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Commonwealth v. Medeiros, 45 Mass.App.Ct.
240 (1998)
Appeals Court of Massachusetts,
No. 97‑P‑414.
Argued
Decided
Donald A. Brisson,
David Keighley, Assistant
District Attorney, for the Commonwealth.
Before GREENBERG, DREBEN
and LENK, JJ.
GREENBERG, Justice.
After a
motion judge denied the defendant's motion to suppress, the defendant was found
guilty at a bench trial in the District Court on a complaint charging him with
operating a motor vehicle after his operator's license had been suspended, in
violation of G.L. c. 90, § 23. The defendant appeals.
The
defendant asserts that the stop of his automobile and the arresting officer's
interrogation of him violated his rights under the Fourth Amendment to the
United States Constitution. On the
record before us, it appears that the judge erred in denying the defendant's
motion to suppress the information elicited from him by the officer as the stop
was "not based on reasonable suspicion that a crime had been
committed." Commonwealth v. Ellis, 12 Mass.App.Ct. 476, 476‑477, 426 N.E.2d 172 (1981), and
cases cited.
[1][2] [45 Mass.App.Ct.
241] The motion judge made
inadequate findings of fact. (FN1) Remand for additional findings is unnecessary
here because the facts are uncontested.
A
Dartmouth police officer appeared as the only witness at the hearing on the
motion. His testimony disclosed the
following. Around 8:00 P.M. on January
8, 1996, the Dartmouth police department received information by telephone from
an unidentified caller that the occupant of a white Monte Carlo automobile was
observed leaving the vehicle and knocking on the door of a house located in the
area of Skyline Drive to inquire whether a resident wanted him to shovel the
newly fallen snow. The caller supplied a
license plate number for the Monte Carlo.
Officer Michael Gill was dispatched by radio to investigate. As he drove down route six, he saw a white
Monte Carlo bearing the identified license plate number coming from a side
street headed in his direction. The
officer followed the car for about a mile.
The vehicle was not speeding, nor was it being operated in an erratic
fashion. The officer candidly testified
that the only reason he stopped the vehicle was because of the call from his
dispatcher.
After the
stop, the defendant, who was driving the Monte Carlo, could not produce his
operator's license, but, upon request, gave the officer a license number that
he represented as his. That number
proved incorrect, and a computer check revealed that the defendant's license
had been suspended and that there were warrants out for his arrest. The defendant was placed under arrest for
operating a motor vehicle while his license was suspended.
[3] The
defendant concedes (as he must) that his operator's license was under
suspension. He argues, however, that the
police lacked reasonable suspicion to stop the white Monte Carlo. Relying on
Commonwealth v. Lyons, 409 Mass. 16, 20‑22, 564 N.E.2d 390 (1990), he
claims that the lack of corroborative information to support the reliability of
the anonymous tip renders the stop of [45
Mass.App.Ct. 242]
the vehicle and the officer's preliminary inquiry unconstitutional. His argument is correct.
[4][5][6]
We start with the proposition that a stop of a moving vehicle involves a
seizure within the meaning of the Fourth Amendment even if the period of
detention is short. See Commonwealth v. Silva, 366 Mass. 402,
405, 318 N.E.2d 895 (1974). If the
police are relying on a radio transmission as grounds for the stop, there must be evidence presented
at the suppression hearing as to its reliability. Commonwealth v. Berment, 39 Mass.App.Ct. 522,
526, 657 N.E.2d 1295 (1995), and cases cited.
Further, the prosecutor has the "burden of proving specific and articulable facts which gave the officer reasonable ground
to suspect that [the] occupant of the car had committed, was committing, or was
about to commit a crime." Commonwealth v. Wainio,
7 Mass.App.Ct. 863, 863, 385 N.E.2d 1023 (1979).
Commonwealth v. Berment, supra. (Contrast
Commonwealth v. Cosme, 15 Mass.App.Ct.
448, 451‑453, 446 N.E.2d 123 [1983], a case in which the officer
confirmed that a break‑in had occurred shortly before stopping the
defendant in his car.)
In
addition to a license plate number, the only information supplied by the
unidentified caller was that the occupant of a white Monte Carlo vehicle went to
the door of a residence to inquire about shoveling snow just after a heavy
storm. There were no reports about
recent crimes in the area, see
Commonwealth v. Matthews, 355 Mass. 378, 244 N.E.2d 908 (1969), or reports
that the vehicle had suspiciously been parked late at night in front of a
vacant lot, see Commonwealth v. Wren,
391 Mass. 705, 463 N.E.2d 344 (1984) (characterizing the case a "close
one"), or reports of any observations late at night of a vehicle cruising
slowly near a closed commercial area where numerous break‑ins had
occurred, see Commonwealth v. Montgomery,
23 Mass.App.Ct. 909, 499 N.E.2d 853 (1986). The situation here is unlike those cases
where an anonymous tip contains some specific information about the suspect
possessing weapons or contraband, see
Commonwealth v. McCauley, 11 Mass.App.Ct. 780,
781, 419 N.E.2d 1072 (1981), and
Commonwealth v. Modica, 24 Mass.App.Ct.
334, 338 & n. 2, 508 N.E.2d 882 (1987);
or where the caller describes the vehicle and predicts its destination
as part of a criminal enterprise,
Commonwealth v. Reed, 23 Mass.App.Ct. 294, 295‑297,
502 N.E.2d 147 (1986); Commonwealth v. Butterfield, 44 Mass.App.Ct. 926, 691 N.E.2d 975 (1998) (known citizen
caller tips police who corroborate crime report by following tire tracks in
snow from scene of crime). As the
Supreme Judicial Court stated in
Commonwealth v. Lyons, 409 Mass. at 21‑22, 564 N.E.2d 390, [45 Mass.App.Ct.
243] "[a]nyone
can telephone the police for any reason.
Thus, some specificity of nonobvious facts which
show familiarity with the suspect or specific facts which predict behavior is
central to reasonable suspicion." Ibid.
The
Commonwealth relies on Commonwealth v.
Wren, supra, in which the Supreme Judicial Court upheld an investigatory
stop based on police corroboration of nonincriminating
details provided by a resident's tip concerning the occupant of a suspicious
vehicle who was said to be "casing" the neighborhood. There the information came from a citizen
informant who worked as a special officer for the local police department and
who had known the investigating officer "through their work on the police
force for about six years." Id. at 706, 463 N.E.2d 344. Of equal importance, the officer knew that
the tip was based on the individual's personal observation of the suspicious
activity. The individual even
accompanied the police officer on his investigation. Here, the motion judge excluded evidence of
exactly what the dispatcher told the investigating officer. In addition to the communication of the
license place number, the record establishes only that the investigating
officer was told that "the occupant [of the Monte Carlo vehicle] had gone
to the door of one of the dwellings to shovel snow." Nothing more appears in the record of the
motion hearing.
Moreover,
no additional information came to the officer's attention upon following the
car. Contrast Commonwealth v. Johnson, 6 Mass.App.Ct.
944, 946, 382 N.E.2d 1124 (1978). Nor
was the defendant engaged in any suspicious activity before or after the stop.
Commonwealth v. O'Connor, 21 Mass.App.Ct.
404, 406, 487 N.E.2d 238 (1986).
Reasonable suspicion to justify the stop did not exist.
[7] Had
the motion to suppress been allowed before or during trial, the Commonwealth's
case as presented would have lacked essential proof. Accordingly, the defendant's motion for a
required finding of not guilty should have been allowed. The judgment is reversed; the finding of guilty is set aside, and judgment shall enter for the defendant.
Commonwealth v. Silva, 366 Mass. at 410, 318 N.E.2d 895.
Commonwealth v. Alvarez, 44 Mass.App.Ct.
531, 536, 692 N.E.2d 106 (1998).
Judgment reversed.
Finding set aside.
Judgment for the defendant.
(FN1.) The docket reveals that the motion
judge made the following entry:
"Finding of fact is that 'stop' was reasonable based on time and
circumstances on complaint of citizen."