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SJC-12342

               COMMONWEALTH   vs.   ANTHONY F. MANHA.



      Suffolk.      December 5, 2017. - February 28, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Constitutional Law, Search and seizure, Investigatory stop,
     Reasonable suspicion. Search and Seizure, Reasonable
     suspicion, Threshold police inquiry, Protective sweep.
     Threshold Police Inquiry.



      Complaint received and sworn to in the South Boston
Division of the Boston Municipal Court Department on July 10,
2012.

     A pretrial motion to suppress evidence was heard by Ernest
L. Sarason, Jr., J., and following transfer to the Central
Division of the Boston Municipal Court Department, the case was
tried before Tracy-Lee Lyons, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Leah Hook for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
                                                                    2


    BUDD, J.    Here we address the authority of the police to

stop and perform a Terry-type search of a motor vehicle after an

anonymous 911 caller reported that the driver of that vehicle

threatened the caller, a fellow motorist, with a gun.    The

driver, defendant Anthony F. Manha, appeals from a conviction of

assault with a dangerous weapon.    The Appeals Court affirmed in

an unpublished memorandum and order pursuant to its rule 1:28.

Commonwealth v. Manha, 91 Mass. App. Ct. 1105 (2017).    We

granted the defendant's application for further appellate

review.   He claims that the police lacked probable cause to stop

him and that, therefore, the pellet gun found subsequently in

his vehicle should have been suppressed.    We conclude that, in

these circumstances, the information that the police possessed

gave them reasonable suspicion to stop and perform a protective

sweep of the defendant's motor vehicle, and that, given the

officers' safety concerns, reasonable suspicion was all that was

required.   We therefore affirm the conviction.

    Background.     We present the facts as found by the motion

judge.    On July 9, 2012, while on patrol, Trooper John Guest of

the State police received a radio call of a then-ongoing 911

call from a motorist regarding a road rage incident.    According

to the 911 caller, an individual in another motor vehicle had

pointed a gun at her as she traveled southbound on Route 93 in

Boston.   She described the gunman as a white male in his forties
                                                                     3


who was wearing glasses.    She further provided a description of

his vehicle, a gray Jeep Cherokee, along with its registration

number, location, and direction of travel.

    Based on this information, Guest located the vehicle and

followed it for a few miles (observing no traffic violations or

other criminal activity) before signaling to the driver to stop.

Guest and two other troopers who had since arrived drew their

weapons and ordered the driver, the defendant, to get out of the

vehicle.   A patfrisk of the defendant's person revealed no

weapons.   The troopers placed the defendant in a police vehicle

and performed a protective sweep of the Jeep.    In the rear area

of the vehicle they discovered a black case.     Inside they found

a pellet gun in the shape of a hand gun.

    Discussion.     In our review of the denial of the defendant's

motion to suppress, we accept the motion judge's factual

findings unless clearly erroneous, and independently apply the

law to those findings to determine whether actions of the police

were constitutionally justified.    See Commonwealth v. Molina,

467 Mass. 65, 72 (2014); Commonwealth v. Wilson, 441 Mass. 390,

393 (2004).

    1.     Reasonable suspicion for stop.   To perform an

investigatory stop of a vehicle, the police require "reasonable

suspicion, based on specific, articulable facts and inferences

therefrom, that an occupant . . . had committed, was committing,
                                                                    4


or was about to commit a crime."   Commonwealth v. Anderson, 461

Mass. 616, 621, cert. denied, 568 U.S. 946 (2012), quoting

Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996).      In this

case, the caller reported that another motorist pointed a gun at

the caller while she was traveling on a busy highway.

    Where an officer receives an order to stop a vehicle based

on the information received via a police radio broadcast, the

Commonwealth must show the particularity of the vehicle's

description and indicia of reliability of the broadcast

information.   Anderson, 461 Mass. at 621.   Here, the broadcast

contained sufficient particularity of the defendant's vehicle's

description (including its make, model, color, and registration

number) and of the gender and age of the driver.    See

Commonwealth v. Depiero, 473 Mass. 450, 454 (2016) (motor

vehicle's make, color, and registration number); Anderson, supra

at 621 (motor vehicle type, color, and registration number, and

gender of occupants).

    To determine whether the transmitted information provided

by a 911 caller is sufficiently reliable to support reasonable

suspicion, we apply the two-pronged Aguilar-Spinelli test; that

is, we look to the caller's basis for knowledge as well as the

veracity of the source of the information.   Depiero, 473 Mass.

at 454.   See Spinelli v. United States, 393 U.S. 410 (1969);

Aguilar v. Texas, 378 U.S. 108 (1964).
                                                                      5


     In this case, the basis of knowledge test is satisfied

where the 911 caller reported her firsthand observations (and

was, in fact, the victim of the alleged assault).     See Anderson,

461 Mass. at 622; Commonwealth v. Alfonso A., 438 Mass. 372,

374-375 (2003).

     Establishing the veracity prong where an anonymous 911

caller is involved is less straightforward, as no evidence

regarding his or her past reliability or honesty typically will

be available.     Anderson, supra at 622.   See Commonwealth v.

Depina, 456 Mass. 238, 243-244 (2010) ("In all but the most

extraordinary circumstances, the Commonwealth will be unable to

demonstrate that an anonymous source has a prior history of

providing accurate information . . .").     Nevertheless, the

reliability of such a caller can be demonstrated in other ways.

     For example, "[w]e have . . . suggested that the

reliability of citizen informants who are identifiable, but may

not have been identified, is deserving of greater consideration

than that of truly anonymous sources."      Commonwealth v. Costa,

448 Mass. 510, 515 (2007).     The same is true for callers who are

aware that their calls are being recorded and that their

telephone numbers can be traced.1    Id. at 517.


     1
       We have previously declined to attribute veracity to all
anonymous 911 callers based upon the fact that current 911-call
technology allows identification of callers. Commonwealth v.
Depiero, 473 Mass. 450, 455 (2016). This is because it is the
                                                                    6


     Even where a 911 telephone call is anonymous, the

Commonwealth can still establish a caller's reliability "through

independent corroboration by police observation or investigation

of the details of the information provided by the caller" prior

to the stop being initiated.   Anderson, 461 Mass. at 623.

Additionally, the Commonwealth may establish the caller's

veracity by demonstrating that the caller "had just witnessed a

startling or shocking event, that the caller described the

event, and that the description of the event was made so quickly

in reaction to the event as reasonably to negate the possibility

that the caller was falsifying the description or was carrying

out a plan falsely to accuse another."   Id. at 624.

     Here, although the 911 caller testified at trial, she did

not testify at the hearing on the motion to suppress, and there

was no evidence provided regarding her identity or whether she

knew that she was identifiable to police.2   For this reason, we

must treat the caller as anonymous for the purposes of the

motion to suppress.   Nevertheless, a combination of factors made


caller's belief of anonymity, not his or her actual anonymity,
that will predict his or her behavior. Id. Where a caller
believes he or she is anonymous, the risk of being criminally
charged with false reporting will not deter dishonest reports.
Id.
     2
       Where, as here, a 911 caller is identifiable, introducing
evidence of that fact at the hearing on the motion to suppress
would aid the motion judge in assessing the caller's
reliability. See Commonwealth v. Gomes, 458 Mass. 1017, 1018
n.5 (2010).
                                                                       7


the call reliable under the reasonable suspicion analysis.       See

Depiero, 473 Mass. at 454, quoting Commonwealth v. Mubdi, 456

Mass. 385, 396 (2010) (Aguilar-Spinelli test requires "less

rigorous showing" where required standard is reasonable

suspicion rather than probable cause).

     First, the 911 caller was the alleged victim of the

assault, and stayed on the line while the information was

relayed to the trooper on patrol.   A 911 caller who is willing

to stay on the line after reporting a crime perpetrated against

her is likely willing to be identified.3   A caller who is making

a false report is less likely to prolong his or her exposure to

charges by remaining on the line with law enforcement.     Cf.

Anderson, 461 Mass. at 625 (discussing circumstances that make

call less likely to be false report).

     Second, the trooper was able to corroborate details

provided by the caller prior to the stop, including the make,

model, color, and registration number of the vehicle, and the

driver's race and gender.   See Costa, 448 Mass. at 518.    See

also Depiero, 473 Mass. at 457.


     3
       The Commonwealth argues that the caller was reliable
because she witnessed and quickly described a startling event.
See Commonwealth v. Anderson, 461 Mass. 616, 624, cert. denied,
568 U.S. 946 (2012). However, because no recording of the call
or other evidence of the caller's demeanor was presented at the
motion hearing, the motion judge could not make any findings
regarding the caller's demeanor or whether the caller's
statement was an excited utterance.
                                                                      8


     Finally, the caller reported that a fellow motorist pointed

what appeared to be a firearm at her.     "The gravity of the crime

and the present danger of the circumstances may be considered in

the reasonable suspicion calculus."     Depina, 456 Mass. at 247.

Given the reported assault with a firearm, "the police would

have been remiss had they not conducted an investigative stop of

[the defendant's] vehicle."    Anderson, 461 Mass. at 625.   We

conclude that the police had reasonable suspicion to justify the

stop.

     2.    Seizure.   The defendant argues that upon being stopped

by the police, he was illegally arrested and, therefore, the

pellet gun subsequently recovered should have been suppressed.

This argument has no merit because the actions that the troopers

took prior to discovering the pellet gun did not constitute an

arrest.4

     Whether a stop is a seizure, requiring reasonable

suspicion, or an arrest, requiring probable cause, depends upon

the circumstances of each case.    See Commonwealth v. Willis, 415

Mass. 814, 815 (1993) (considering "the highly fact-based

question[]" whether stop was arrest).     Where a law enforcement

officer performs an investigatory stop, that officer's level of

intrusiveness must be in proportion to the officer's suspicion


     4
       The defendant does not claim error in the arrest that took
place after the pellet gun was discovered.
                                                                     9


or concern for safety.    Commonwealth v. Edwards, 476 Mass. 341,

347 (2017); Commonwealth v. Williams, 422 Mass. 111, 116 (1996);

J.A. Grasso & C.M. McEvoy, Suppression Matters Under

Massachusetts Law § 4-4 (2014).    If an officer exceeds the scope

of an investigatory stop, the seizure becomes an arrest.

Willis, supra at 819.    See Commonwealth v. Melo, 472 Mass. 278,

297-298 (2015) (discussing how police actions can cross line

from investigatory stop to arrest).

    In this case, Guest learned that a driver had pointed what

appeared to be a firearm at another motorist while traveling on

the highway.    Upon observing a vehicle that matched the

description he was given, he stopped the vehicle, and he, along

with other State troopers, drew their weapons, ordered the man

out of his automobile, and then placed him in a police vehicle.

    Given the possible danger to themselves and to the public,

each step the troopers took was a "reasonably prudent protective

measure[]."    Edwards, 476 Mass. at 347.   See Commonwealth v.

Limone, 460 Mass. 834, 841 (2011); Commonwealth v. Bostock, 450

Mass. 616, 621 (2008) (exit orders permitted in investigatory

stops where police are acting "on reasonable suspicion of

criminal activity"); Williams, 422 Mass. at 117 (drawing service

weapons permitted where officer safety at risk).    See also

Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001) (placing

suspect in police vehicle alone does not alone amount to arrest;
                                                                   10


it may do so where suspect detained for disproportionate period

of time); Commonwealth v. Torres, 433 Mass. 669, 675-676 (2001)

(patfrisk for weapons requires same standard as exit orders).

Taking appropriate precautions does not transform an

investigatory stop into an arrest.    Commonwealth v. Haskell, 438

Mass. 790, 794 (2003).   Commonwealth v. Alvarado, 427 Mass. 277,

284 (1998).

    3.   Protective sweep.    Finally, because the nature of the

suspected crime constituted an imminent threat to the safety of

the officers, the scope of the sweep of the defendant's vehicle

was reasonable and constitutionally justified.

    "It is settled . . . that, in appropriate circumstances, a

Terry type of search may extend into the interior of an

automobile so long as it is limited in scope to a protective

end."   Commonwealth v. Silva, 366 Mass. 402, 408 (1974).   See

Alvarado, 427 Mass. at 284.    "The issue as to what are the

permissible limits has to be decided on the facts of each case."

Silva, supra.

    In this case, the troopers had reason to believe not only

that the defendant possessed a gun, but that he pointed it at

another motorist on a busy highway.   Thus, upon making the motor

vehicle stop, the officers were "warranted in the belief that

the[ir] safety . . . or that of other persons was in danger,"

and therefore appropriately extended the protective sweep into
                                                                    11


the defendant's automobile (citations omitted).   See

Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997).      Cf.

Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498

U.S. 951 (1990) (mere possession of handgun insufficient to give

rise to reasonable suspicion of illegal activity).

    Even where a protective sweep is permissible, it must be

limited in scope.   A protective sweep of a vehicle "'must be

confined to the area from which the suspect might gain

possession of a weapon,' either because he is still within the

vehicle or because he is likely to return to the vehicle at the

conclusion of the officer's inquiry."   Commonwealth v. Daniel,

464 Mass. 746, 752 (2013), quoting Commonwealth v. Almeida, 373

Mass. 266, 272 (1977), S.C., 381 Mass. 420 (1980).      This area

includes the passenger compartment of a vehicle, as long as

police have "a reasonable belief based on 'specific and

articulable facts which . . . warrant' the officer in believing

that the suspect is dangerous."   Commonwealth v. Sumerlin, 393

Mass. 127, 129 (1984), cert. denied, 469 U.S. 1193 (1985),

quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983).

    A protective sweep of a passenger compartment may encompass

areas that are "generally 'reachable without exiting the

vehicle' . . . including areas that are 'hatches,' or rear

storage areas."   United States v. Orth, 873 F.3d 349, 358-359

(1st Cir. 2017), quoting United States v. Allen, 469 F.3d 11, 15
                                                                    12


(1st Cir. 2006), cert. denied, 552 U.S. 827 (2007).5    Here, the

pellet gun was found in the rear area of the vehicle.    Taking

into account the report of a firearm and the safety threat, the

troopers were justified in performing a protective sweep of the

entire passenger compartment, including the rear of the vehicle.

See Orth, supra.

     Where the police have reasonable suspicion that someone has

a gun and has threatened another with it, the protective sweep

may also extend to closed containers found within the vehicle's

passenger compartment.   Long, 463 U.S. at 1050-1051.   Searchable

containers may include "glove compartments, consoles, or other

receptacles . . . as well as luggage, boxes, bags, clothing, and

the like."   Orth, 873 F.3d at 359, quoting New York v. Belton,

453 U.S. 454, 460-461 n.4 (1981), overruled on other grounds by

Davis v. United States, 564 U.S. 229 (2011).   We have held that

a protective Terry sweep may include containers where

"particular features of the container, readily observable by the


     5
       In Allen, the United States Court of Appeals for the First
Circuit noted that in the case of Terry-type protective sweeps
"post facto scope of search inquiries into the actual
reachability of certain areas in a vehicle's passenger
compartment are squarely foreclosed." United States v. Allen,
469 F.3d 11, 15 (1st Cir. 2006), cert. denied, 552 U.S. 827
(2007). Instead, the question is whether the search area was
"generally 'reachable without exiting the vehicle, without
regard to the likelihood in the particular case that such a
reaching was possible'" (emphasis added). Id., quoting United
States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994), cert.
denied, 514 U.S. 1074 (1995).
                                                                    13


police, may make it apparent that nothing short of opening the

container will suffice to address the officer's reasonable

suspicions."   Commonwealth v. Pagan, 440 Mass. 62, 72 (2003).

See Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010)

("If safety concerns necessitate doing so, police may open a

closed container").

    Here, the troopers were justified in opening a case that

reasonably could have contained a weapon as a part of the

protective sweep.     See Silva, 366 Mass. at 410 (finding Terry-

type search illegal not because container was opened, but

because it was so small that police could not have conceivably

believed it contained weapon); Long, 463 U.S. at 1050-1051

(search of leather pouch allowed as it could have contained

weapon).   Considering the troopers' reasonable suspicion and

their immediate concern for their own and the public's safety,

the protective sweep performed in this case was permissible.

    Conclusion.     We conclude that the motion judge properly

denied the motion to suppress.    Given the information that the

police had about the alleged assault committed by the defendant,

they had reasonable, articulable suspicion to stop the

defendant's motor vehicle and perform a protective sweep of the

vehicle.   Moreover, given the safety concerns of the police, the

scope of the protective sweep was constitutionally justified.

                                     Judgment affirmed.
