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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Commonwealth v. DePiero (Lawyers Weekly No. 11-014-15)
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-572 Appeals Court COMMONWEALTH vs. JOHN C. DEPIERO. No. 13-P-572. Middlesex. January 10, 2014. – February 19, 2015. Present: Kantrowitz, Vuono, & Sullivan, JJ. Constitutional Law, Investigatory stop, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress. 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 Leoney, J., and the case was heard by Joseph W. Jennings, III, J. Jane D. Prince (Randy S. Chapman with her) for the defendant. Radu Brestyan, Assistant District Attorney, for the Commonwealth. VUONO, J. Following a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (second offense). On appeal, he principally contends that the motion judge erred in denying his motion to suppress evidence obtained during what he claims was an unlawful investigatory stop of his automobile.[1] The stop was prompted by an anonymous telephone call concerning a “drunk” driver. We conclude that the motion to suppress was properly denied and we affirm the judgment.[2] Facts.[3] At approximately 2:00 A.M. on August 11, 2011, an unidentified man made a 911 telephone call which was received by a State police emergency operator in Framingham. After informing the caller that the 911 line is recorded, the operator asked the caller, “[W]hat is your emergency?” The caller replied, “Just a call, you 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 operator immediately transferred the call to the State police barracks in Brighton. The caller stayed on the line and then spoke to a dispatcher who identified himself as Trooper Usom. The motion judge found that the caller provided the color, make, and license plate number of the vehicle in question to Trooper Usom.[4] Trooper Usom then initiated the following broadcast: “H5, H5 patrols, one call erratic operation Memorial Drive westbound passing the Weeks Footbridge on MA PC 7785AN . . . [t]hat vehicle comes out of Belmont, the owner is on probation for drunk driving.” In a subsequent broadcast, Trooper Usom provided the address for the registered owner of the motor vehicle.[5] State police […]