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13-P-572                                                Appeals Court

                COMMONWEALTH   vs.   JOHN C. DEPIERO.


                            No. 13-P-572.

     Middlesex.       January 10, 2014. - February 19, 2015.

           Present:   Kantrowitz, Vuono, & Sullivan, JJ.


Constitutional Law, Investigatory stop, Reasonable suspicion.
     Search and Seizure, Reasonable suspicion. Motor Vehicle,
     Operating under the influence. Practice, Criminal, Motion
     to suppress.


     Complaint received and sworn to in the Cambridge Division
of the District Court Department on August 11, 2011.

     A pretrial motion to suppress evidence was heard by
Antoinette E. McLean Leoney, J., and the case was heard by
Joseph W. Jennings, III, J.


     Jane D. Prince (Randy S. Chapman with her) for the
defendant.
     Radu Brestyan, Assistant District Attorney, for the
Commonwealth.


    VUONO, J.     Following a jury-waived trial, the defendant was

convicted of operating a motor vehicle while under the influence

of alcohol (second offense).    On appeal, he principally contends

that the motion judge erred in denying his motion to suppress
                                                                    2


evidence obtained during what he claims was an unlawful

investigatory stop of his automobile.1   The stop was prompted by

an anonymous telephone call concerning a "drunk" driver.   We

conclude that the motion to suppress was properly denied and we

affirm the judgment.2



     1
       The defendant also claims that the motion judge
erroneously admitted in evidence a "turret" tape recording
containing a portion of the 911 call and other police
communications. This issue requires little discussion. As an
initial matter, as the judge observed, "[t]he law of evidence
does not apply with full force at motion to suppress hearings."
Mass. G. Evid. § 1101(d) (2014). And, in any event, the
officer's testimony that he was familiar with the procedure
followed by the Massachusetts State police regarding incoming
911 calls and recognized the recording to be that of a 911
emergency call provided a sufficient foundation to authenticate
the recording. See Commonwealth v. Siny Van Tran, 460 Mass.
535, 546 (2011). There was no error.
     2
       We previously decided this appeal in an unpublished
memorandum and order pursuant to our rule 1:28, affirming the
denial of the defendant's motion to suppress. See Commonwealth
v. Depiero, 85 Mass. App. Ct. 1125 (2014). We concluded that
the stop of the defendant's vehicle was supported by reasonable
suspicion because the officer (Trooper Dwyer) who made the stop
was aware that the defendant's license was subject to curfew
restrictions and had observed the defendant driving his motor
vehicle in violation of the curfew. In reaching our conclusion
we relied on a "turret" tape recording, which was introduced in
evidence. On that recording, the dispatcher stated that there
were hour restrictions on the defendant's driver's license.
However, contrary to the argument the Commonwealth presented in
its brief and at oral argument, the tape recording does not
establish that the information pertaining to the license
restriction was broadcast prior to the stop as opposed to during
or after the stop. Because only facts that were known to the
officer at the time of the stop may be considered, the fact that
the defendant's license was restricted could not provide a
justification for the stop. See Commonwealth v. Anderson, 461
Mass. 616, 623 (2012).
                                                                    3


     Facts.3   At approximately 2:00 A.M. on August 11, 2011, an

unidentified man made a 911 telephone call which was received by

a State police emergency operator in Framingham.   After

informing the caller that the 911 line is recorded, the operator

asked the caller, "[W]hat is your emergency?"   The caller

replied, "Just a call, you got a drunk driver on Memorial Drive

near Harvard Square and I've got his license number, but he's

swerving all over the road."   The operator immediately

transferred the call to the State police barracks in Brighton.

The caller stayed on the line and then spoke to a dispatcher who

identified himself as Trooper Usom.   The motion judge found that

the caller provided the color, make, and license plate number of

the vehicle in question to Trooper Usom.4   Trooper Usom then



     We commend the defendant for bringing this issue to our
attention by filing a petition for rehearing. We also express
our disappointment that the Commonwealth has, as the defendant
asserts, "muddled" the record. See generally Commonwealth v.
Pagan, 73 Mass. App. Ct. 369, 375-376 (2008). The appeal will
not be reheard but in response to the petition and a letter
submitted by the Commonwealth, we have withdrawn our previously
issued memorandum and order, and this opinion follows that
action.
     3
       The summary of facts is based on the motion judge's
findings, supplemented with undisputed testimony provided by
Massachusetts State police Trooper John Dwyer, the
Commonwealth's sole witness at the hearing. See Commonwealth v.
Torres, 433 Mass. 669, 670 (2001). The judge explicitly
credited Trooper Dwyer's testimony.
     4
       These findings were based on testimony from Trooper Dwyer;
the Commonwealth did not introduce a recording of the
conversation between the caller and Trooper Usom. According to
                                                                   4


initiated the following broadcast:   "H5, H5 patrols, one call

erratic operation Memorial Drive westbound passing the Weeks

Footbridge on MA PC 7785AN . . . [t]hat vehicle comes out of

Belmont, the owner is on probation for drunk driving."   In a

subsequent broadcast, Trooper Usom provided the address for the

registered owner of the motor vehicle.5

     State police Trooper John Dwyer was on patrol on Route 2

east of Arlington when he heard Trooper Usom's broadcast.   He

responded by driving to Belmont and arrived in the vicinity of

the defendant's home within five minutes.   He saw the vehicle

described by the broadcast pass him and pull into the driveway

at 207 Cross Street and he observed that it was being driven in

a normal manner.   After the defendant pulled into the driveway,

Trooper Dwyer parked his cruiser about five feet behind the

defendant's vehicle and activated the cruiser's emergency

lights.6   The defendant stepped out of his vehicle and nearly



Trooper Dwyer, the Brighton barracks does not record 911 calls.
Trooper Usom did not testify at the suppression hearing.
     5
       The judge found that Trooper Dwyer conducted his own
investigation and, as a result, obtained the defendant's address
in Belmont. This finding of fact appears inconsistent with the
radio broadcast, which indicates that Trooper Usom provided the
address. As nothing turns on this discrepancy, we ignore it.
     6
       The parties do not dispute that the stop occurred when
Trooper Dwyer activated his cruiser's lights. See Commonwealth
v. Smigliano, 427 Mass. 490, 491-492 (1998) (activation of
emergency lights constitutes a seizure requiring justification
because "a reasonable person, on the activation of a police
                                                                    5


fell to the ground.   When Trooper Dwyer approached the defendant

he noticed that the defendant's hair was "wild and unkept [sic]"

and detected an odor of alcohol.    Upon request, the defendant

produced his license and registration without difficulty.      In

response to Trooper Dwyer's questions, the defendant said that

he was coming from Cambridge and had driven on Soldier's Field

Road and not Memorial Drive.   He also admitted that he had

consumed one to two drinks.    The defendant agreed to perform

field sobriety tests, which he failed.    Trooper Dwyer then

concluded that the defendant had been operating his motor

vehicle while under the influence of alcohol, and arrested him.7

     In denying the defendant's motion to suppress, the judge

concluded that the 911 call was placed by "an ordinary citizen -

- not an informant -- who had witnessed a motor vehicle

infraction, namely, a motor vehicle driving erratically on the

roadway."   Thus, even though the caller was not identified -- or

identifiable -- the judge implicitly reasoned that the tip bore

adequate indicia of reliability, because the caller's report was

based on his personal knowledge, and the information he provided

could be accorded more weight than information from an


car's blue lights, would believe that he or she is not free to
leave").
     7
       The defendant does not challenge the sufficiency of the
evidence, which also included the results of a Breathalyzer test
indicating a blood alcohol level of 0.18.
                                                                    6


(anonymous) informant as a result of his status as an ordinary

citizen.8   The judge also found that the information provided by

the caller had been corroborated by the police.   She then

concluded that the stop was lawful because it was supported by

reasonable suspicion.

     Discussion.9   To justify a motor vehicle stop under the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights, the Commonwealth

must demonstrate that the police had reasonable suspicion "based

on specific, articulable facts and reasonable inferences

therefrom, that [the operator] of the . . . motor vehicle had

committed, was committing, or was about to commit a crime."10

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

Information from an anonymous 911 call may warrant reasonable

suspicion if it is shown to be reliable.11   In Massachusetts we


     8
       Although we conclude that the motion to suppress was
properly denied, we do not agree that an "ordinary citizen" is
more reliable than an anonymous informant in all circumstances.
     9
       "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 [her] ultimate findings and
conclusions of law.'" Commonwealth v. Costa, 448 Mass. 510, 514
(2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646
(2004).
     10
       The defendant does not argue that the stop was unlawful
because it occurred in his driveway.
     11
       There is authority for the proposition that a tip
conveyed via an emergency number like 911 carries heightened
                                                               7




indicia of reliability. A number of courts, including the
United States Supreme Court, have considered this issue under
the less stringent totality of the circumstances test and
concluded that because police emergency operators often record
such calls and have the means to determine the telephone number
from which a call is placed, a person calling 911 inherently
risks their anonymity.
     In a divided opinion, the United States Supreme Court
recently concluded that while 911 calls are not per se reliable,
a "caller's use of the 911 system is . . . one of the relevant
circumstances that, taken together, justified the officer's
reliance on the information reported in the 911 call."
Navarette v. California, 134 S. Ct. 1683, 1690 (2014). In that
case, an unidentified 911 caller reported being run off the road
by another vehicle and provided the vehicle's location,
direction, make, and license plate number. Id. at 1686-1687.
In considering the call's reliability, the Court observed that
numerous technological and regulatory advancements guard against
false 911 reports, including that 911 calls can be recorded and
the Federal Communications Commission requires that cellular
telephone carriers "relay the caller's phone number to 911
dispatchers" and "identify the caller's geographic location with
increasing specificity." Id. at 1689-1690. The Court also
noted that making a false 911 report subjects a caller to
prosecution. Ibid. False 911 reports are also subject to
prosecution in Massachusetts. See G. L. c. 269 § 14B(a).
     However, the four dissenting justices in Navarette
discounted, inter alia, the reliability of 911 calls. The
dissent criticized the majority's conclusion that the "ease of
identifying 911 callers" enhances the reliability of 911 calls,
pointing out that "[t]here is no reason to believe that your
average anonymous 911 tipster is aware that 911 callers are
readily identifiable." 134 S. Ct. at 1694 (Scalia, J.,
dissenting). Reasoning that technological and regulatory
developments can only lessen the likelihood of false reports
where callers are aware of such developments and adjust their
behavior accordingly, the dissent concluded that an anonymous
911 call reporting "generally available" details does not,
without more, support reasonable suspicion. Id. at 1693.
     Numerous State appellate courts are in accord with the
majority's reasoning. See, e.g., Grant v. State, 139 So. 3d
415, 418 (Fla. Dist. Ct. App. 2014) (whether tip came in via 911
call is relevant to reasonable suspicion determination); People
v. Linley, 388 Ill. App. 3d 747, 750 (2009) (most people likely
aware that calling 911 places their anonymity at risk); State v.
                                                                    8


apply the Aguilar-Spinelli test to determine whether an

anonymous tip is reliable.   See Commonwealth v. Costa, 448 Mass.

510, 515 n.9 (2007).   "To establish the reliability of the

information under art. 14 . . . 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 (the veracity test)."   Commonwealth v.

Anderson, 461 Mass. 616, 622 (2012), quoting from Commonwealth

v. Mubdi, 456 Mass. 385, 395-396 (2010) (other citation

omitted).   Where the standard is reasonable suspicion, as

opposed to probable cause, "a less rigorous showing in each of

these areas is permissible."   Ibid., quoting from Commonwealth

v. Mubdi, supra at 396.

    As an initial matter, there is no question that the

dispatch described the motor vehicle with sufficient

particularity such that Trooper Dwyer could be certain that the


Gamble, 218 N.J. 412, 433-434 (2014) (caller's use of 911 system
contributes to reasonable suspicion).
     Other State appellate courts have aligned with the
dissent's reasoning, concluding that 911 calls do not carry
heightened reliability where there is no evidence that the
caller expected to be, or actually was, identifiable. See,
e.g., Matthews v. State, 431 S.W.3d 596, 604 n.29 (Tex. Crim.
App. 2014) (tip not reliable in part because there was no
evidence that caller knew about "call sheet" nor that caller
could actually be traced); State v. Saggers, 182 Wash. App. 832,
847 (2014) (distinguishing Navarette because 911 call was placed
from gasoline station pay phone with no connection to caller).
                                                                    9


vehicle he stopped was the same one identified by the caller.

The dispatch identified the vehicle's color, make, license plate

number, and the address of the registered owner.   See

Commonwealth v. Anderson, supra at 621.   We also conclude that

the caller's report was sufficient to support the inference that

he had witnessed an incident of reckless driving and, therefore,

the "basis of knowledge" test was satisfied.12   See Commonwealth

v. Lubiejewski, 49 Mass. App. Ct. 212, 214 (2000) (basis of the

caller's knowledge properly was inferred from the report itself,

which indicated firsthand observation of erratic operation).

See also Commonwealth v. Costa, supra at 518 (basis of knowledge

test satisfied where caller claiming to be in close proximity to

suspect carrying concealed handgun provided suspect's location

and described suspect's clothing in full); Commonwealth v.

Anderson, supra at 622 (basis of knowledge test satisfied where

caller reported personally witnessing "two black men get into a

silver or gold Toyota Camry bearing a registration plate

22CO77").   Contrast Commonwealth v. Gomes, 75 Mass. App. Ct.

791, 792, 795 (2009) (caller's report of man holding gun in air

not credited, in part because caller failed to report own

location); Commonwealth v. Mubdi, supra at 396 (caller's basis

of knowledge questioned where Commonwealth failed to introduce

     12
       In fact, Trooper Dwyer testified that the caller was
following the motor vehicle in question. However, the record
does not disclose how Trooper Dwyer knew of that fact.
                                                                    10


911 call showing that information was "derived from personal

observation rather than hearsay or rumor").

     We now turn to the veracity test.    The question whether the

police had an adequate basis for concluding the caller was

reliable is a close one.   Although the initial 911 call was

recorded, the Commonwealth presented no evidence to establish

that the caller was identifiable.   There was no evidence that

the telephone number used by the caller could be identified or

that the caller otherwise knew the number could be traced.     As

the defendant points out, the absence of evidence demonstrating

that the caller's anonymity was at risk has resulted in a

finding of unreliability in a number of cases.    See Commonwealth

v. Mubdi, supra at 397 (Commonwealth failed to establish

unidentified caller's reliability where there was "no reason to

believe the caller needed to fear that he or she would be

subject to a charge of filing a false report or any comparable

consequence of providing false information to law enforcement");

Commonwealth v. Gomes, supra at 794 (investigatory stop based on

a 911 emergency telephone call made by an "unidentified and

unidentifiable" caller was unlawful).13   Contrast Commonwealth v.


     13
       As noted, Commonwealth v. Mubdi, 456 Mass. at 396-397 ,
and Commonwealth v. Gomes, 75 Mass. App. Ct. at 794-795, are
distinguishable on the ground that the Commonwealth failed in
those cases to establish the caller's basis of knowledge. In
addition, there was no evidence in either case that the caller
knew that his or her 911 call was being recorded.
                                                                     11


Costa, 448 Mass. at 512-513 (reliability of anonymous telephone

call established where the Commonwealth introduced evidence that

the 911 emergency operator had identified the caller's telephone

number and informed the caller that her cellular telephone

number had been identified and that the call was being

recorded).

       However, the absence of evidence that the caller has placed

his anonymity at risk does not preclude the Commonwealth from

establishing the caller's reliability.    "Where the caller is

anonymous, there are at least two ways to establish the caller's

reliability.   The first is through independent corroboration by

police observation or investigation of the details of the

information provided by the caller."     Commonwealth v. Anderson,

461 Mass. at 623.   The "second way to establish the caller's

reliability is 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 Trooper Dwyer's observations of the

defendant's vehicle did corroborate some of the information

provided by the 911 caller, he did not observe any suspicious
                                                                      12


behavior.   However, even without sufficient corroboration, we

conclude that the Commonwealth met its burden because it can be

inferred that the 911 call was made contemporaneously with the

caller's observation of apparent criminal activity, namely

driving while intoxicated, and therefore, the caller was under

the stress or excitement of a "startling or shocking event."

Commonwealth   v. Depina, 456 Mass. 238, 244 (2010).

    The circumstances of this case are similar to those

addressed by the Supreme Judicial Court in Commonwealth v.

Anderson, supra.   In that case, the court concluded that an

anonymous caller who reported observing two men who appeared to

have just committed a robbery make their getaway "passed the

less rigorous veracity test needed for reasonable suspicion

where there was [some] independent corroboration of the

information furnished by the caller and where the call was made

immediately after the startling event."   Id. at 625.     The court

stated that "[w]hile the evidence does not reflect whether the

caller knew of the robbery or saw the men wearing masks, we can

infer the caller recognized that they appeared to have just

committed a crime and were making their getaway; otherwise it

would have made no sense to contact the police and provide the

registration plate number of a departing vehicle."      Id. at 623.

The court analogized the call to an excited utterance and
                                                                      13


concluded that the spontaneous and startled nature of the call

heightened its reliability.    Id. at 625.

    The same analysis applies here.     The danger of driving

while intoxicated presents a grave danger to the public.      See

generally Commonwealth v. Davis, 63 Mass. App. Ct. 88, 91

(2005).   The threat of immediate serious physical injury from a

drunk driver is such that the call at issue was "spontaneous to

a degree which reasonably negated premeditation or possible

fabrication."   Commonwealth v. Anderson, supra at 624, quoting

from Commonwealth v. Depina, 456 Mass. at 244.    Here, as in

Anderson, the evidence supports the inference that the caller

utilized the emergency number "911" for a valid reason, to

report to the police what the caller understood to be a "drunk"

driver operating a vehicle dangerously on a major thoroughfare,

rather than for any malicious purpose that would lessen its

reliability.    Commonwealth v. Anderson, supra at 623 n.9.     See

Commonwealth v. Depina, supra at 245 (anonymous caller passed

the veracity test where she reported a shooting in her backyard

and witnessed a suspect fleeing, because the circumstances

suggested that she did not intend to mislead the police).

Furthermore, as the court also noted in Anderson, "[i]f a person

wants to harass an enemy by providing false information to the

police that would trigger an investigative stop, the person is

unlikely to wait until the caller has just seen someone flee a
                                                                   14


crime scene."   456 Mass. at 625.   We think it equally unlikely

that a person bent on mischief or harassment would wait until he

or she observed an enemy drive a car, and then accuse him or her

of dangerous driving.

     The fact that the caller's report bore sufficient indicia

of reliability does not end our analysis.    We must still

determine whether the reliable tip created a reasonable

suspicion that the crime of operating a motor vehicle while

under the influence of alcohol had been or was being committed.14

While there was no specific information provided by the caller

regarding alcohol consumption, we can appropriately recognize

that "swerving all over the road" is a significant indicator of

drunk driving.15   Here, Trooper Dwyer could reasonably suspect

that the behavior reported by the caller was consistent with

     14
       The Commonwealth also argues that our decision in
Commonwealth v. Davis, 63 Mass. App. Ct. at 90-91, renders the
stop in this case reasonable under the emergency doctrine.
Given our conclusion that the stop was supported by reasonable
suspicion, we do not reach this argument.
     15
       To be sure, the erratic and dangerous behavior reported
by the 911 caller could have been caused by sudden illness or
mere distraction, but our case law does not require an officer
to exclude all possible innocent reasons for the conduct at
issue. See Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007)
(that there may be an innocent explanation for the defendant's
actions "does not remove [those actions] from consideration in
the reasonable suspicion analysis"). Further, the 911 caller
reported behavior falling within the ambit of what the United
States Supreme Court considers "sound indicia of drunk driving,"
such as "driving all over the road" and "weaving all over the
roadway." Navarette v. California, 134 S. Ct. at 1690 (other
citations omitted).
                                                                  15


driving under the influence of alcohol and, because Trooper

Dwyer knew that the defendant was on probation for drunk

driving, he had the requisite reasonable suspicion to make an

investigatory stop, even though he had not personally observed

any suspicious behavior.   See Commonwealth v. Gomes, 453 Mass.

506, 511-512 (2009) (officer's knowledge that defendant has

history of similar crimes contributed to reasonable suspicion

that defendant had, was in the process of, or was about to

engage in that criminal behavior).   See also Cypher, Criminal

Practice and Procedure § 4.10, at 190 (4th ed. 2014) ("[T]he

fact that a person has been previously convicted of a crime does

not relegate the individual to the status of a second class

citizen, yet the knowledge of the defendant's criminal

background can be used as an additional factor in determining if

there should be a brief threshold inquiry").    In sum, given the

reliable report of a significant danger coupled with the

knowledge of the defendant's criminal history, "the police would

have been remiss had they not conducted an investigatory stop of

this vehicle."   Commonwealth v. Anderson, 461 Mass. at 625.

                                     Judgment affirmed.
