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14-P-1469                                                Appeals Court

                   COMMONWEALTH   vs.   GOVANNY RAMOS.


                             No. 14-P-1469.

            Suffolk.      March 16, 2015. - August 14, 2015.

               Present:   Katzmann, Milkey, & Agnes, JJ.


Search and Seizure, Motor vehicle, Reasonable suspicion.
     Constitutional Law, Search and seizure, Reasonable
     suspicion. Registrar of Motor Vehicles, Records.
     Practice, Criminal, Motion to suppress, Record. Motor
     Vehicle, Receiving stolen motor vehicle.



     Complaint received and sworn to in the Chelsea Division of
the District Court Department on October 17, 2013.

     A pretrial motion to suppress evidence was heard by
D. Dunbar Livingston, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Megan Ruebsamen for the defendant.
                                                                        2


    KATZMANN, J.     This appeal by the Commonwealth poses the

questions whether police officers may reasonably rely on

information from the Registry of Motor Vehicles (RMV) database

concerning reports of stolen vehicles and whether a District

Court judge erred in employing the Aguilar-Spinelli test in

allowing the defendant's motion to suppress.       Aguilar v. Texas,

378 U.S. 108 (1964).     Spinelli v. United States, 393 U.S. 410

(1969).   See Commonwealth v. Lopes, 455 Mass. 147, 155-156

(2009) (Lopes).    We reverse.

    Background.     After an evidentiary hearing, a District Court

judge found the following.       On October 17, 2013, State Trooper

Edmund Hartwell was assigned alone and in uniform to a cruiser

patrol.   That morning, Hartwell was parked on Everett Avenue,

opposite Chelsea High School, observing traffic.       While parked,

Hartwell saw a red sport utility vehicle (SUV) go past.

Hartwell noticed that the driver, who was later identified as

the defendant, Govanny Ramos, was not wearing a seatbelt and

appeared to have his hands in his lap.       Hartwell "ran" the

registration of the SUV using his mobile data terminal (MDT) to

query the RMV database.    The vehicle "came back stolen."        The

description of the motor vehicle in the RMV database matched the

SUV Hartwell observed.    Hartwell followed the SUV and contacted

the dispatch center at the State police headquarters in Danvers

to get confirmation that the SUV was stolen.       The dispatch
                                                                    3


center confirmed that the SUV with the particular registration

plate and description was reported as stolen.

    Hartwell followed the SUV until it turned into a driveway

to a residential building on Addison Street and stopped.    He

activated his lights and siren when the SUV began to turn into

the driveway, and then pulled partially into the driveway behind

the SUV.   There was a fence in front of and along the driver's

side of the SUV.   The defendant opened the driver's side door

and got out of the SUV, tossing a small plastic bag with a green

leafy substance on the ground.    Hartwell directed the defendant

to come towards him, and the defendant complied.    Hartwell told

the defendant that he was going to place him in custody to

discuss the situation; he then handcuffed the defendant.

Hartwell advised the defendant of his Miranda rights, which the

defendant said he understood.    While in custody at the scene,

the defendant explained to Hartwell that he had borrowed the

vehicle from a friend, Joel Rodriguez, and that the vehicle

belonged to Rodriguez's girlfriend.    Hartwell then placed the

defendant under arrest.   The defendant was charged in District

Court with unlicensed operation of a motor vehicle, in violation

of G. L. c. 90, § 10, and receiving a stolen motor vehicle,

subsequent offense, in violation of G. L. c. 266, § 28(a).

    Claiming violation of the rights guaranteed under the

Fourth Amendment to the United States Constitution and art. 14
                                                                      4


of the Massachusetts Declaration of Rights in protection against

unreasonable searches and seizures, the defendant moved to

suppress evidence that resulted from the stop and warrantless

search by the State police including, but not limited to,

statements made by the defendant, any actions of the defendant,

any observations of police officers, and any other evidence that

resulted from his seizure and subsequent search.   A District

Court judge, citing Lopes, 455 Mass. at 154-156, allowed the

defendant's motion and found that the stop of the defendant's

vehicle was not justified because the Commonwealth failed to

prove that the information Hartwell received from the RMV

database satisfied the familiar Aguilar-Spinelli test

"demonstrating a sufficient 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)."      See

Lopes, supra at 155-156.   The Commonwealth then filed an

application for leave to appeal, which a single justice of the

Supreme Judicial Court allowed.   See Mass.R.Crim.P. 15(a)(2), as

appearing in 422 Mass. 1501 (1996).   In this interlocutory

appeal, the Commonwealth contends that the judge erred by

applying the Aguilar-Spinelli test and allowing the defendant's

motion to suppress.   We agree.
                                                                    5


    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 [the

judge's] ultimate findings and conclusions of law.'"    Lopes, 455

Mass. at 153, quoting from Commonwealth v. Scott, 440 Mass. 642,

646 (2004).

    Police officers may make a traffic stop when they have "a

reasonable, articulable suspicion that a person in a vehicle has

committed, is committing, or is about to commit a crime."

Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616, cert.

denied, 132 S. Ct. 327 (2011).   This suspicion "must be based on

specific, articulable facts and reasonable inferences drawn

therefrom."   Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 651

(2006).   Our analysis is ultimately a practical one.   See Lopes,

455 Mass. at 158-159.   In this case, Hartwell used his MDT to

learn that the SUV the defendant was driving was listed as

stolen in the RMV database.   He saw that the description of the

SUV in the database matched the SUV Hartwell observed.     He

pursued the inquiry further by contacting the dispatch center,

which confirmed that the SUV with the particular registration

plate and description was reported as stolen.   Whether Hartwell

had reasonable suspicion based on the stolen motor vehicle

record in the RMV database depends on whether it was reasonable

for Hartwell to rely on the information that the SUV was stolen.
                                                                   6


     The defendant argues that the information provided by the

RMV database and the dispatch center amounts to information from

an anonymous informant that requires a further showing of

reliability and credibility under the Aguilar-Spinelli test

before it can be relied on by the police.   See Commonwealth v.

Costa, 448 Mass. 510, 514-515 (2007).   However, because

Hartwell's stop was based on information gained from the RMV

database through his MDT and not from information gained from an

informant, "the usual rule applies that upholds an arrest on

otherwise reliable information . . . ."   Commonwealth v.

Wilkerson, 436 Mass. 137, 141 (2002) (Wilkerson).1

     Here, the RMV records that formed the basis of Hartwell's

reasonable suspicion have sufficient indicia of reliability on

which to predicate a traffic stop.   See Wilkerson, 436 Mass. at

141-142.   Indeed, RMV records are generally considered reliable.

See ibid. (holding that it was reasonable for police officer to

rely on RMV record when making arrest for motor vehicle

     1
       The defendant argues that the "governing rule for cases
involving police broadcasts . . . is that the Commonwealth is
responsible for presenting evidence that shows the reliability
of the underlying information (i.e., the police dispatch and RMV
record) . . . ." See Lopes, 455 Mass. at 155-156. Here,
however, the rule regarding radio broadcasts is inapplicable, as
the officer was not relying on information in a radio broadcast
concerning a description of a possible crime and of a motor
vehicle where the transmitted information required adequate
indicia of reliability; rather, the officer sought information
regarding a specific license plate number from the RMV, whose
information already bore sufficient indicia of reliability. See
discussion infra.
                                                                      7


offense).    The court in Wilkerson concluded that the police had

"no basis to question" the results of the query to the RMV "or

to verify it independently."    Id. at 142.    In addition, we note

that the law promotes the reliability of reports of stolen

vehicles by punishing false reports and requiring the owner of a

stolen motor vehicle to sign and submit to the police "a

statement under the penalties of perjury . . . relating to the

theft or misappropriation of the vehicle."     G. L. c. 266, § 29,

as appearing in St. 1980, c. 463, § 4.    See G. L. c. 268, § 39.

Furthermore, anyone who makes a written statement to the RMV

alleging the theft of a motor vehicle does so on a signed form

that gives printed notice that false statements are punishable

under penalty of perjury, subjecting the individual to criminal

liability.   G. L. c. 268, § 39.   See Commonwealth v. Kelly, 69

Mass. App. Ct. 751, 753-754 (2007) (describing stolen vehicle

report form).   Because false reports of motor vehicles are

punished by statute, it is both reasonable and practical to

assume that reports of stolen vehicles to the RMV are reliable.

    Our conclusion is aligned with the foundation of the

exclusionary rule -- an interest in deterring unlawful police

conduct.    See Wilkerson, 436 Mass. at 142.   This "interest . . .

is not implicated where police rely on records of an independent

State agency, such as the registry [RMV], to make an otherwise

proper arrest."   Ibid.   It was reasonable for Hartwell to rely
                                                                   8


on the information from the RMV database because it had

sufficient indicia of reliability and, thus, was sufficient to

give Hartwell reasonable suspicion to make the traffic stop.

Because the stop of the defendant was supported by reasonable

suspicion based on reliable information, the stop was justified

and did not violate the defendant's rights under the Declaration

of Rights, art. 14, or the Fourth Amendment.

                                   Order allowing motion to
                                     suppress reversed.
