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SJC-12134

                  COMMONWEALTH   vs.   BRUNO PINTO.



       Suffolk.      November 9, 2016. - January 23, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Firearms. Constitutional Law, Search and seizure, Investigatory
     stop, Reasonable suspicion. Search and Seizure, Motor
     vehicle, Reasonable suspicion, Threshold police inquiry.
     Threshold Police Inquiry.



     Complaints received and sworn to in the Central Division of
the Boston Municipal Court Department on April 25, 2013, and
June 6, 2013.

     A pretrial motion to suppress evidence was heard by Eleanor
C. Sinnott, J., and the cases were tried before her.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
     Amanda Teo, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.   A jury convicted the defendant, Bruno Pinto, on

two counts of unlawful possession of a loaded firearm, G. L.
                                                                     2


c. 269, § 10 (n), and one count of possession of a firearm

without a license, G. L. c. 269, § 10 (a).1,2

     The defendant's sole argument on appeal is that the search

of his vehicle was illegal because the Commonwealth failed to

demonstrate the police had reasonable suspicion to conduct an

investigatory stop.     We agree, and therefore, we reverse the

convictions and the order denying the motion to suppress the

fruits of that search.

     1.   Background.   We summarize the facts found by the motion

judge, supplemented by uncontested testimony from the

suppression hearing.     Commonwealth v. Johnson, 461 Mass. 44, 45-

46 (2011).

     a.   The stop.    While on uniformed patrol in the South

Boston section of Boston, Officers Kluziak and Fonseca of the

Boston police department received a radio broadcast informing

them to be on the lookout for a white Infiniti motor vehicle




     1
       He was also convicted of possession of ammunition without
a firearms identification (FID) card, G. L. c. 269, § 10 (h).
That conviction was set aside at the request of the
Commonwealth.
     2
       The defendant was also charged with assault and battery,
G. L. c. 265, § 13A; and malicious destruction of property
valued over $250, G. L. c. 266, § 127. The Commonwealth nol
prossed these charges. The defendant also received a civil
citation for failing to have his motor vehicle inspected, G. L.
c. 90, §§ 7A, 7V; he was found not responsible.
                                                                        3


with Massachusetts license plate number "FF720."3   According to

the broadcast, someone connected with the vehicle was wanted for

an alleged domestic assault and battery.    The broadcast also

advised that the person might be in possession of two firearms

and might be heading towards his mother's house on Orton Marotta

Way.

       Approximately two hours after the broadcast, the officers

encountered a white Infiniti with license plate number "FF720"

in the area of Orton Marotta Way and stopped it on St. Casimir

Street.    Kluziak ordered both individuals in the vehicle to

place their hands in view for safety reasons.   Both the

defendant, who was the driver, and the passenger complied.        The

defendant initially put his hands on the steering wheel, but

then he moved his left hand downward so that Kluziak could not

see it.    As a result, Kluziak ordered the defendant to get out

of the vehicle.

       Once the defendant was out of the vehicle, Kluziak

conducted a patfrisk of him, which revealed no weapon.      The

officer then conducted a search of the immediate area where the

defendant had been sitting in the vehicle and found a firearm

beneath the driver's seat.    The defendant was placed under

arrest, and the police conducted an inventory search of the

       3
       The original broadcast only stated that the license plate
began with "FF," but the officers received the complete number
before encountering the defendant.
                                                                    4


defendant's entire vehicle.    More incriminating evidence was

discovered during this search.

    b.   The motion hearing.   Kluziak, the only witness at the

suppression hearing, initially testified that he believed that

the radio broadcast occurred after the alleged victim of the

alleged domestic assault mentioned in the broadcast had come

into a police station and reported the information.    The motion

judge, crediting this testimony, made oral findings that the

alleged victim had come into the station.    Immediately after the

judge concluded her findings, defense counsel requested

clarification because he did not "believe there was ever any

testimony that someone came into a police station."   The judge

then asked Kluziak, who was still in the court room, whether he

had testified that the victim had come into the police station.

Kluziak initially responded that he did not believe he had so

testified and that he was unaware how the crime was reported.

When pressed by the judge further, he gave an equivocal answer.

    In response, the judge decided to "strike all of the

findings, regarding the two individuals that came to the station

or that [a domestic assault and battery] was reported that way."

The judge acknowledged that the lack of information regarding

the reason for the radio broadcast weakened the Commonwealth's

case, but nevertheless found that there was reasonable suspicion

for the stop because the police independently corroborated the
                                                                      5


broadcast's prediction that the vehicle would be heading in the

direction of the defendant's mother's house on Orton Marotta

Way.    The judge accordingly denied the motion to suppress.

       2.   Discussion.   When reviewing the denial of a motion to

suppress, this court accepts "the judge's subsidiary findings of

fact absent clear error and leave[s] to the judge the

responsibility of determining the weight and credibility to be

given oral testimony presented at the motion hearing."

Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting

Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).      "We

conduct an independent review of the judge's application of

constitutional principles to the facts found."      Commonwealth v.

Hoose, 467 Mass. 395, 400 (2014).      With the exception of the

finding that the vehicle was heading in the direction of the

defendant's mother's house, discussed infra, we accept the

motion judge's findings of fact as supported by the record,

including her decision to strike all testimony related to how

the domestic assault and battery was reported to the police.

       An investigatory stop is only justified if the police have

reasonable suspicion to conduct the stop.      Commonwealth v.

Phillips, 452 Mass. 617, 626 (2008).      Reasonable suspicion

exists when an officer, based on specific, articulable facts and

reasonable inferences therefrom, in light of the officer's

experience, has reasonable grounds to suspect "a person is
                                                                      6


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

(citation omitted).     Commonwealth v. Gomes, 453 Mass. 506, 511

(2009).

    This court has recognized that police officers can and do

"rely on flyers, bulletins, or radio information coming from

dispatchers and fellow officers in conducting a threshold

inquiry of a suspect."     Commonwealth v. Riggieri, 438 Mass. 613,

616 (2003).     "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. Lopes, 455 Mass. 147, 155 (2009).     Here, the

broadcast contained sufficient particularity regarding the

vehicle, identifying its color and make, as well as the license

plate number.     See Commonwealth v. Anderson, 461 Mass. 616, 622

(2012).

    "To establish that the transmitted information bears

adequate indicia of reliability, the Commonwealth must 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 Commonwealth v. Upton, 394 Mass. 363, 374-375
                                                                     7


(1985).     "Because the standard is reasonable suspicion rather

than probable cause, a less rigorous showing in each of these

areas is permissible."     Commonwealth v. Depina, 456 Mass. 238,

243 (2010), quoting Commonwealth v. Lyons, 409 Mass. 16, 19

(1990).     Although independent police corroboration may "make up

for deficiencies in one or both of these factors" (citation

omitted), Depina, supra, "each element of the test must be

separately considered and satisfied or supplemented in some

way."   Upton, 394 Mass. at 376.

    Here, the Commonwealth satisfied neither the basis of

knowledge test nor the veracity test, and there was not

sufficient independent corroboration of the information in the

broadcast concerning a crime having been committed after the

judge struck the source of the radio broadcast from her

findings.

    As to the basis of knowledge, there was no evidence

indicating how the individual responsible for the radio

broadcast came to have the information about the defendant's

whereabouts.     See Commonwealth v. Fraser, 410 Mass. 541, 546

(1991).     The radio broadcast itself did not contain any details

that would suggest that the person providing the information had

firsthand knowledge of the alleged domestic incident.     Cf.

Depina, 456 Mass. at 243 (holding basis of knowledge test
                                                                      8


satisfied where dispatch was based on caller's indication that

she personally heard gunshots and saw suspect flee).

    The Commonwealth similarly failed to establish the veracity

of the radio broadcast.    To satisfy the veracity test, the

Commonwealth needs to show the source of information had either

a demonstrated history of reliability, Commonwealth v. Mubdi,

456 Mass. 385, 396-397 (2010), or the existence of

"circumstances assuring trustworthiness on the particular

occasion of the information's being furnished," 2 W.R. LaFave,

Search & Seizure § 3.3(c) (5th ed. 2012).     See Anderson, 461

Mass. at 625.

    Here, the record contained no evidence of the source

providing the information, so there could be "no evidence

regarding the [source's] past reliability or reputation for

honesty."    Anderson, 461 Mass. at 622.   See Depina, 456 Mass. at

243-244.    Nor did the radio broadcast itself provide any

indications of its veracity.    See Anderson, 461 Mass. at 624-625

(holding veracity test may be satisfied where anonymous caller

makes statements "comparable to an excited utterance").      In the

present case, the content of the radio broadcast was devoid of

any detail as to whether the information came from a declarant

in an excited state, whether it came from a percipient witness

to the abuse, or whether it bore any other similar indications

of trustworthiness.
                                                                     9


    Finally, the police did not provide adequate independent

corroboration to remedy the deficiencies under either test.        The

only police corroboration was that the defendant was in the

general vicinity of Orton Marotta Way and driving a vehicle that

matched the description given over the radio.    The motion

judge's conclusion that the radio broadcast was corroborated by

the fact that the vehicle was near the house of the defendant's

mother is not supported by the record.    To the contrary, no

evidence was presented that the police had information

independent of the radio broadcast that the mother lived on

Orton Marotta Way.

    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.     See Mubdi, 456 Mass. at

397-398; Lyons, 409 Mass. at 20-21.     Since the motion judge's

findings were devoid of the source of any information in the

radio broadcast, police observation of the defendant's vehicle

in the general area as predicted was not enough independent

corroboration to meet the reasonable suspicion standard.

    Conclusion.      The judgments of conviction are reversed and

the verdicts are set aside.     The order denying the motion to

suppress is reversed, and the case is remanded to the Boston
                                                                10


Municipal Court Department for further proceedings consistent

with this opinion.

                                   So ordered.
