SJC REJECTS HOLDING OF NAVARETTE V. CALIFORNIA, BUT UPHOLDS STOP BASED ON CORROBORATING INFORMATION

In Commonwealth v. Depiero (2016), the SJC ruled that the judge properly denied the defendant’s motion to suppress evidence obtained during the warrantless stop of his motor vehicle in response to an anonymous 911 call.   The anonymous 911 caller told the operator that “‘[y]ou 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 contents of the call was relayed to Trooper Dwyer,  along with “the make, color, and registration number for the vehicle,” “the Belmont address to which the vehicle was registered, and the fact that the owner of the vehicle in question was ‘on probation for drunk driving.’” Upon receiving that information, Dwyer drove to the defendant’s home. The defendant drove up a few minutes later and pulled into the driveway. Dwyer, who “did not see the defendant operate his vehicle in an illegal or unreasonable manner,” “turned into the driveway behind the defendant and activated his cruiser’s emergency lights.” After the defendant’s arrest for OUI, he filed a motion to suppress that was denied.  “Subsequent to the judge’s ruling … the United States Supreme Court released its decision in Navarette v. California, 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 the relevant circumstances that, taken together, [can justify an] officer’s reliance on the information reported in the 911 call.’ The issues before the SJC  was 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, the Commonwealth of Massachusetts “would afford weight similar to that afforded by the Supreme Court to the reliability of anonymous 911 telephone callers.”

In its decision, the SJC “declined to endorse the Supreme Court’s reliance on the use of the 911 system as an independent indicium of reliability for an anonymous tip.” The SJC agreed with the view expressed by the “dissenting Justices in Navarette … that 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 behavior.’”  The  the SJC stated that although “the caller … was aware that his call was being recorded, there is no way to know … 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.” Still, the SJC ultimately concluded that “the information gleaned from the anonymous call …, corroborated by other information, was sufficiently reliable to warrant a finding that the trooper had reasonable suspicion to stop the defendant’s vehicle.” The Court cited (1) the timing of the defendant’s arrival at his home, which “corroborated the location of the [defendant’s vehicle] at the time of the 911 call”; and (2) the fact (known by Dwyer) that the defendant was on probation for OUI.

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