NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-559
COMMONWEALTH
vs.
TIMOTHY L. HURLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Timothy Hurley, filed a motion to suppress a
firearm and ammunition seized after the police stopped and
searched the vehicle he was driving. A judge of the District
Court allowed the motion, concluding that the police lacked
reasonable suspicion to justify the stop of the vehicle, and the
Commonwealth filed this interlocutory appeal. We affirm.
Background. We recite the facts as found by the motion
judge. Around midnight on December 20, 2018, an unidentified
911 caller reported that he saw people at the Untold Brewery in
Scituate. The caller was unsure if the people were drunk, but
said they were driving up and down the street making noise and
that he had to work in the morning. We will refer to this call
as the "first call." Officer Corey Arseneau of the Scituate Police Department received a radio call from dispatch to respond
to the area of the Untold Brewery for a noise complaint.
The same unidentified caller then called back and provided
the license plate number of the motor vehicle. We will refer to
this call as the "second call." Dispatch relayed the license
plate number of the vehicle over the radio, describing it as a
gray 2014 Ford Fusion registered to Lawrence Hurley, born in
1930, of North Easton. Officer Arseneau saw the vehicle parked
along the curb of the Untold Brewery and stopped and spoke with
the defendant, who was the operator. After investigating,
Officer Arseneau did not find any evidence of a noise violation,
alcohol consumption, or impairment, and a record check confirmed
that the defendant's license was active. Two passengers in the
car, Kaylie Guiney and Keon Toney, were both known to the
Scituate Police Department for drug use, and Toney was known to
carry firearms. Guiney and Toney got out of the defendant's
vehicle and told Officer Arseneau that they were going to walk
back to Toney's home, located across the street from the brewery
on Jenkins Place. The defendant said that he lived in North
Easton and that he was also returning home and put an address in
his global positioning system (GPS) before leaving the area. No
citations were issued, and the defendant left the area without
incident.
2 About one hour later, the same unidentified caller dialed
911 reporting that he was at the train station and that the same
vehicle almost hit him and his mother. We will refer to this
call as the "third call." The caller told dispatch that the
driver may be "on drugs or something." The dispatcher
broadcasted that the same anonymous caller had reported that the
same vehicle was now lingering in the area of the train station.
Officer Edward Gibbons responded that he was at the train
station minutes before and had seen the defendant, and that the
defendant was not breaking any laws. Officer Arseneau checked
the train station parking lot and did not find any vehicle.
The final 911 call, from the same caller, was made at
around 1:25 A.M. We will refer to this call as the "fourth
call." The caller identified himself as "Matty" on Jenkins
Place and complained that the same vehicle was now on Berkshire
Road and waking up his family. Matty told dispatch that he
would come to the station to lodge a complaint. Dispatch then
radioed officers to check for the same vehicle on Berkshire Road
and reported that the caller would be coming to the station to
file a complaint.
Sergeant Brian McLaughlin and Officer Arseneau arrived at
Berkshire Road about the same time and noticed that the
defendant's vehicle was legally parked on the side of the road
in front of a home. The defendant was in the driver's seat and
3 Guiney was in the backseat. Sergeant McLaughlin pulled his
cruiser in front of the defendant's vehicle and Officer Arseneau
pulled up behind the defendant's vehicle and activated his blue
lights. The defendant stated that they were just waiting for
Toney. Sergeant McLaughlin saw drug paraphernalia in plain
view, as well as furtive movements by Guiney. As a result, the
defendant and passenger were ordered to exit the vehicle, and
the vehicle was searched. A loaded firearm and a syringe were
discovered in the search and the defendant was placed under
arrest.
The defendant moved to suppress the evidence obtained as a
result of the stop initiated after the fourth call. At the
motion hearing, the Commonwealth called three police officers
and played the 911 calls and dispatch recordings, which were
also admitted as exhibits. In allowing the motion to suppress,
the judge and the parties agreed that the defendant was stopped
in a constitutional sense when the officers activated their
cruiser lights and boxed in the defendant's car. The judge
concluded that the police had not independently witnessed any
criminal activity and the stop was not supported by reasonable
suspicion. While the police officers had a hunch that criminal
activity was afoot, the judge concluded that police lacked
specific and articulable facts to support that the defendant had
committed, was committing, or was about to commit a crime. The
4 judge noted that the veracity of the unidentified caller was
clearly questioned by at least one of the officers before the
stop, and that without independent police corroboration that the
defendant was committing an offense, the stop was not justified.
Discussion. Here, we must decide whether the police
officers had reasonable suspicion to stop the defendant's car on
Berkshire Road. "In reviewing a ruling on a motion to suppress,
we accept the judge's subsidiary findings of fact unless they
are clearly erroneous but independently review the judge's
ultimate findings and conclusions of law" (citation omitted).
Commonwealth v. Depiero, 473 Mass. 450, 453 (2016). The
Commonwealth, as is good practice, played the 911 calls and the
dispatch recordings at the motion to suppress hearing and then
submitted a copy as an exhibit. The 911 calls were not
transcribed. Unfortunately, through no fault of the prosecutor,
the copy of the 911 calls, which was the only copy, was not
located in the file in the District Court. As a result, the
parties and this panel are left to rely on the judge's written
findings of fact regarding both the substance of the 911 calls
and, importantly in this case, what specific information the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-559
COMMONWEALTH
vs.
TIMOTHY L. HURLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Timothy Hurley, filed a motion to suppress a
firearm and ammunition seized after the police stopped and
searched the vehicle he was driving. A judge of the District
Court allowed the motion, concluding that the police lacked
reasonable suspicion to justify the stop of the vehicle, and the
Commonwealth filed this interlocutory appeal. We affirm.
Background. We recite the facts as found by the motion
judge. Around midnight on December 20, 2018, an unidentified
911 caller reported that he saw people at the Untold Brewery in
Scituate. The caller was unsure if the people were drunk, but
said they were driving up and down the street making noise and
that he had to work in the morning. We will refer to this call
as the "first call." Officer Corey Arseneau of the Scituate Police Department received a radio call from dispatch to respond
to the area of the Untold Brewery for a noise complaint.
The same unidentified caller then called back and provided
the license plate number of the motor vehicle. We will refer to
this call as the "second call." Dispatch relayed the license
plate number of the vehicle over the radio, describing it as a
gray 2014 Ford Fusion registered to Lawrence Hurley, born in
1930, of North Easton. Officer Arseneau saw the vehicle parked
along the curb of the Untold Brewery and stopped and spoke with
the defendant, who was the operator. After investigating,
Officer Arseneau did not find any evidence of a noise violation,
alcohol consumption, or impairment, and a record check confirmed
that the defendant's license was active. Two passengers in the
car, Kaylie Guiney and Keon Toney, were both known to the
Scituate Police Department for drug use, and Toney was known to
carry firearms. Guiney and Toney got out of the defendant's
vehicle and told Officer Arseneau that they were going to walk
back to Toney's home, located across the street from the brewery
on Jenkins Place. The defendant said that he lived in North
Easton and that he was also returning home and put an address in
his global positioning system (GPS) before leaving the area. No
citations were issued, and the defendant left the area without
incident.
2 About one hour later, the same unidentified caller dialed
911 reporting that he was at the train station and that the same
vehicle almost hit him and his mother. We will refer to this
call as the "third call." The caller told dispatch that the
driver may be "on drugs or something." The dispatcher
broadcasted that the same anonymous caller had reported that the
same vehicle was now lingering in the area of the train station.
Officer Edward Gibbons responded that he was at the train
station minutes before and had seen the defendant, and that the
defendant was not breaking any laws. Officer Arseneau checked
the train station parking lot and did not find any vehicle.
The final 911 call, from the same caller, was made at
around 1:25 A.M. We will refer to this call as the "fourth
call." The caller identified himself as "Matty" on Jenkins
Place and complained that the same vehicle was now on Berkshire
Road and waking up his family. Matty told dispatch that he
would come to the station to lodge a complaint. Dispatch then
radioed officers to check for the same vehicle on Berkshire Road
and reported that the caller would be coming to the station to
file a complaint.
Sergeant Brian McLaughlin and Officer Arseneau arrived at
Berkshire Road about the same time and noticed that the
defendant's vehicle was legally parked on the side of the road
in front of a home. The defendant was in the driver's seat and
3 Guiney was in the backseat. Sergeant McLaughlin pulled his
cruiser in front of the defendant's vehicle and Officer Arseneau
pulled up behind the defendant's vehicle and activated his blue
lights. The defendant stated that they were just waiting for
Toney. Sergeant McLaughlin saw drug paraphernalia in plain
view, as well as furtive movements by Guiney. As a result, the
defendant and passenger were ordered to exit the vehicle, and
the vehicle was searched. A loaded firearm and a syringe were
discovered in the search and the defendant was placed under
arrest.
The defendant moved to suppress the evidence obtained as a
result of the stop initiated after the fourth call. At the
motion hearing, the Commonwealth called three police officers
and played the 911 calls and dispatch recordings, which were
also admitted as exhibits. In allowing the motion to suppress,
the judge and the parties agreed that the defendant was stopped
in a constitutional sense when the officers activated their
cruiser lights and boxed in the defendant's car. The judge
concluded that the police had not independently witnessed any
criminal activity and the stop was not supported by reasonable
suspicion. While the police officers had a hunch that criminal
activity was afoot, the judge concluded that police lacked
specific and articulable facts to support that the defendant had
committed, was committing, or was about to commit a crime. The
4 judge noted that the veracity of the unidentified caller was
clearly questioned by at least one of the officers before the
stop, and that without independent police corroboration that the
defendant was committing an offense, the stop was not justified.
Discussion. Here, we must decide whether the police
officers had reasonable suspicion to stop the defendant's car on
Berkshire Road. "In reviewing a ruling on a motion to suppress,
we accept the judge's subsidiary findings of fact unless they
are clearly erroneous but independently review the judge's
ultimate findings and conclusions of law" (citation omitted).
Commonwealth v. Depiero, 473 Mass. 450, 453 (2016). The
Commonwealth, as is good practice, played the 911 calls and the
dispatch recordings at the motion to suppress hearing and then
submitted a copy as an exhibit. The 911 calls were not
transcribed. Unfortunately, through no fault of the prosecutor,
the copy of the 911 calls, which was the only copy, was not
located in the file in the District Court. As a result, the
parties and this panel are left to rely on the judge's written
findings of fact regarding both the substance of the 911 calls
and, importantly in this case, what specific information the
dispatcher provided to the police officers over the radio in
response to the 911 calls.
An investigatory stop of a motor vehicle is permitted if
the police officer has "reasonable suspicion, based upon
5 specific, articulable facts and reasonable inferences therefrom,
that an occupant of the . . . motor vehicle had committed, was
committing, or was about to commit a crime" (citation omitted).
Depiero, 473 Mass. at 453. In making a threshold inquiry,
police officers can rely on information provided from "flyers,
bulletins, or radio information coming from dispatchers," as
well as information from other police officers. Commonwealth v.
Pinto, 476 Mass. 361, 364 (2017).
In cases where the radio dispatch directs an officer to
make an investigatory stop of a motor vehicle, the Commonwealth
must establish both the particularity of the vehicle's
description and "indicia of the reliability of the transmitted
information." Commonwealth v. Westgate, 101 Mass. App. Ct. 548,
551 (2022). See Commonwealth v. Manha, 479 Mass. 44, 46 (2018).
Because the standard is reasonable suspicion and not probable
cause, "a less rigorous showing in each of these areas is
permissible" (citation omitted). Pinto, 476 Mass. at 364.
Reasonable suspicion is an objective standard. Commonwealth v.
Staley, 98 Mass. App. Ct. 189, 191 (2020). In determining if
reasonable suspicion exists, we assess the totality of the
circumstances leading to the stop and consider the facts known
to the police officers at the time of the seizure. Commonwealth
v. Meneus, 476 Mass. 231, 235 (2017).
6 Before focusing on the stop of the defendant's vehicle on
Berkshire Road, we take a moment to consider the backdrop of the
two prior encounters that the police officers had with the
defendant and what information they knew prior to the stop on
Berkshire Road. The first police encounter was based on the
first and second calls by the anonymous caller. In that first
encounter, dispatch informed Officer Arseneau of the crime to be
investigated, specifically a noise violation, and provided the
license plate number, make and model of the vehicle in question
as well as the location of the car. The constitutionality of
the first stop is not at issue on appeal.
In the encounter after the third call, dispatch told
officers that the car was lingering at the train station. While
it does not appear that "lingering" at the public train station
amounts to a crime, we need not address this issue, as the
police did not effectuate a stop of the defendant but rather had
an exchange that did not amount to a stop. See Commonwealth v.
Murdough, 428 Mass. 760, 763-764 (1999).
We turn now to the stop of the defendant's motor vehicle at
issue, which occurred on Berkshire Road after the fourth call.
Unlike the specific information provided to officers by dispatch
after the first call, about a possible crime of disturbing the
peace or a noise violation, the information provided to the
police officers after the fourth call and prior to the stop of
7 the defendant's car on Berkshire Road is much more limited. The
Commonwealth argues that the stop on Berkshire Road was
supported by reasonable suspicion because the unidentified 911
caller reported that the defendant had committed the crimes of a
noise violation and negligent operation of a motor vehicle. In
most instances, the Commonwealth's argument would be directly on
point if the police officer had, based on an anonymous caller,
some information about a specific crime being committed and
stopped the vehicle to further inquire. In that situation, the
main issue is the caller's basis of knowledge and veracity.
That is not the issue in this case. When responding to
Berkshire Road, it is only fair to say that the police were
responding to a suspicious vehicle that had been in the area for
some time and whose passengers were known to the police.
Therefore, despite excellent arguments by both parties on
the issue, our decision on appeal is not determined by an
analysis of the veracity of the caller during the fourth call.
Rather the determinative inquiry is what specific information
the police officers possessed prior to the stop that could
support reasonable suspicion that a crime had been, was being,
or was about to be committed. See Commonwealth v. Warren, 475
Mass. 530, 534 (2016). The unidentified caller reported to
dispatch that he and his mother were almost hit by the
defendant's vehicle at the train station and later that the same
8 car was continuing to wake him up, possibly by being loud, and
was now on Berkshire Road. Based on the detailed findings of
fact by the judge, however, it appears that the dispatcher did
not communicate to the police any specific information about
either the near-vehicular accident or noise, both of which might
be possible crimes. Again, the outcome in this case may have
been different if we were able to independently review the 911
and dispatch calls.
In regards to the fourth and most recent call, police
officers at that time only had actual knowledge that the
defendant's car was in the area of Berkshire Road and that the
caller would be coming to the station to file a complaint.1
1 We note that in the motion to suppress hearing, Officer Gibbons testified that his understanding of why dispatch sent him to Berkshire Road was for a "car parked, or sitting out in the neighborhood between the houses. It's a residential neighborhood." Officer Arseneau testified that he believed he reported to Berkshire Road for the "same suspicious vehicle driving up and down Berkshire at this point." Finally, Sergeant McLaughlin testified that the reason he responded to Berkshire Road was "a citizen[']s complaint originally to Dispatch. I don't know how it came in to them, to our dispatch center, but it was related that it was a suspicious vehicle, could possibly be similar, same vehicle as the other two involvements." Later in his testimony Sergeant McLaughlin stated that the 911 caller believed "there was a racing of -- the high speed of the car which would depict whatever the noise factors that they felt was disturbing." In any event, Sergeant McLaughlin testified that when he arrived at Berkshire Road, the car was not violating any noise ordinance or driving up and down the road but was legally parked on the side. The judge, who had the 911 calls and the dispatch recordings, was not required to find that Sergeant McLaughlin knew of any noise violation at the time he arrived on the scene.
9 Additionally, the doctrine of collective knowledge does not
rectify this shortcoming because the record does not establish
that the dispatcher was in a position to direct the officers on
the scene to take specific actions, nor did the dispatcher give
the officers on the scene any of the critical facts of any
potential crimes. See Commonwealth v. Privette, 491 Mass. 501,
508, 513 (2023) ("[T]he collective knowledge doctrine has
evolved into two different types: horizontal collective
knowledge and vertical collective knowledge." Vertical
collective knowledge requires "one officer directing or
requesting another officer to conduct a stop, frisk, search, or
an arrest." Horizontal collective knowledge requires officer to
"have knowledge of at least some of the critical facts" from
another officer involved in joint investigation).
As to the previous calls, they too offer little support.
Any support the information of a potential noise complaint in
the first call might have offered evaporated after the officers
stopped the defendant, investigated, and found no criminal or
civil violations. The stop of the vehicle and ensuing
investigation dispelled the claim from the anonymous caller that
the car was committing a noise infraction. The second call
contained no information regarding any crime, but only contained
identifying information of the defendant's vehicle. While
dispatch might know from the third call that there was potential
10 drug use, for the same reasons as the fourth call we cannot
impute that knowledge to the officers on the scene under the
collective knowledge doctrine. See Privette, 491 Mass. at 508,
513. In relation to the third call, the officers on the scene
were only told that the defendant's vehicle was now lingering in
the area of the train station, which they quickly confirmed was
not true. Accordingly, prior to seeing the defendant's car on
Berkshire Road, the police officers on the scene did not have
reasonable suspicion that any crime had been, was being, or was
about to be committed.
When police arrived at Berkshire Road, which they had every
right to do, they also did not witness any criminal activity.
They only saw the defendant's car legally parked in front of a
home. Reasonable suspicion "may not be based on good faith or a
hunch, but on specific, articulable facts and inferences that
follow from the officer's experience" (citation omitted).
Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480 (2007). That
officers corroborated that the same car was now on Berkshire
Road (as reported by dispatch) is not sufficient to amount to
reasonable suspicion that a crime was being committed. See
Commonwealth v. Mubdi, 456 Mass. 385, 397-398 (2010)
(combination of innocent details does not tip scales in favor of
reasonable suspicion). Here, the lack of information about
criminal activity provided to or acquired by police officers
11 responding to the area supports the conclusion made by the judge
that the stop was not permissible because it was not based on
reasonable suspicion. Accordingly, we affirm the allowance of
the motion to suppress.
Order allowing motion to suppress affirmed.
By the Court (Sacks, Singh & Walsh, JJ.2),
Assistant Clerk
Entered: May 9, 2024.
2 The panelists are listed in order of seniority.