COMMONWEALTH v. LEE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Benjamin J. Lee, appeals from his conviction of operating under the influence of intoxicating liquor (OUI).² See G. L. c. 90, § 24 (1) (a) (1). He contends that the judge erred by denying his motion to suppress evidence obtained during a traffic stop, because an informant's tip was not sufficiently reliable to provide reasonable suspicion for the stop. We affirm.

Background. We summarize the facts as found by the motion judge, supplemented by facts in the record that are consistent with his findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). At about 2:30 a.m. on July 16, 2017, Officer Justin Bonina of the Marlboro Police Department received a dispatch call reporting an erratic operator. The dispatch was based on information provided by an anonymous 911 caller. The caller reported that he had seen a drunk driver, who left a bar, backed into the wall of the bar, and drove away. The caller said that the vehicle was a silver Chevy Equinox, provided the license plate number, and described the driver as a five foot ten inch or five foot eleven inch white male wearing a blue shirt and a hat. The vehicle had damage to the right taillight. The caller also provided the vehicle's direction of travel. The officer found the address to which the plate was registered, 15 Ashley Lane, a location which was in the direction that, according to the caller, the car had headed when it left the bar.

Officer Bonina drove towards 15 Ashley Lane, arriving at the residence roughly three minutes after hearing the dispatch. Finding no car in the driveway, Officer Bonina started to drive away.³ As he did so, he saw a silver Chevy Equinox pull onto Ashley Lane, coming from the direction of travel described.⁴ Officer Bonina confirmed that the license plate matched that reported by the anonymous caller and initiated the stop by turning on his blue lights and pulling the car over.

Discussion. “In general, 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 [the judge's] ultimate findings and conclusions of law.” Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). Where a defendant has filed a motion to suppress evidence obtained as a result of a traffic stop, “the Commonwealth bears the burden to prove that the police had reasonable suspicion, before initiating the stop that ‘a person has committed, is committing or about to commit a crime.’ ” Commonwealth v. Walker, 443 Mass. 867, 872 (2005), quoting Commonwealth v. Comita, 441 Mass. 86, 91 (2004). “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. Pinto, 476 Mass. 361, 364 (2017), quoting Commonwealth v. Lopes, 455 Mass. 147, 155 (2009). The defendant acknowledges that the Commonwealth proved the particularity prong. However, he contends that the Commonwealth failed to prove the basis of knowledge or reliability of the anonymous caller.

The information provided by an anonymous caller is evaluated under the Aguilar-Spinelli two-prong test, which requires the Commonwealth to “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).” Lopes, 455 Mass. at 155-156. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). “[E]ach element of the [Aguilar-Spinelli] test must be separately considered and satisfied or supplemented in some way.” Commonwealth v. Upton, 394 Mass. 363, 376 (1985). “[I]ndependent police corroboration can make up for deficiencies” in either or both prongs of the test.” Id. “Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible.” Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).

“An eyewitness's report to police of ․ recent, firsthand observation satisfies the basis of knowledge prong.” Commonwealth v. Depina, 456 Mass. 238, 243 (2010). The motion judge found that the caller was an eyewitness. That finding was fully supported by the evidence. The judge found that the caller provided a clear description of the defendant, the defendant's car, its registration, the damage the car had sustained, and the direction of travel. The motion judge also reasoned that the caller's response on the 911 call that “I couldn't get a really good look at [the car],” “suggests the caller was making personal observations of the driver in real time.” The judge did not err in drawing this inference. When a 911 caller provides a detailed description, the detail is “sufficient to establish that the information derived from the personal observations of the 911 caller.” Commonwealth v. Depiero, 473 Mass. 450, 454 (2016). “[T]he basis of the informant's knowledge appeared within the tip itself.” Commonwealth v. Lubiejewski, 49 Mass. App. Ct. 212, 214 (2000). See Depiero, supra at 454-455.

“The veracity test is more difficult for the Commonwealth to satisfy where, as here, the caller was anonymous.” Commonwealth v. Anderson, 461 Mass. 616, 622, cert. denied, 133 S. Ct. 433 (2012). Reliability may be established, however, “through independent corroboration by police observation or investigation of the details of the information provided by the caller,” if gleaned before the stop is initiated. Depiero, 473 Mass. at 456, quoting Anderson, supra at 623. Here the officer was able to verify the description of the make and model of the car. In addition to these “ ‘innocent,’ or easily obtainable [details],” Depiero, supra at 457, the officer was able to run the license plate, go to the address at which the car was registered, and meet the car as it arrived, driving from the direction of the bar.⁵ As the motion judge found, “[t]his type of detailed and corroborated information went beyond innocent and easily obtainable information and clearly established that the caller was credible or that his information was reliable.” See id.

Finally, the defendant asserts that the information supplied by the tip was insufficient to support a reasonable suspicion that the driver was driving while intoxicated, and the stop was therefore improper. See Depiero, 473 Mass. at 456-457. The tipster called to report a “drunk driver” who had left a bar, driven into a wall, and left. This report was sufficient to establish reasonable suspicion of either operating under the influence or negligent operation of a motor vehicle. See G. L. c. 90, § 24 (1) (a) (1), (2) (a). See also Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 219 (2019).

The officer was acting on a reliable tip based on firsthand knowledge that the defendant left a bar and backed his vehicle into a building in a parking lot accessible to the public, and continued to drive it onto a public street. The officer had reasonable suspicion to believe that the defendant had committed a crime, and permissibly conducted the stop.⁶

Judgment affirmed.

FOOTNOTES

2.   A complaint for leaving the scene of an accident causing property damage was dismissed. In a jury waived proceeding, the judge found the defendant guilty of operating under the influence of alcohol, second offense.

3.   There is some dispute regarding whether Officer Bonina turned his car around at this point, or if he did so after seeing the defendant's car turn onto Ashley Lane. The defendant contends that the motion judge described the timing of the turn inaccurately. We need not discuss the timing of the turn, because this fact is immaterial to the determination of the propriety of the stop.

4.   The judge also took judicial notice of the distance between the bar and Ashley Lane as the type of fact that is beyond dispute and readily ascertainable. See Mass. G. Evid. § 201(b)(2) (2020). The defendant does not contest the finding on appeal.

5.   In this respect, this case is distinguishable from Lyons, 409 Mass. at 20-21, upon which the defendant relies. In Lyons, there was no corroboration of any fact indicating that there had been a drug transaction. Id. at 21 & n.5. Here, the fact that the car came from the direction of the bar within the time period the judge found was expected, corroborates one aspect of the tip, namely that the defendant had been at that bar.

6.   The defendant also contends that the stop was not justified by the emergency doctrine. See Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 930 (1990). As the stop was otherwise lawful, it is not necessary to determine whether it would have been justified under the emergency doctrine.