Commonwealth v. Moore (Lawyers Weekly No. 10-006-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11857 COMMONWEALTH vs. LAWRENCE MOORE. Bristol. October 6, 2015. – January 11, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Parole, Search and seizure, Burden of proof, Reasonable suspicion. Search and Seizure, Expectation of privacy, Presumptions and burden of proof, Reasonable suspicion. Practice, Criminal, Parole, Motion to suppress. Controlled Substances. Indictment found and returned in the Superior Court Department on April 25, 2013. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Rachel W. van Deuren, Assistant District Attorney, for the Commonwealth. Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. CORDY, J. In October, 2011, the New Hampshire parole board issued a certificate of parole to the defendant, Lawrence Moore, who was serving a sentence of from two and one-half to ten years for assault with a firearm. The defendant’s parole was transferred to the Commonwealth in May, 2012. On November 16, 2012, the defendant’s parole officer and others searched the defendant’s apartment without a warrant and seized seventeen “twists” of “crack” cocaine in the defendant’s bedroom drawer, as well as a digital scale and a gun lock. The defendant was indicted for possession of cocaine with intent to distribute, in violation of G. L. c. 94C, § 32A (c).[1] He filed a motion to suppress the evidence seized from his home, arguing that the search was unconstitutional under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.[2] After a hearing, the motion judge issued a written order allowing the defendant’s motion to suppress, holding that, while the search did not violate the Fourth Amendment, it was barred under art. 14. The motion judge concluded that art. 14 offers the same protections for parolees as it does for probationers, and, therefore, searches of a parolee’s residence must be supported by both reasonable suspicion and either a search warrant or a traditional exception to the search warrant […]
Khalsa, et al. v. Sovereign Ban, N.A. (Lawyers Weekly No. 11-005-16)
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 14-P-1898 Appeals Court GURU JIWAN SINGH KHALSA & another[1] vs. SOVEREIGN BANK, N.A. No. 14-P-1898. Suffolk. November 2, 2015. – January 11, 2016. Present: Milkey, Carhart, & Massing, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage. Negotiable Instruments, Note. Agency, What constitutes. Civil action commenced in the Superior Court Department on January 8, 2013. The case was heard by Robert B. Gordon, J., on motions for summary judgment. James L. Rogal for the defendant. Leonard M. Singer for the plaintiffs. MASSING, J. To effect a valid foreclosure sale, the foreclosing mortgage holder must also hold the underlying note or be acting on behalf of the note holder. Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012) (Eaton). This appeal requires us to consider how a mortgagee may show that it is acting “as the authorized agent of the note holder,” id. at 586, for summary judgment purposes. On cross motions for summary judgment, a judge of the Superior Court judge entered a declaratory judgment in favor of the plaintiff borrowers, Khalsa and Kaur, and against the defendant mortgagee, Sovereign Bank, N.A. (Sovereign), declaring that the foreclosure sale of the plaintiffs’ residence was void because Sovereign had failed to show that it was acting as the authorized agent of the note holder, Federal Home Loan Mortgage Corporation (Freddie Mac). Sovereign appeals. Because the summary judgment materials create a genuine issue of fact concerning Sovereign’s authorization to foreclose on Freddie Mac’s behalf, we vacate the judgment and remand the case for further proceedings. Background. On April 2, 2008, the plaintiffs executed a promissory note payable to Sovereign in the original principal amount of $ 274,000 to finance the purchase of their home in Millis. To secure the note, the plaintiffs granted Sovereign a mortgage on the property. Shortly thereafter, Freddie Mac purchased the note from Sovereign, retaining Sovereign as servicer of the note and mortgage. On April 22, 2011, Sovereign notified the plaintiffs that they were in default on their loan for nonpayment. Sovereign held a foreclosure sale on January 18, 2013. Although Sovereign held itself out as the “Lender” in the default notice, the note had been indorsed in blank, and at the time of the sale, Freddie Mac had physical possession of the note. See G. L. c. 106, […]
Commonwealth v. Ubilez (Lawyers Weekly No. 11-004-16)
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 14-P-1108 Appeals Court COMMONWEALTH vs. MICHAEL UBILEZ. No. 14-P-1108. Middlesex. October 7, 2015. – January 7, 2016. Present: Katzmann, Rubin, & Wolohojian, JJ. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Motor vehicle, Probable cause, Search incident to lawful arrest, Inevitable discovery. Probable Cause. Motor Vehicle, Registration, Operation. Receiving Stolen Goods. Complaint received and sworn to in the Woburn Division of the District Court Department on January 8, 2010. A pretrial motion to suppress evidence was heard by Paul M. Yee, J., and the case was tried before Timothy H. Gailey, J. J. Gregory Batten for the defendant. David Bastian, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. At issue is the search of a vehicle driven by the defendant, which was reported to contain a stolen cellular telephone (cell phone). The defendant makes two arguments on appeal with respect to the search. First, he contends that the police did not have probable cause to believe he had committed a crime at the moment he was arrested and therefore there was no valid search incident to that arrest. The two crimes at issue are operating a motor vehicle with a suspended registration and receiving stolen property with a value exceeding $ 250. Second, he argues that the inevitable discovery exception does not apply. Because we conclude that the inevitable discovery exception applies, we need not consider whether the search was also justified as incident to the defendant’s arrest. However, because there is a split of opinion among trial court decisions and the issue has not been addressed by the appellate courts, we address whether the misdemeanor of operating a motor vehicle with a suspended registration is an arrestable offense, and the circumstances in which it is so. We conclude that there is no statutory authority to arrest an individual for operating a motor vehicle with a revoked[1] registration but that, under circumstances not present here, an arrest may be made under the established common law rule pertaining to warrantless arrests for misdemeanors. As to the defendant’s second argument, we conclude that, even accepting that an excessive show of force was employed by the police in the circumstances presented, the inevitable discovery exception applies. In addition, we reject the defendant’s argument that the evidence was insufficient to […]
Beacon Towers Condominium Trust v. Alex (Lawyers Weekly No. 10-005-16)
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 SJC-11880 BEACON TOWERS CONDOMINIUM TRUST vs. GEORGE ALEX. Suffolk. October 5, 2015. – January 7, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Arbitration, Attorney’s fees. Civil action commenced in the Superior Court Department on November 14, 2013. The case was heard by Frances A. McIntyre, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. J. Mark Dickison (Ryan A. Ciporkin with him) for the defendant. Mark A. Rosen for the plaintiff. GANTS, C.J. Under G. L. c. 251, § 10, attorney’s fees may not be awarded in arbitration proceedings “[u]nless otherwise provided in the agreement to arbitrate.” The issue presented in this case is whether an arbitration panel applying the commercial arbitration rules of the American Arbitration Association (AAA rules), having found that the arbitration agreement did not authorize an award of attorney’s fees, nonetheless may award attorney’s fees based on its finding that “substantially all of the defenses were wholly insubstantial, frivolous and not advanced in good faith.” The appellant, George Alex, contends that the arbitration panel may award attorney’s fees in these circumstances for either of two reasons: first, because AAA rule 47(a) [1] authorizes an arbitrator to “grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties”; or second, because AAA rule 47(d)(ii) provides that an arbitrator may award attorney’s fees if “it is authorized by law,” and the award of attorney’s fees in these circumstances is authorized by G. L. c. 231, § 6F. We conclude that an arbitrator lacks the authority to award attorney’s fees based on a finding that all the claims or defenses were wholly insubstantial, frivolous, and not advanced in good faith unless the parties have agreed that an arbitrator may award attorney’s fees in these circumstances. We therefore affirm the Superior Court judge’s order vacating the arbitration panel’s award of attorney’s fees. Background. The appellee, Beacon Towers Condominium Trust (trust), is the unit owners’ organization for the Beacon Towers Condominium (condominium), an entity created pursuant to G. L. c. 183A, § 17. The condominium is comprised of three adjacent buildings in the Back Bay section of Boston, with the addresses of 479, 481, and 483 Beacon Street. The board of […]
Erickson v. Clancy Realty Trust, et al. (Lawyers Weekly No. 11-003-16)
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 15-P-50 Appeals Court ROBERT J. ERICKSON vs. CLANCY REALTY TRUST & others.[1] No. 15-P-50. Barnstable. November 12, 2015. – January 6, 2016. Present: Cohen, Grainger, & Wolohojian, JJ. Way, Public: discontinuance. Estoppel. Civil action commenced in the Superior Court Department on March 5, 2010. The case was heard by Christopher J. Muse, J. James B. Stinson for the plaintiff. Harry R. Thomasson for the defendants. GRAINGER J. Plaintiff Robert J. Erickson appeals from a declaratory judgment in Superior Court finding that Old County Road (road) in Eastham was discontinued by a 1903 Superior Court decree pursuant to “An Act To Promote The Abolition Of Grade Crossings,” Chapter 428 of the Acts of 1890, as amended, St. 1891, c. 123 (act). The defendants are abutters or nearby landowners in Eastham. On appeal, the plaintiff argues that the road was not discontinued by the 1903 Superior Court decree and that it still operates as a public way. 1. Background. The facts are uncontested. The plaintiff’s property is a parcel bounded on the northwest by the road, which extends from Route 6, a State highway, to an area past the plaintiff’s property. The Cape Cod Rail Trail, formerly the New York, New Haven & Hartford Railroad (railroad), lies to the east of the plaintiff’s property, and to the south are parcels owned by the Sverids. The plaintiff claims that the road is the only means of accessing his property; otherwise, it is landlocked. The road was first laid out as a public way on June 19, 1721. It is shown on various maps throughout the eighteenth and nineteenth centuries. The path of the road crossed over to the eastern side of the railroad in Eastham, and crossed back to the western side of the railroad in Wellfleet — a total of two grade crossings. In 1890, the act was passed to promote the abolition of such grade crossings and authorized the Superior Court, by decree, to confirm a recommendation by a neutral commission to extinguish a specified portion of an existing public way and to establish an alternate route that avoided any grade crossings. See St. 1890, c. 428, § 4. The parties agree that the commission’s report and a subsequent Superior Court decree[2] (decree) did so. 2. Discussion. The question presented is whether […]
Merrimack College v. KPMG LLP (Lawyers Weekly No. 11-002-16)
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 15-P-122 Appeals Court MERRIMACK COLLEGE vs. KPMG LLP. No. 15-P-122. Suffolk. November 2, 2015. – January 6, 2016. Present: Milkey, Carhart, & Massing, JJ. Accountant. Negligence, Accountant. Arbitration, Arbitrable question, Appropriateness of judicial proceedings. Contract, Arbitration. Civil action commenced in the Superior Court Department on June 30, 2014. A motion to compel arbitration was heard by Janet L. Sanders, J. Ira M. Feinberg, of New York (Christopher H. Lindstrom with him) for the defendant. T. Christopher Donnelly (Kelly A. Hoffman with him) for the plaintiff. MILKEY, J. The defendant, KPMG LLP (KPMG), is an accounting firm that performed annual audits for the plaintiff, Merrimack College (Merrimack). In the underlying action, Merrimack alleges that KPMG committed malpractice when it failed to detect serious financial irregularities that occurred in Merrimack’s financial aid office during fiscal years 1998 through 2004. Based on a dispute resolution provision included in a contract the parties executed for fiscal year 2005, KPMG argues that Merrimack waived its right to sue KPMG regarding services it had provided in prior years and was required to arbitrate those claims. In addition, KPMG maintains that whether Merrimack’s pre-2005 claims are subject to compulsory arbitration must be resolved by arbitration. In a thoughtful decision, a Superior Court judge rejected such arguments and denied KPMG’s motion to compel arbitration. We affirm. Background. The essential facts are undisputed. For the fiscal years at issue in the malpractice action, Merrimack had hired KPMG through a succession of separate annual service agreements. Each such agreement took the form of a letter that KPMG sent to Merrimack that was then countersigned by Merrimack. None of the annual agreements from 1998 through 2004, referred to by the parties as “engagement letters,” makes any mention of arbitration as an available (much less mandatory) means for the parties to resolve disputes that might arise between them. In claiming that Merrimack’s malpractice action nevertheless is subject to binding arbitration, KPMG is relying on the engagement letter that the parties executed for fiscal year 2005. The 2005 agreement spelled out specific auditing services that KPMG would provide to Merrimack during that year. Unsurprisingly, in laying out KPMG’s affirmative obligations, the 2005 engagement letter is a forward-looking document, referring, for example, to the audit report that KPMG “will issue” in […]
Downey, et al. v. Chutehall Construction Co. (Lawyers Weekly No. 11-001-16)
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 14-P-1062 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD. No. 14-P-1062. Suffolk. September 14, 2015. – January 6, 2016. Present: Cypher, Green, & Hanlon, JJ. Consumer Protection Act, Unfair or deceptive act, Waiver. State Building Code. Waiver. Practice, Civil, Consumer protection case, Summary judgment, Instructions to jury, Waiver. Civil action commenced in the Superior Court Department on July 2, 2010. Motions for summary judgment were heard by Judith Fabricant, J., and the case was tried before Thomas A. Connors, J. Alicia L. Downey for the plaintiffs. John D. Fitzpatrick for the defendant. HANLON, J. After a trial, the jury returned a verdict for the defendant, Chutehall Construction Co., Ltd. (Chutehall). The plaintiffs, Christopher and Mairead Downey, appeal from the resulting judgment. Their appeal presents a narrow issue — whether a contractor’s potential liability for a violation of the relevant building code, which, pursuant to G. L. c. 142A, § 17(10), constitutes a per se G. L. c. 93A violation, is waived when a homeowner requests that the work be done in a manner that results in the code violation.[2] We agree with the Downeys that, at least in the circumstances of this case, an oral waiver of building code requirements by the homeowner does not preclude the contractor’s liability for a building code violation — and the resultant c. 93A violation — particularly where a violation carries potential public safety consequences. Background. The jury could have found the following facts. The Downeys hired Chutehall in 2005 to replace the roof and a roof deck on their townhouse in the Beacon Hill section of Boston. It is undisputed that the building code permits no more than two layers of roofing on the building. See 780 Code Mass. Regs. § 1512.3 (1997). The original proposal that Chutehall submitted to the Downeys, as well as the final bill, included a line item for stripping off the existing roof system. In fact, however, Chutehall did not strip the roof, but instead installed a new rubber membrane over the existing roof. Sharply disputed at trial was whether Christopher Downey represented to Chutehall that there was only one layer of roofing at the time of the work; refused to permit Chutehall to strip the existing layers from the roof; refused to permit Chutehall to do test cuts in the roof to determine […]
Regency Transportation, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-004-16)
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 SJC-11873 REGENCY TRANSPORTATION, INC. vs. COMMISSIONER OF REVENUE. Suffolk. November 5, 2015. – January 6, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Taxation, Sales and use tax, Abatement. Constitutional Law, Taxation, Commerce clause, Interstate commerce. Interstate Commerce. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Matthew A. Morris (Richard L. Jones with him) for the taxpayer. Marikae G. Toye (Joseph J. Tierney with her) for the Commissioner of Revenue. Elizabeth J. Atkinson, of Virginia, & Andrew J. Fay & Patrick E. McDonough, for Massachusetts Motor Transportation Association & others, amici curiae, submitted a brief. CORDY, J. Regency Transportation, Inc. (Regency), appeals from a decision of the Appellate Tax Board affirming in part the denial of an abatement of the motor vehicle use tax assessed against it under G. L. c. 64I, § 2. We granted Regency’s application for direct appellate review to decide whether an unapportioned use tax imposed on Regency’s interstate fleet of vehicles violates the commerce clause of the United States Constitution. For the reasons discussed herein, we conclude it does not.[1] 1. Background. The essential facts are not disputed. Regency is a Massachusetts S corporation that operates a freight business with terminals in Massachusetts and New Jersey. Regency is licensed by the Interstate Commerce Commission as an interstate carrier to operate a fleet of tractors and trailers. The Regency fleet carries and delivers goods throughout the eastern United States. Throughout the tax periods at issue, Regency maintained its corporate headquarters in Massachusetts, as well as four warehouses and a combined maintenance facility and terminal location which it used for repairing and storing vehicles in its fleet. Regency also operated five warehouses in New Jersey and two combined maintenance facility and terminal locations there. Regency performed thirty-five per cent of the maintenance and repair work on its fleet at its Massachusetts locations and thirty-five per cent of the work at its New Jersey locations, with the remainder being performed by third parties. All vehicles in the Regency fleet entered into Massachusetts at some point during the tax periods at issue, and during these same periods Regency employed between sixty-three and eighty-three per cent of its workforce in the Commonwealth. […]
Categories: News Tags: 1000416, Commissioner, Inc., Lawyers, Regency, Revenue, Transportation, Weekly
Commonwealth v. Forlizzi (Lawyers Weekly No. 10-003-16)
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 SJC-11747 COMMONWEALTH vs. david forlizzi. January 5, 2016. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Disclosure of identity of informer, Appeal by Commonwealth. Witness, Police informer. The Commonwealth appeals from the judgment of a single justice of this court denying its petition for relief, pursuant to G. L. c. 211, § 3, from an interlocutory order of the Superior Court. We affirm. In the underlying Superior Court case, the respondent, David Forlizzi, sought and obtained an order requiring the Commonwealth to disclose whether a witness cooperating against him previously has served as a confidential informant or cooperating witness. The Superior Court judge concluded that prior cooperation by the witness could be relevant to demonstrating the witness’s bias or hope of benefit or reward. The single justice considered the judge’s order and held that “[n]o abuse of discretion is evident in the judge’s decision that disclosure is necessary and material to the defense in this case. The informant is a percipient witness whose testimony will form a key part of the Commonwealth’s case at trial.” Concluding that the Commonwealth failed to demonstrate that relief was warranted, the single justice denied the petition. This court “rarely allow[s] Commonwealth appeals of interlocutory matters under [its] supervisory powers. . . . We will review interlocutory matters in criminal cases only when ‘substantial claims’ of ‘irremediable’ error are presented . . . and only in ‘exceptional circumstances’ . . . where ‘it becomes necessary to protect substantive rights” (citations omitted). Commonwealth v. Cook, 380 Mass. 314, 319-320 (1980). See Commonwealth v. Richardson, 454 Mass. 1005, 1005-1006 (2009). Although exceptional circumstances sometimes have been demonstrated in cases involving the disclosure of information relating to confidential informants and witnesses, see, e.g., Commonwealth v. Jordan, 464 Mass. 1004 (2012) (disclosure of informant’s identity not material to defense), this is not such a case. We employ our power of superintendence sparingly and “[n]o party, including the Commonwealth, should expect that the court will exercise its extraordinary power of general superintendence lightly.” Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1 (2009). In this case, the single justice properly could have denied review because the Commonwealth failed to demonstrate the presence of exceptional circumstances. See Commonwealth v. Charles, 466 Mass. 63, 88-89 (2013) (systemic issues affecting proper administration of judiciary warranted review under […]
Commonwealth v. Depiero (Lawyers Weekly No. 10-002-16)
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 SJC-11893 COMMONWEALTH vs. JOHN C. DEPIERO. Middlesex. November 3, 2015. – January 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Investigatory stop, Reasonable suspicion. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Motor Vehicle, Operating under the influence. Evidence, Anonymous statement, Corroborative evidence. Complaint received and sworn to in the Cambridge Division of the District Court Department on August 11, 2011. A pretrial motion to suppress evidence was heard by Antoinette E. McLean Leony, J., and the case was heard by Joseph W. Jennings, III, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jane Prince (Randy S. Chapman with her) for the defendant. Casey E. Silvia, Assistant District Attorney, for the Commonwealth. Daniel K. Gelb, for National Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. Chauncey B. Wood, Dahlia S. Fetouh, Nancy A. Dinsmore, & Benjamin R. Cox, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. In January, 2013, after a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (second offense) in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, he argues that the denial of his motion to suppress evidence obtained during a warrantless stop of his vehicle was error. The stop, made by State police Trooper John Dwyer, was prompted by the receipt of an anonymous 911 call concerning an apparent drunk driver traveling on Memorial Drive in Cambridge. The defendant claimed that the stop was neither supported by reasonable suspicion nor made pursuant to an ongoing emergency. After a hearing, a judge denied the defendant’s motion to suppress, concluding that Dwyer “had reasonable suspicion to conduct an investigatory stop.” The judge reasoned that “[t]he 911 call was from an ordinary citizen — not an informant — who had witnessed a motor vehicle infraction, namely, a motor vehicle driving erratically on the roadway.”[1] The Appeals Court affirmed the denial of the defendant’s motion to suppress, but on different grounds. Commonwealth v. Depiero, 87 Mass. App. Ct. 105, 106 (2015). The Appeals Court concluded that the information bore sufficient indicia of reliability because the unidentified caller’s observations were […]