Appeals Court of Massachusetts,
Bristol.
COMMONWEALTH
v.
Shawn MEDEIROS.
No. 97-P-414.
Argued Jan. 12, 1998.
Decided July 28, 1998.
Defendant was convicted, following bench trial in the New Bedford Division of
the District Court Department, John A. Markey and John B. Leonard, JJ., of
operating motor vehicle after his operator's license had been suspended.
Defendant appealed. The Appeals Court, Greenberg, J., held that: (1) motion
court's findings of fact on motion to suppress were inadequate; (2) inadequacy
did not require remand for additional findings; (3) arresting officer lacked
reasonable suspicion justifying stop of defendant's vehicle; and (4) denial of
defendant's motion for required finding of not guilty required reversal and
setting aside of verdict.
Judgment reversed; finding set aside; judgment for defendant.
Improper denial of defendant's motion to suppress required reversal and setting
aside of verdict, where Commonwealth's case as presented would have lacked
essential proof had motion been granted and court would have been required to
grant defendant's motion for required finding of not guilty.
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*240
Donald A. Brisson, New Bedford, for defendant.
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]
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The motion judge made inadequate findings of fact. [FN1]
Remand for additional findings is unnecessary here because the facts are
uncontested. See
Commonwealth v. Prevost, 44 Mass.App.Ct. 398, 399, 691 N.E.2d 592 (1998).
See also Smith, Criminal Practice and Procedure § 1347 (2d ed.1983 & Supp.1998).
We have reviewed the record to see if the findings necessary to the judge's
ruling are supported by the evidence. See
Commonwealth v. Williams, 378 Mass. 217, 224 n. 4, 391 N.E.2d 1202
(1979).
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."
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 *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
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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,
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"[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, **140
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.