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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Lubiejewski,
49 Mass.App.Ct. 212 (2000)
Appeals Court of Massachusetts,
No. 98‑P‑1985.
Argued
Decided
Dana Alan Curhan,
Elspeth B. Cypher,
Assistant District Attorney, for the Commonwealth.
Present:
ARMSTRONG, C.J., SMITH, & BROWN, JJ.
SMITH, J.
On
Prior to
trial, the defendant filed a motion to suppress the evidence on the grounds
that the police did not have probable cause or reasonable suspicion to stop his
motor vehicle. A District Court judge
denied the motion after a hearing.
A trial
was held before a judge sitting without a jury.
The defendant was found guilty of operating a motor vehicle while [49 Mass.App.Ct.
213] under the influence and not
guilty of operating to endanger. The
defendant's appeal raises one issue, namely, the denial of his suppression
motion.
The judge
did not make any findings of fact, but the facts are not in dispute. On August 25, 1995, at approximately l:00
A.M., State trooper Michael Bates was on routine patrol when Trooper Thibodeau radioed him from the barracks; an unidentified motorist had called from a
car phone and reported that a pickup truck with Massachusetts license plate
number D34‑314 was traveling on the wrong side of Route 195 in the vicinity
of Route 140 in New Bedford.
Thibodeau later radioed Bates that the motorist had called
again and stated that the truck had slowed down, crossed the grassy median
strip, and then proceeded onto the correct side of the highway. The truck thereafter left the highway and
proceeded south on Route 240 in
Thibodeau ran a Registry of Motor Vehicle check on the
license plate number and informed Bates that the truck was registered to 22
James Street in Fairhaven. Bates drove
to that address. As he turned onto James
Street, he observed headlights from a pickup truck traveling in his direction,
away from the address he had been given.
He noticed that the front license plate number matched the one provided
to Thibodeau by the unidentified motorist. Bates turned his cruiser around and stopped
the truck after following it for about twenty feet on James Street. Bates made the stop of the truck as a result
of the unidentified motorist's report, and not because of any observations he
made concerning the operation of the vehicle.
After he
had been stopped, the defendant produced his license and registration. Because Bates detected an odor of alcohol, he
had the defendant perform some field sobriety tests. As a result of those tests, Bates concluded
that the defendant had been operating his vehicle while under the influence of
alcohol, and arrested him.
On appeal,
the defendant argues that Trooper Bates lacked reasonable grounds to stop his
vehicle because Bates did not observe any motor vehicle infraction or erratic
operation but rather, acted solely on the basis of an anonymous telephone call
reporting an earlier infraction.
Contrast Commonwealth v. Smigliano, 427 Mass. 490, 491‑492, 694 N.E.2d 341
(1998) (investigatory stop justified where officer received report from
motorist that the defendant's car was "all over the road" and the
officer saw the [49 Mass.App.Ct. 214]
defendant's car twice veer to the right and nearly hit parked cars).
[1] An
investigatory stop of a motor vehicle may be justified if the Commonwealth
proves "that the police had a 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."
Commonwealth v. Alvarado, 423 Mass. 266, 268, 667 N.E.2d 856
(1996). Accord Commonwealth v. Alvarado, 427 Mass. 277, 280‑281, 693 N.E.2d
131 (1998). "[I]f the police
conduct an investigatory stop based on an informant's tip, our evaluation of
the tip's indicia of reliability will be focused on the informant's reliability
and his or her basis of knowledge....
Because the standard is reasonable suspicion rather than probable cause,
a less rigorous showing in each of these areas is permissible." Commonwealth
v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990).
[2] Here,
the basis of the informant's knowledge appeared within the tip itself, in which
he or she described the operation of the truck as it was being driven along the
highway. Therefore, the report was based
on the unidentified motorist's personal knowledge. Commonwealth v. Smigliano, supra at 492, 694 N.E.2d 341.
[3]
"The more difficult question is whether the police had an adequate basis
for concluding that the informant was reliable.
Because the informant was anonymous, there was no basis for relying on
previous conduct of the informant." Commonwealth v. Alvarado, supra at 27l,
667 N.E.2d 856. The informant's
reliability, however, could be established by independent police corroboration.
Commonwealth v. Lyons, supra at 19, 564 N.E.2d 390.
[4]
Trooper Bates's observations of the vehicle did
corroborate some details of the informant's tip such as the type of vehicle,
its license plate number and its appearance in the area. However, the information supplied by the
informant did not include any specific details about the defendant which were
not otherwise easily obtainable by an uninformed bystander. Commonwealth v. Motta, 34 Mass.App.Ct. 921,
922, 609 N.E.2d 1228 (1993). "The
corroboration went only to obvious details, not nonobvious
details.... Anyone can telephone the
police for any reason." Commonwealth v. Lyons, supra at 21, 564
N.E.2d 390 (reasonable suspicion for investigatory stop not provided by
anonymous informant's tip of color, make, and registration number of car, its
direction, and race and gender of occupants because tip did not show basis of
knowledge or informant's reliability).
See Florida v. J.L.,
‑‑‑ U.S. ‑‑‑‑, ‑‑‑‑
‑ ‑‑‑‑, 120 S.Ct. 1375,
1378‑1379, 146 L.Ed.2d 254, ‑‑‑‑ ‑ ‑‑‑‑
(2000)[49 Mass.App.Ct.
215]
(anonymous tip that young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a firearm lacked sufficient indicia of
reliability to establish reasonable suspicion to justify Terry (FN1) stop).
The
Commonwealth argues that the decision in
Commonwealth v. Hurd, 29 Mass.App.Ct.
929, 930, 557 N.E.2d 72 (1990), renders the stop reasonable. In Hurd, the police received information from an anonymous
caller that a man who appeared to be drunk was getting into a blue automobile
with New Hampshire license plates in front of a package store. There were three small children in the
automobile. The police responded to the
call and when they arrived at the location, they saw the automobile approaching
the entrance to Route 128, a high speed highway.
In our
decision this court relaxed the requirements that the Commonwealth must show
the basis of knowledge and reliability of the informant because the information
conveyed to the police demonstrated "an emergency situation requiring
immediate action for the protection of life and property." Id.,
quoting from Commonwealth v. Marchione,
384 Mass. 8, 11, 422 N.E.2d 1362 (1981).
Therefore, we held that, because the police had reasonable grounds to
believe an emergency existed, they acted appropriately in stopping the vehicle
to see if, in fact, the driver was intoxicated.
[5] In
justifying an action under the emergency doctrine, "the Commonwealth has
the burden of showing ... that 'the authorities had reasonable ground to
believe that an [emergency] existed, and ... [that] the actions ... were
reasonable under the circumstances.' " Commonwealth v. Morrison, 429 Mass. 511,
515, 710 N.E.2d 584 (1999), quoting from
Commonwealth v. Marchione, supra at 10‑11,
422 N.E.2d 1362.
[6] The
stop that occurred here cannot be based on the emergency doctrine because, at
the time that Bates observed the defendant's truck, any emergency was
over. The anonymous motorist's last
report was that the vehicle had moved to the correct side of the road. Further, when Bates came upon the defendant's
vehicle, he observed that it was being operated in a normal manner. Therefore, in the absence of any specific
information that the operator of the pickup truck was intoxicated or
incapacitated in some manner, once the operator returned to the correct side of
the road, the emergency had ended.
[49 Mass.App.Ct.
216] On appeal, the Commonwealth
also relies on the "community caretaking" function, a theory that it
did not raise below, in support of its argument that the stop was reasonable.
"Police
encounters with citizens are not limited to criminal investigations on the
exercise of regulatory duties. Some
encounters may occur simply when a citizen is in need of assistance, as part of
an officer's 'community caretaking functions.' " Commonwealth v. Murdough, 44 Mass.App.Ct.
736, 738, 694 N.E.2d 15 (1998), S. C.,
428 Mass. 760, 704 N.E.2d 1184 (1999), quoting from Cady v. Dombrowski, 413 U.S. 433, 441,
93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).
[7] Under
the community caretaking doctrine, police officers are allowed, without
reasonable suspicion of any criminal activity, for example, to check on
motorists parked in rest areas, especially in winter, Commonwealth v. Murdough, supra at 739,
694 N.E.2d 15; or to open an unlocked
door of a parked vehicle where the officer is acting out of concern for the
well‑being of the person inside,
Commonwealth v. Leonard, 422 Mass. 504, 508‑509, 663 N.E.2d 828,
cert. denied, 519 U.S. 877, 117 S.Ct. 199, 136
L.Ed.2d 135 (1996). See appendix to Commonwealth v. Smigliano,
427 Mass. at 501‑503, 694 N.E.2d 341, for a list of decisions where
courts have held that police officers may approach and detain citizens for
community caretaking purposes and cases where courts have rejected the
community caretaking function as basis for a stop.
[8] There
is an important limitation to the community caretaking function. In Cady
v. Dombrowski, supra at 441, 93 S.Ct. 2523, the Court emphasized that the community
caretaking functions must be "totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a
criminal statute."
[9] Here,
the defendant was arrested not only for operating while under the influence,
but also for operating a motor vehicle negligently so as to endanger. The basis for that charge was the
unidentified motorist's report that the truck was operating on the wrong side
of Route 195. Therefore, because a
reasonable inference may be drawn that Trooper Bates was engaged in "the
detection, investigation, or acquisition of evidence relating to the violation
of a criminal statute," Cady v. Dombrowski, supra, the community caretaking function
cannot be used in these circumstances to justify the stop. See
Commonwealth v. Sondrini, 48 Mass.App.Ct.
704, 706‑707, 724 N.E.2d 748 (2000).
The motion
to suppress should have been allowed. As
the evidence at the bench trial that followed the suppression hearing was the
same as the evidence at the hearing, the guilty finding[49 Mass.App.Ct. 217] is set aside, the judgment
is reversed, and judgment is to enter for the defendant.
So ordered.
(FN1.)
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).