Commonwealth v. Bernard (Lawyers Weekly No. 11-009-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑682 Appeals Court COMMONWEALTH vs. MICHAEL BERNARD. No. 13‑P‑682. Essex. November 7, 2013. ‑ February 7, 2014. Present: Wolohojian, Agnes, & Sullivan, JJ. Motor Vehicle, Registration. Practice, Criminal, Motion to suppress, Findings by judge. Evidence, Photograph, Credibility of witness. Complaint received and sworn to in the Lawrence Division of the District Court Department on June 10, 2011. A pretrial motion to suppress evidence was heard by Debra Shopteese, J. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Ronald E. DeRosa, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. WOLOHOJIAN, J. The Commonwealth appeals from a District Court judge’s ruling allowing the defendant’s motion to suppress. At issue is a State trooper’s decision, based on G. L. c. 90, § 6, to stop a vehicle because it had a tinted plastic cover over its rear license plate. The statute requires that “number plates shall be kept clean with the numbers legible and shall not be obscured in any manner by the installation of any device obscuring said numbers.” G. L. c. 90, § 6, as appearing in St. 1968, c. 293. After briefing and an evidentiary hearing, which included introduction by the Commonwealth of a color photograph showing the license plate and its cover, the judge found that the license plate was clear, with all numbers and letters visible and that “[a]s such, the license plate was not obstructed when the defendant was stopped pursuant to” G. L. c. 90, § 6. Because there was no other basis for the stop, the judge allowed the defendant’s motion to suppress. We affirm. We set out the judge’s findings and rationale: “Based on the credible evidence presented at an evidentiary hearing held on July 17, 2012, the Defendant’s motion is allowed and the Court finds as follows: “On June 9, 2011, while on a routine patrol in a marked cruiser, State Trooper Sweeney[] observed the Defendant operating a motor vehicle on Route 495 at approximately 4:40 p.m. “The operator drove appropriately and no moving violations were observed. “Trooper Sweeney observed a plastic cover over the rear license plate of the Defendant’s motor […]