Massachusetts Appeals Court Rules that a Single Anonymous Tip of Erratic Operation Permits the Police to Pull Over a Motor Vehicle

The Massachusetts Appeals Court decided today that a single, anonymous tip that a driver was drunk was sufficient for the police to stop the car and conduct an investigation.  The name of the case is Commonwealth v. Depiero.

The defendant was convicted of operating under the influence of alcohol.  It was his second conviction for OUI.  On appeal, he argued that the police violated his constitutional rights by stopping him and conducting an investigation to determine if he had been drinking.

In August of 2011, an unidentified man called 911 and said, “you got a drunk driver on Memorial Drive near Harvard Square…”  The caller said the driver was swerving all over the road.  The caller further provided the make, color, and license plate number of the car.  Based on the information provided by the anonymous tipster, the police obtained the registered owner’s address in Belmont.  A state trooper responded to the vicinity of the defendant’s home and saw the defendant pass him and pull into his driveway.  The trooper did not observe anything erratic or abnormal about the defendant’s operation of his car, but he pulled his cruiser behind the defendant and activated his emergency lights.  The parties agreed, and the Appeals Court found, that the defendant was stopped and seized as a matter of constitutional law as soon as the trooper put on his lights.

The defendant stepped out of his car and almost fell down.  He smelled like alcohol, admitted to drinking, and failed field sobriety tests.  The trooper arrested the defendant, who later blew a .18 on the Breathalyzer.

In Massachusetts, a police officer can stop a motor vehicle only when there is reasonable suspicion to believe that the driver had already committed, was presently committing, or was about to commit a crime.  An anonymous tip can establish reasonable suspicion if it is proven to be reliable.  In evaluating the reliability of anonymous tips, Massachusetts applies the Aguilar-Spinelli test (named for a famous federal court case).  There are two prongs to the Aguilar-Spinelli test: (1) did the tipster have a basis of knowledge to supply the information?; and (2) is there evidence to suggest that the information is reliable?

Basis of Knowledge
The basis of knowledge prong can be satisfied simply by establishing that the tipster was in a position to see what he claimed to see.  In this case, there was some evidence that the tipster was following the defendant as he drove.  The tipster’s basis of knowledge was easily satisfied in this case.

Reliability (Veracity)
Whether the police had a reasonable basis for concluding that the tipster was reliable is questionable, and the Appeals Court conceded that it was “a close call.”  There was no evidence that the police knew the tipster’s phone number or that he could be identified in any way.  However, the Appeals Court said that the caller’s veracity could be confirmed in at least two other ways.  The first, which did not occur in this case, is by independent police corroboration.  The arresting state trooper did not see the defendant drive erratically, so he could not confirm the tipster’s report.  Therefore, the Appeals Court said the veracity prong had been satisfied because the tipster had just witnessed and described a shocking event, and therefore the tipster did not have time to fabricate what he had seen.

The Appeals Court essentially relied on the “excited utterance” exception to the hearsay rule to justify the motor vehicle stop in this case.  Out-of-court statements cannot usually be introduced at trials because they are not subject to cross-examination.  However, an exception to the hearsay rule is the excited utterance – if someone sees something shocking, and blurts out a statement related to the shocking event, that statement can be admitted at trial as an excited utterance.  It is most often used in domestic violence cases where the alleged victim refuses to testify, but made statements to the responding police officers about the incident (statements that are then repeated to the jury by the police officers).

Relying on excited utterances in this case seems incredibly shaky.  First of all, an excited utterance is usually found only after the court determines that the declarant (the person making the statement) was still under the influence of the exciting event.  Therefore, there needs to be some testimony that the declarant was crying, or shaking, or speaking in a scared tone of voice.  There was no such evidence in this case.  Second, it is a stretch to conclude that witnessing erratic operation qualifies as an exciting event.  The case relied on by the Appeals Court dealt with a truly exciting event – men making their getaway following a robbery.  The Appeals Court insists that drunk driving constitutes a grave danger that would render the tipster unable to fabricate what he had seen.  That’s doubtful to most (if not all) of us who have witnessed erratic driving and kept our wits about us.  The Appeals Court also naively asserts that it is unlikely that people will make false 911 calls to harass their enemies.  Spring & Spring has represented numerous clients accused of doing exactly that.

Hopefully the Supreme Judicial Court will review this case.  There have been conflicting opinions on this issue in other jurisdictions (the United States Supreme Court ruled similarly to the Massachusetts Appeals Court, albeit by a vote of 5-4).