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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2 We previously decided this appeal in an unpublished 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.