation, a so-called “code 22 caller.” The trooper instructed the dispatcher to ask the second vehicle to “back off from the subject vehicle.” The trooper then pulled behind the Honda and “observed it travel for approximately 30 or so seconds.” It was “traveling in the right hand lane and crossing over into the breakdown lane and then crossing from the right travel lane into the left travel lane, without signaling․ [T]he car was swerving from lane to lane and changing speeds, prompting [the trooper] to activate his lights and siren to effect a stop of the vehicle.”

The motion judge found the code 22 caller to be reliable because the caller accurately described “the color, make and model of the Defendant's car, as well as the license plate,” and because the trooper corroborated the report of erratic operation. The motion judge also found that the trooper's observations provided “an independent basis for the stop.”

We need not resolve the defendant's claim that the 911 caller's tip was unreliable ³ because we agree with the motion judge that the trooper's observations of the defendant's operation provided a sufficient independent basis to conduct a traffic stop based on violations of the motor vehicle laws. See Commonwealth v. Larose, 483 Mass. 323, 326-334 (2019); Commonwealth v. Bartlett, 465 Mass. 112, 117 (2013). The motion to suppress was correctly denied.

2. Sufficiency of the evidence. At trial, the trooper testified consistently with his testimony at the motion hearing. He “observed the vehicle to be operating in a highly erratic manner. It was changing speeds erratically. It was in and out of its travel lane, leaving the right travel lane, entering the left without its directional, back into the right travel lane and then into the breakdown lane numerous times.” The defendant drove several hundred feet before reacting to the trooper's lights and sirens, “[t]hen, [he] abruptly put on -- applied [his] brakes and pulled into the breakdown lane haphazardly at a slight angle.” Based on the defendant's appearance, odor of alcohol, and behavior, the trooper formed the opinion that the defendant was intoxicated. All of these factors, cumulatively, were sufficient for the trial judge to find beyond a reasonable doubt that the defendant had been operating a motor vehicle negligently so as to endanger the public. See Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 219-220 (2019); Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369-370 (2019); Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379-380 (2017). “The fact that the [trial judge] ultimately did not convict the defendant of OUI does not preclude [his] consideration of the evidence of intoxication in considering the negligent operation charge.” Ross, supra at 380.

Judgment affirmed.

FOOTNOTES

2.   One of the callers apparently was reporting a different vehicle.

3.   We do note that although the code 22 caller was anonymous, the facts that he stayed with the defendant's vehicle until the trooper arrived and remained on the telephone with the dispatcher are strong indicia of reliability. See Commonwealth v. Manha, 479 Mass. 44, 46-48 (2018); Commonwealth v. Perez, 80 Mass. App. Ct. 271, 276-277 (2011).