Commonwealth v. Manha , 479 Mass. 44 ( 2018 )

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revision and are superseded by the advance sheets and bound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-12342
COMMONWEALTH vs. ANTHONY F. MANHA.
Suffolk. December 5, 2017. - February 28, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Constitutional Law, Search and seizure, Investigatory stop,
Reasonable suspicion. Search and Seizure, Reasonable
suspicion, Threshold police inquiry, Protective sweep.
Threshold Police Inquiry.
Complaint received and sworn to in the South Boston
Division of the Boston Municipal Court Department on July 10,
2012.
A pretrial motion to suppress evidence was heard by Ernest
L. Sarason, Jr., J., and following transfer to the Central
Division of the Boston Municipal Court Department, the case was
tried before Tracy-Lee Lyons, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Leah Hook for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
2
BUDD, J. Here we address the authority of the police to
stop and perform a Terry-type search of a motor vehicle after an
anonymous 911 caller reported that the driver of that vehicle
threatened the caller, a fellow motorist, with a gun. The
driver, defendant Anthony F. Manha, appeals from a conviction of
assault with a dangerous weapon. The Appeals Court affirmed in
an unpublished memorandum and order pursuant to its rule 1:28.
Commonwealth v. Manha, 91 Mass. App. Ct. 1105 (2017). We
granted the defendant's application for further appellate
review. He claims that the police lacked probable cause to stop
him and that, therefore, the pellet gun found subsequently in
his vehicle should have been suppressed. We conclude that, in
these circumstances, the information that the police possessed
gave them reasonable suspicion to stop and perform a protective
sweep of the defendant's motor vehicle, and that, given the
officers' safety concerns, reasonable suspicion was all that was
required. We therefore affirm the conviction.
Background. We present the facts as found by the motion
judge. On July 9, 2012, while on patrol, Trooper John Guest of
the State police received a radio call of a then-ongoing 911
call from a motorist regarding a road rage incident. According
to the 911 caller, an individual in another motor vehicle had
pointed a gun at her as she traveled southbound on Route 93 in
Boston. She described the gunman as a white male in his forties
3
who was wearing glasses. She further provided a description of
his vehicle, a gray Jeep Cherokee, along with its registration
number, location, and direction of travel.
Based on this information, Guest located the vehicle and
followed it for a few miles (observing no traffic violations or
other criminal activity) before signaling to the driver to stop.
Guest and two other troopers who had since arrived drew their
weapons and ordered the driver, the defendant, to get out of the
vehicle. A patfrisk of the defendant's person revealed no
weapons. The troopers placed the defendant in a police vehicle
and performed a protective sweep of the Jeep. In the rear area
of the vehicle they discovered a black case. Inside they found
a pellet gun in the shape of a hand gun.
Discussion. In our review of the denial of the defendant's
motion to suppress, we accept the motion judge's factual
findings unless clearly erroneous, and independently apply the
law to those findings to determine whether actions of the police
were constitutionally justified. See Commonwealth v. Molina,
467 Mass. 65, 72 (2014); Commonwealth v. Wilson, 441 Mass. 390,
393 (2004).
1. Reasonable suspicion for stop. To perform an
investigatory stop of a vehicle, the police require "reasonable
suspicion, based on specific, articulable facts and inferences
therefrom, that an occupant . . . had committed, was committing,
4
or was about to commit a crime." Commonwealth v. Anderson, 461
Mass. 616, 621, cert. denied, 568 U.S. 946 (2012), quoting
Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). In this
case, the caller reported that another motorist pointed a gun at
the caller while she was traveling on a busy highway.
Where an officer receives an order to stop a vehicle based
on the information received via a police radio broadcast, the
Commonwealth must show the particularity of the vehicle's
description and indicia of reliability of the broadcast
information. Anderson, 461 Mass. at 621. Here, the broadcast
contained sufficient particularity of the defendant's vehicle's
description (including its make, model, color, and registration
number) and of the gender and age of the driver. See
Commonwealth v. Depiero, 473 Mass. 450, 454 (2016) (motor
vehicle's make, color, and registration number); Anderson, supra
at 621 (motor vehicle type, color, and registration number, and
gender of occupants).
To determine whether the transmitted information provided
by a 911 caller is sufficiently reliable to support reasonable
suspicion, we apply the two-pronged Aguilar-Spinelli test; that
is, we look to the caller's basis for knowledge as well as the
veracity of the source of the information. Depiero, 473 Mass.
at 454. See Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964).
5
In this case, the basis of knowledge test is satisfied
where the 911 caller reported her firsthand observations (and
was, in fact, the victim of the alleged assault). See Anderson,
461 Mass. at 622; Commonwealth v. Alfonso A., 438 Mass. 372,
374-375 (2003).
Establishing the veracity prong where an anonymous 911
caller is involved is less straightforward, as no evidence
regarding his or her past reliability or honesty typically will
be available. Anderson, supra at 622. See Commonwealth v.
Depina, 456 Mass. 238, 243-244 (2010) ("In all but the most
extraordinary circumstances, the Commonwealth will be unable to
demonstrate that an anonymous source has a prior history of
providing accurate information . . ."). Nevertheless, the
reliability of such a caller can be demonstrated in other ways.
For example, "[w]e have . . . suggested that the
reliability of citizen informants who are identifiable, but may
not have been identified, is deserving of greater consideration
than that of truly anonymous sources." Commonwealth v. Costa,
448 Mass. 510, 515 (2007). The same is true for callers who are
aware that their calls are being recorded and that their
telephone numbers can be traced.1 Id. at 517.
1
We have previously declined to attribute veracity to all
anonymous 911 callers based upon the fact that current 911-call
technology allows identification of callers. Commonwealth v.
Depiero, 473 Mass. 450, 455 (2016). This is because it is the
6
Even where a 911 telephone call is anonymous, the
Commonwealth can still establish a caller's reliability "through
independent corroboration by police observation or investigation
of the details of the information provided by the caller" prior
to the stop being initiated. Anderson, 461 Mass. at 623.
Additionally, the Commonwealth may establish the caller's
veracity by demonstrating that the caller "had just witnessed a
startling or shocking event, that the caller described the
event, and that the description of the event was made so quickly
in reaction to the event as reasonably to negate the possibility
that the caller was falsifying the description or was carrying
out a plan falsely to accuse another." Id. at 624.
Here, although the 911 caller testified at trial, she did
not testify at the hearing on the motion to suppress, and there
was no evidence provided regarding her identity or whether she
knew that she was identifiable to police.2 For this reason, we
must treat the caller as anonymous for the purposes of the
motion to suppress. Nevertheless, a combination of factors made
caller's belief of anonymity, not his or her actual anonymity,
that will predict his or her behavior. Id. Where a caller
believes he or she is anonymous, the risk of being criminally
charged with false reporting will not deter dishonest reports.
Id.
2
Where, as here, a 911 caller is identifiable, introducing
evidence of that fact at the hearing on the motion to suppress
would aid the motion judge in assessing the caller's
reliability. See Commonwealth v. Gomes, 458 Mass. 1017, 1018
n.5 (2010).
7
the call reliable under the reasonable suspicion analysis. See
Depiero, 473 Mass. at 454, quoting Commonwealth v. Mubdi, 456
Mass. 385, 396 (2010) (Aguilar-Spinelli test requires "less
rigorous showing" where required standard is reasonable
suspicion rather than probable cause).
First, the 911 caller was the alleged victim of the
assault, and stayed on the line while the information was
relayed to the trooper on patrol. A 911 caller who is willing
to stay on the line after reporting a crime perpetrated against
her is likely willing to be identified.3 A caller who is making
a false report is less likely to prolong his or her exposure to
charges by remaining on the line with law enforcement. Cf.
Anderson, 461 Mass. at 625 (discussing circumstances that make
call less likely to be false report).
Second, the trooper was able to corroborate details
provided by the caller prior to the stop, including the make,
model, color, and registration number of the vehicle, and the
driver's race and gender. See Costa, 448 Mass. at 518. See
also Depiero, 473 Mass. at 457.
3
The Commonwealth argues that the caller was reliable
because she witnessed and quickly described a startling event.
See Commonwealth v. Anderson, 461 Mass. 616, 624, cert. denied,
568 U.S. 946 (2012). However, because no recording of the call
or other evidence of the caller's demeanor was presented at the
motion hearing, the motion judge could not make any findings
regarding the caller's demeanor or whether the caller's
statement was an excited utterance.
8
Finally, the caller reported that a fellow motorist pointed
what appeared to be a firearm at her. "The gravity of the crime
and the present danger of the circumstances may be considered in
the reasonable suspicion calculus." Depina, 456 Mass. at 247.
Given the reported assault with a firearm, "the police would
have been remiss had they not conducted an investigative stop of
[the defendant's] vehicle." Anderson, 461 Mass. at 625. We
conclude that the police had reasonable suspicion to justify the
stop.
2. Seizure. The defendant argues that upon being stopped
by the police, he was illegally arrested and, therefore, the
pellet gun subsequently recovered should have been suppressed.
This argument has no merit because the actions that the troopers
took prior to discovering the pellet gun did not constitute an
arrest.4
Whether a stop is a seizure, requiring reasonable
suspicion, or an arrest, requiring probable cause, depends upon
the circumstances of each case. See Commonwealth v. Willis, 415
Mass. 814, 815 (1993) (considering "the highly fact-based
question[]" whether stop was arrest). Where a law enforcement
officer performs an investigatory stop, that officer's level of
intrusiveness must be in proportion to the officer's suspicion
4
The defendant does not claim error in the arrest that took
place after the pellet gun was discovered.
9
or concern for safety. Commonwealth v. Edwards, 476 Mass. 341,
347 (2017); Commonwealth v. Williams, 422 Mass. 111, 116 (1996);
J.A. Grasso & C.M. McEvoy, Suppression Matters Under
Massachusetts Law § 4-4 (2014). If an officer exceeds the scope
of an investigatory stop, the seizure becomes an arrest.
Willis, supra at 819. See Commonwealth v. Melo, 472 Mass. 278,
297-298 (2015) (discussing how police actions can cross line
from investigatory stop to arrest).
In this case, Guest learned that a driver had pointed what
appeared to be a firearm at another motorist while traveling on
the highway. Upon observing a vehicle that matched the
description he was given, he stopped the vehicle, and he, along
with other State troopers, drew their weapons, ordered the man
out of his automobile, and then placed him in a police vehicle.
Given the possible danger to themselves and to the public,
each step the troopers took was a "reasonably prudent protective
measure[]." Edwards, 476 Mass. at 347. See Commonwealth v.
Limone, 460 Mass. 834, 841 (2011); Commonwealth v. Bostock, 450
Mass. 616, 621 (2008) (exit orders permitted in investigatory
stops where police are acting "on reasonable suspicion of
criminal activity"); Williams, 422 Mass. at 117 (drawing service
weapons permitted where officer safety at risk). See also
Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001) (placing
suspect in police vehicle alone does not alone amount to arrest;
10
it may do so where suspect detained for disproportionate period
of time); Commonwealth v. Torres, 433 Mass. 669, 675-676 (2001)
(patfrisk for weapons requires same standard as exit orders).
Taking appropriate precautions does not transform an
investigatory stop into an arrest. Commonwealth v. Haskell, 438
Mass. 790, 794 (2003). Commonwealth v. Alvarado, 427 Mass. 277,
284 (1998).
3. Protective sweep. Finally, because the nature of the
suspected crime constituted an imminent threat to the safety of
the officers, the scope of the sweep of the defendant's vehicle
was reasonable and constitutionally justified.
"It is settled . . . that, in appropriate circumstances, a
Terry type of search may extend into the interior of an
automobile so long as it is limited in scope to a protective
end." Commonwealth v. Silva, 366 Mass. 402, 408 (1974). See
Alvarado, 427 Mass. at 284. "The issue as to what are the
permissible limits has to be decided on the facts of each case."
Silva, supra.In this case, the troopers had reason to believe not only
that the defendant possessed a gun, but that he pointed it at
another motorist on a busy highway. Thus, upon making the motor
vehicle stop, the officers were "warranted in the belief that
the[ir] safety . . . or that of other persons was in danger,"
and therefore appropriately extended the protective sweep into
11
the defendant's automobile (citations omitted). See
Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997). Cf.
Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498
U.S. 951 (1990) (mere possession of handgun insufficient to give
rise to reasonable suspicion of illegal activity).
Even where a protective sweep is permissible, it must be
limited in scope. A protective sweep of a vehicle "'must be
confined to the area from which the suspect might gain
possession of a weapon,' either because he is still within the
vehicle or because he is likely to return to the vehicle at the
conclusion of the officer's inquiry." Commonwealth v. Daniel,
464 Mass. 746, 752 (2013), quoting Commonwealth v. Almeida, 373
Mass. 266, 272 (1977), S.C., 381 Mass. 420 (1980). This area
includes the passenger compartment of a vehicle, as long as
police have "a reasonable belief based on 'specific and
articulable facts which . . . warrant' the officer in believing
that the suspect is dangerous." Commonwealth v. Sumerlin, 393
Mass. 127, 129 (1984), cert. denied, 469 U.S. 1193 (1985),
quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983).
A protective sweep of a passenger compartment may encompass
areas that are "generally 'reachable without exiting the
vehicle' . . . including areas that are 'hatches,' or rear
storage areas." United States v. Orth, 873 F.3d 349, 358-359
(1st Cir. 2017), quoting United States v. Allen, 469 F.3d 11, 15
12
(1st Cir. 2006), cert. denied, 552 U.S. 827 (2007).5 Here, the
pellet gun was found in the rear area of the vehicle. Taking
into account the report of a firearm and the safety threat, the
troopers were justified in performing a protective sweep of the
entire passenger compartment, including the rear of the vehicle.
See Orth, supra.
Where the police have reasonable suspicion that someone has
a gun and has threatened another with it, the protective sweep
may also extend to closed containers found within the vehicle's
passenger compartment. Long, 463 U.S. at 1050-1051. Searchable
containers may include "glove compartments, consoles, or other
receptacles . . . as well as luggage, boxes, bags, clothing, and
the like." Orth, 873 F.3d at 359, quoting New York v. Belton,
453 U.S. 454, 460-461 n.4 (1981), overruled on other grounds by
Davis v. United States, 564 U.S. 229 (2011). We have held that
a protective Terry sweep may include containers where
"particular features of the container, readily observable by the
5
In Allen, the United States Court of Appeals for the First
Circuit noted that in the case of Terry-type protective sweeps
"post facto scope of search inquiries into the actual
reachability of certain areas in a vehicle's passenger
compartment are squarely foreclosed." United States v. Allen,
469 F.3d 11, 15 (1st Cir. 2006), cert. denied, 552 U.S. 827(2007). Instead, the question is whether the search area was
"generally 'reachable without exiting the vehicle, without
regard to the likelihood in the particular case that such a
reaching was possible'" (emphasis added). Id., quoting United
States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994), cert.
denied, 514 U.S. 1074 (1995).
13
police, may make it apparent that nothing short of opening the
container will suffice to address the officer's reasonable
suspicions." Commonwealth v. Pagan, 440 Mass. 62, 72 (2003).
See Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010)
("If safety concerns necessitate doing so, police may open a
closed container").
Here, the troopers were justified in opening a case that
reasonably could have contained a weapon as a part of the
protective sweep. See Silva, 366 Mass. at 410 (finding Terry-
type search illegal not because container was opened, but
because it was so small that police could not have conceivably
believed it contained weapon); Long, 463 U.S. at 1050-1051(search of leather pouch allowed as it could have contained
weapon). Considering the troopers' reasonable suspicion and
their immediate concern for their own and the public's safety,
the protective sweep performed in this case was permissible.
Conclusion. We conclude that the motion judge properly
denied the motion to suppress. Given the information that the
police had about the alleged assault committed by the defendant,
they had reasonable, articulable suspicion to stop the
defendant's motor vehicle and perform a protective sweep of the
vehicle. Moreover, given the safety concerns of the police, the
scope of the protective sweep was constitutionally justified.
Judgment affirmed.