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SJC-11893

COMMONWEALTH vs. JOHN C. DEPIERO.

Middlesex. November 3, 2015. - January 4, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Constitutional Law, Investigatory stop, Reasonable suspicion.

Search and Seizure, Threshold police inquiry, Reasonable 

suspicion. Threshold Police Inquiry. Motor Vehicle, 

Operating under the influence. Evidence, Anonymous 

statement, Corroborative evidence.

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 Leony, J., and the case was heard by Joseph 

W. Jennings, III, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Jane Prince (Randy S. Chapman with her) for the defendant.

Casey E. Silvia, Assistant District Attorney, for the 

Commonwealth.

Daniel K. Gelb, for National Association of Criminal 

Defense Lawyers, amicus curiae, submitted a brief.

Chauncey B. Wood, Dahlia S. Fetouh, Nancy A. Dinsmore, & 

Benjamin R. Cox, for Massachusetts Association of Criminal 

Defense Lawyers, amicus curiae, submitted a brief.
2

CORDY, J. In January, 2013, after a bench trial, the 

defendant was convicted of operating a motor vehicle while under 

the influence of alcohol (second offense) in violation of G. L. 

c. 90, § 24 (1) (a) (1). On appeal, he argues that the denial 

of his motion to suppress evidence obtained during a warrantless 

stop of his vehicle was error.

The stop, made by State police Trooper John Dwyer, was 

prompted by the receipt of an anonymous 911 call concerning an 

apparent drunk driver traveling on Memorial Drive in Cambridge. 

The defendant claimed that the stop was neither supported by 

reasonable suspicion nor made pursuant to an ongoing emergency. 

After a hearing, a judge denied the defendant's motion to 

suppress, concluding that Dwyer "had reasonable suspicion to 

conduct an investigatory stop." The judge reasoned that "[t]he 

911 call was from an ordinary citizen -- not an informant -- who 

had witnessed a motor vehicle infraction, namely, a motor 

vehicle driving erratically on the roadway."1

 

1 The defendant objected to the introduction of the 911 call 

at the motion to suppress hearing because the Commonwealth had 

failed to authenticate the tape recording properly. There was 

no error in admitting the 911 call. See Mass. G. Evid. § 1101 

(d) (2015) ("[t]he law of evidence does not apply with full 

force at motion to suppress hearings"). See also Commonwealth

v. Siny Van Tran, 460 Mass. 535, 546 (2011) ("[a] proponent 

adequately lays the foundation for admission when a 

preponderance of the evidence demonstrates that the item is 

authentic"). The 911 call began with a statement that the 
3

The Appeals Court affirmed the denial of the defendant's 

motion to suppress, but on different grounds. Commonwealth v. 

Depiero, 87 Mass. App. Ct. 105, 106 (2015). The Appeals Court 

concluded that the information bore sufficient indicia of 

reliability because the unidentified caller's observations were 

made "under the stress or excitement of a 'startling or shocking 

event.'" Id. at 112, quoting Commonwealth v. Depina, 456 Mass. 

238, 244 (2010). Dwyer could therefore rely on the information 

in establishing reasonable suspicion to conduct an investigatory 

stop. Id. at 113.

Subsequent to the judge's ruling on the defendant's motion 

to suppress, the United States Supreme Court released its 

decision in Navarette v. California, 134 S. Ct. 1683 (2014), 

regarding the weight properly afforded to the reliability of 

information provided to police over the 911 emergency call 

system by an anonymous caller. The Court concluded that because 

of technological and regulatory developments, "a reasonable 

officer could conclude that a false tipster would think twice 

before using [the 911] system," and therefore its use is "one of 

 

caller had reached the "State [p]olice, 911." State police 

Trooper John Dwyer testified that he was familiar with the 

procedure by which the State police treat incoming 

communications, and that such procedure was followed on the 

night in question. Moreover, having reviewed the tape recording 

of the communications, the information contained in the portion 

of the 911 call that was recorded was consistent with the 

information later communicated to Dwyer by the dispatcher.
4

the relevant circumstances that, taken together, [can justify 

an] officer's reliance on the information reported in the 911 

call." Id. at 1690. We granted the defendant's application for 

further appellate review to consider whether the police had 

reasonable suspicion to conduct an investigative stop of his 

vehicle, and whether, under art. 14 of the Massachusetts 

Declaration of Rights, we would afford weight similar to that 

afforded by the Supreme Court to the reliability of anonymous 

911 telephone callers.

We decline to endorse the Supreme Court's reliance on the 

use of the 911 system as an independent indicium of reliability 

for an anonymous tip. That being said, the information gleaned 

from the anonymous call in the present case, corroborated by 

other information, was sufficiently reliable to warrant a 

finding that the officer had reasonable suspicion to stop the 

defendant's vehicle. The denial of the defendant's motion to 

suppress is therefore affirmed.2

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

judge, supplemented with facts supported in the record.3 On 

 

2 We acknowledge the amicus briefs submitted by the 

Massachusetts Association of Criminal Defense Lawyers and the 

National Association of Criminal Defense Lawyers.

3 "[A]n appellate court may supplement a motion judge's 

subsidiary findings with evidence from the record that 'is 

uncontroverted and undisputed and where the judge explicitly or 

implicitly credited the witness's testimony,' Commonwealth v. 
5

August 11, 2011, at approximately 2 A.M., Trooper Dwyer received 

a dispatch concerning a black Mercedes Benz motor vehicle

operating erratically and unable to maintain a lane on Memorial 

Drive in Cambridge. The dispatch was prompted by a 911 

telephone call received by a State police emergency operator in 

Framingham from an unidentified caller.

The tape recording, played during the motion to suppress 

hearing, indicates that the 911 caller was first informed that 

"this line is recorded," before the emergency 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 call was then relayed to the State police 

barracks in the Brighton section of Boston, where it was 

answered by Trooper Usom, who contacted Dwyer.

Usom's dispatch to Dwyer referred to "one call" for 

"erratic operation" of a motor vehicle, and provided the make, 

color, and registration number for the vehicle. Usom reported 

the Belmont address to which the vehicle was registered, and 

 

Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 

(2008), so long as the supplemented facts 'do not detract from 

the judge's ultimate findings.'" Commonwealth v. Jones-Pannell, 

472 Mass. 429, 431 (2015), quoting Commonwealth v. Jessup, 471 

Mass. 121, 127-128 (2015). The motion judge found "Dwyer's 

testimony to be credible."
6

that the owner of the vehicle in question was "on probation for 

drunk driving."

On receiving the dispatch, Dwyer drove to the defendant's 

address, which took approximately five minutes. After a few 

minutes the defendant's vehicle arrived, and Dwyer observed it 

being driven for less than one minute before it turned into the 

driveway of the Belmont address. Dwyer did not see the 

defendant operate the vehicle in an illegal or unreasonable 

manner. Dwyer turned into the driveway behind the defendant and 

activated his cruiser's emergency lights.

The defendant almost fell on exiting the vehicle. Dwyer 

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

as well as the "odor of an alcoholic beverage." The defendant 

produced his driver's license and vehicle registration. Dwyer 

asked if the defendant had been drinking, to which the defendant 

claimed to have had two drinks. Dwyer conducted field sobriety 

tests, which the defendant failed. He concluded that the 

defendant was operating his vehicle under the influence of 

alcohol, and placed the defendant under arrest. At the station, 

the defendant agreed to a breathalyzer test, which registered a 

blood alcohol level of 0.18. Ultimately, he was charged with 

operating a motor vehicle in violation of a license restriction, 

G. L. c. 90, § 10; and operating a motor vehicle while under the 
7

influence of liquor, second offense, G. L. c. 90, § 24 (1) (a) 

(1).

2. Discussion. "In reviewing a ruling on a motion to 

suppress, we accept the judge's subsidiary findings of fact 

unless they are clearly erroneous but independently review the 

judge's ultimate findings and conclusions of law." Commonwealth

v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S. Ct. 433 

(2012).

An investigatory stop is justified under art. 14 if the 

police have "reasonable suspicion, based on specific, 

articulable facts and reasonable inferences therefrom, that an 

occupant of the . . . motor vehicle had committed, was 

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

Alvarado, 423 Mass. 266, 268 (1996). Where, "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 dispatch contained adequate particularity: 

it identified the make, color, and registration number of the 

motor vehicle and the address attributed to the owner of the

vehicle. See Commonwealth v. Mubdi, 456 Mass. 385, 395 (2010). 

Therefore, the question whether Dwyer had reasonable suspicion 
8

to conduct the investigatory stop of the defendant's vehicle is 

contingent on whether the information prompting the dispatch 

bore sufficient indicia of reliability.

Under the Aguilar-Spinelli test, "[t]o 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 (veracity test).'" 

Anderson, 461 Mass. at 622, quoting Lopes, supra at 155-156. 

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

Texas, 378 U.S. 108 (1964). Where the required standard is 

reasonable suspicion rather than probable cause, "a less 

rigorous showing in each of these areas is permissible." Mubdi, 

456 Mass. at 396, quoting Commonwealth v. Lyons, 409 Mass. 16, 

19 (1990). "Independent police corroboration may make up for 

deficiencies in one or both of these factors." Commonwealth v. 

Costa, 448 Mass. 510, 514-515 (2007), quoting Lyons, supra.

As an initial matter, we conclude that the basis of 

knowledge test was satisfied as to the 911 caller, as "[a]n 

eyewitness's report to police of [a] recent, firsthand 

observation satisfies the basis of knowledge prong." Anderson, 

461 Mass. at 622, quoting Depina, 456 Mass. at 243. See

Anderson, supra (basis of knowledge test satisfied where caller 
9

"personally witnessed two black men get into a silver or gold 

Toyota Camry bearing a registration plate 22CO77"). The degree 

of detail provided to the Framingham emergency operator, and 

then related by the dispatcher, including the caller's reported 

observation of the driver "swerving all over the road" at a 

specific location on Memorial Drive, the registration number, as 

well as the make and model of the motor vehicle, are sufficient 

to establish that the information derived from the personal 

observations of the 911 caller. See Commonwealth v. Alfonso A., 

438 Mass. 372, 374 (2003) (basis of knowledge test satisfied 

where "it is apparent that the informant was reporting his own 

observation"); Commonwealth v. Lubiejewski, 49 Mass. App. Ct. 

212, 214 (2000) (test satisfied where informant "described the 

operation of the truck as it was being driven along the 

highway").

We therefore turn to the reliability prong. "The veracity 

test is more difficult for the Commonwealth to satisfy where, as 

here, the caller was anonymous. Because the caller was 

anonymous, there could be no evidence regarding the caller's 

past reliability or reputation for honesty." Anderson, 461 

Mass. at 622.
10

The Commonwealth urges us to incorporate into our art. 14 

jurisprudence4 the Supreme Court's recent decision in Navarette, 

in which the Court, in a divided opinion, held that the use of 

the 911 emergency system itself is an "indicator of veracity." 

Navarette, 134 S. Ct. at 1689. The Court's reasoning, as noted, 

was grounded in technological and regulatory developments 

regarding the 911 emergency call system (making it easier to 

identify telephone numbers of callers), coupled with the fact 

that false tipsters are subject to prosecution. Id. at 1689-

1690. Although Massachusetts also prosecutes false 911 reports, 

see G. L. c. 269, § 14B (a), and we have held in various 

contexts that a citizen informant who is identifiable is 

deserving of greater consideration than that of truly anonymous 

sources, see, e.g., Costa, 448 Mass. at 515, we are not inclined 

at this time to attribute veracity to all 911 callers. As the 

dissenting Justices in Navarette pointed out, even if the police 

are able to recover the telephone number and identity of 911 

callers, "it proves absolutely nothing . . . unless the 

anonymous caller was aware of that fact. It is the tipster's 

belief in anonymity, not its reality, that will control his 

 

4 Article 14 of the Massachusetts Declaration of Rights 

provides greater protection in this area than does the Fourth 

Amendment to the United States Constitution. Commonwealth v. 

Upton, 394 Mass. 363, 373 (1985).
11

behavior." Navarette, 124 S. Ct. at 1694 (Scalia, J., 

dissenting). We agree.

The caller in this case was aware that his call was being 

recorded; there is no way to know, however, based on the record 

before us, whether the caller had reason to believe that he 

might be identified or that the telephone that he was using 

might be traced back to him, such that it could affect his 

behavior or the veracity of the information he provided.5 See

Anderson, 461 Mass. at 622, quoting Mubdi, 456 Mass. at 397

(where no evidence presented to caller that he or she was 

identifiable by police, there is "no reason to believe the 

caller needed to fear 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"). Contrast Costa, 448 

Mass. at 517 ("By providing information to the police after 

knowing that her call was being recorded, and that the number 

she was calling from had been identified, . . . the caller 

placed her anonymity sufficiently at risk such that her 

reliability should have been accorded greater weight than that 

 

5 In the "Frequently Asked Questions" portion of the Web

site of the Executive Office of Public Safety and Security, 

http://www.mass.gov/eopss/agencies/state-911/e911/trng-andprogs/faq.html [http://perma.cc/2HRM-5HUK], those who inquire 

about the 911 emergency call system are advised that the system 

may or may not be able to identify the phone numbers of persons 

calling into it and the locations of their telephones, but 

callers should "[a]ssume the 9-1-1 call taker does not know your 

location" or "your [tele]phone number" (emphasis in original).
12

of an anonymous informant"). We therefore decline to credit any 

indicia of reliability to the unidentified caller's information 

merely because the information was transmitted in the form of a 

911 telephone call.

However, 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. . . .

Independent corroboration is relevant only to the extent that it 

was known to the police before the stop was initiated"

(citations omitted). Anderson, 461 Mass. at 623. See 

Commonwealth v. Barros, 435 Mass. 171, 178 (2001).6

 

6 The Appeals Court relied on the "excited utterance" theory 

to conclude the 911 call bore adequate indicia of reliability, a 

theory not raised in the trial court. Commonwealth v. Depiero, 

87 Mass. App. Ct. 105, 112-113 (2015). See Commonwealth v. 

Anderson, 461 Mass. 616, 624-625, cert. denied, 133 S. Ct. 433

(2012), quoting Commonwealth v. Depina, 456 Mass. 238, 240 

(2010).

Although we may consider this issue despite it being raised 

for the first time on appeal, see Commonwealth v. Va Meng Joe, 

425 Mass. 99, 102 (1997), the excited utterance theory is 

inapposite in the present case, where the only information 

regarding the occurrence of any criminal conduct came from the 

911 caller. This is unlike the circumstances in Anderson, supra

at 619-620, 625, where police already had responded to a report 

of a store robbery by two men matching the description of people 

an anonymous caller subsequently described as getting into a 

particular vehicle, and in Depina, supra at 240, where police 

had received a request for an ambulance prior to receiving an 

anonymous tip reporting that the caller had heard gunshots in 

the backyard.
13

We conclude that the police observation and investigation

in this case adequately corroborated the details provided by the 

unidentified caller, such that the information exhibited

"sufficient indicia of reliability to provide reasonable 

suspicion to make the investigatory stop." Anderson, supra at 

623, quoting Florida v. J.L., 529 U.S. 266, 270 (2000). First, 

Dwyer's observations corroborated the location of the driver at 

the time of the 911 call. Dwyer, after consulting a map, 

determined that he would not have the time to intercept the 

defendant between the defendant's home in Belmont and the 

location where the erratic driving was reported on Memorial 

Drive in Cambridge. Based on those calculations, he drove 

directly to the defendant's home, which took approximately five 

minutes. Within a few minutes of his arrival, Dwyer observed 

and identified a vehicle that matched the unidentified caller's 

description arriving at the address to which he had been sent. 

See Costa, 448 Mass. at 518 (police arrived within minutes of 

 

Moreover, where there was no finding below, we have 

reviewed the tape of the 911 call, and perceive nothing 

particularly excited in the unidentified caller's tone or 

nature. See Commonwealth v. Santiago, 437 Mass. 620, 624-625 

(2002) (to determine if statement satisfies excited utterance 

exception, we look to "whether the declarant displayed a degree 

of excitement"). Although drunk driving presents a "grave 

danger" to the public, Commonwealth v. Davis, 63 Mass. App. Ct. 

88, 91 (2005), and thus may, in some instances, cause a 911 

caller's declaration to warrant consideration as an excited 

utterance, the caller here introduced the reason for dialing 911 

as "[j]ust a call. . . ." In any event, we discern no indicia 

of reliability from the unidentified caller's state of mind.
14

anonymous caller's tip, and "were able to corroborate many of 

the [albeit innocent] details provided by the caller"). Second, 

the fact that Dwyer was informed that the defendant was on 

probation for the same type of criminal activity of which he was 

suspected further corroborated the anonymous call. See 

Commonwealth v. Germain, 396 Mass. 413, 418 (1985) (defendant's 

record of recent convictions for similar crimes indicate 

reliability of anonymous tip under Aguilar-Spinelli analysis). 

These details provide a level of corroboration beyond that of 

"innocent" or easily obtainable facts, see Alvarado, 423 Mass. 

at 272, and the information contained in the 911 call therefore 

passed the less rigorous veracity test needed under our 

reasonable suspicion analysis. See Lyons, 409 Mass. at 19.

Even armed with a reliable tip that it was indeed the 

defendant's motor vehicle that was driving erratically at 

2 A.M., Dwyer's investigative stop of the defendant's vehicle 

was justified only if the information created a reasonable 

suspicion that "criminal activity may be afoot," Terry v. Ohio, 

392 U.S. 1, 30 (1968); in other words, that the driver of a 

motor vehicle "had committed, was committing, or was about to 

commit a crime." Alvarado, supra at 268. We need not decide 

whether a single instance of erratic driving may not be a crime,

because the information provided by the unidentified caller 

regarding the defendant "swerving all over the road," coupled 
15

with the information about the defendant being on probation for 

a similar crime, was sufficient to create a reasonable suspicion 

of criminal conduct, permitting Dwyer to make the stop even 

without seeing any suspicious behavior personally. See 

Commonwealth v. Gomes, 453 Mass. 506, 511 (2009) (officer's 

knowledge of defendant's previous arrests on drug charges was 

factor for consideration in justifying stop). Indeed, "[i]n 

these circumstances, the police would have been remiss had they 

not conducted an investigative stop of [the defendant's]

vehicle." Anderson, 461 Mass. at 625.7

3. Conclusion. We affirm the motion judge's denial of the 

defendant's motion to suppress, albeit for reasons different 

than those relied on by the Appeals Court.

So ordered.

 

7 In light of the conclusion that the stop of the 

defendant's vehicle was supported by reasonable suspicion, we 

need not reach the Commonwealth's argument, based on Davis, 63 

Mass. App. Ct. at 90-91, that the stop was reasonable under the 

emergency doctrine.