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-864
COMMONWEALTH
vs.
ZACHARY CRABILL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Zachary Crabill, was charged with operating
under the influence (OUI), third offense, in violation of G. L.
c. 90, § 24 (1) (a) (1), negligent operation in violation of
G. L. c. 90, § 24 (2) (a), and a marked lanes violation, after
he was questioned by police as a result of a 911 call that
reported erratic driving. Crabill filed a motion to suppress,
claiming that the police conducted an illegal stop and seizure
of him and the car he was driving, and seeking to suppress
evidence obtained from the stop. A District Court judge allowed
Crabill's motion to suppress, and denied the Commonwealth's
motion to reconsider. The Commonwealth appeals, arguing that
there was reasonable suspicion for the stop. We agree with the
Commonwealth and accordingly, reverse. 2
Background. 1. The incident.1 At approximately 9 P.M. on
May 14, 2022, Bridgewater police officer Clint Apaza was
patrolling in a marked cruiser when he received information from
police dispatch regarding a report of erratic driving. Dispatch
informed Officer Apaza that a 911 caller, who had identified
himself by name, had been driving behind a dark-colored Land
Rover with Rhode Island license plate (which he provided), and
had seen that the Land Rover "failed to maintain lanes."
Thereafter the caller turned left onto another road while the
Land Rover continued traveling. Officer Apaza began looking for
the Land Rover in the area identified by the caller. While
stopped at a red light, Apaza heard the sound of screeching
tires. He looked in the direction of the sound and saw a Land
Rover, which met the description provided by the caller, enter
the parking lot of a laundromat at such high speed that the
vehicle's undercarriage came into contact with the pavement,
"bottom[ing] out." Officer Apaza then drove into the
laundromat's parking lot and, from approximately forty to fifty
feet away, saw the Land Rover parked so that it straddled two
marked parking spots. The driver of the Land Rover tried to
reposition the vehicle in the parking spot, twice, by backing
1 The facts pertaining to the incident are from the District Court judge's findings and rulings on the defendant's motion to suppress. 3
out and pulling in. Officer Apaza's cruiser was not blocking
the Land Rover from exiting the parking lot and its blue lights
were not activated. He saw that the Land Rover's license plate
number matched the license plate number provided by the caller.
He exited his cruiser, approached the vehicle's driver's side,
and identified Crabill as the vehicle's driver. Bridgewater
police officer Sheehan arrived to assist.
2. The motion to suppress. Crabill filed a motion to
suppress the evidence obtained during his interaction with
Apaza, claiming that the evidence was the fruit of an illegal
stop. Crabill argued that the Bridgewater police did not have
the required reasonable suspicion to stop him and order him to
exit the vehicle. The judge held a hearing on the defendant's
motion in December of 2022. Officer Apaza testified, and the
motion judge found his testimony credible on "all material
points." The judge nevertheless concluded that the Commonwealth
"failed to meet its burden of proof . . . that Bridgewater
police had reasonable suspicion to stop the defendant's
vehicle," and allowed the defendant's motion to suppress. In
February 2023 the Commonwealth filed a motion to reconsider that
was denied after a hearing. This interlocutory appeal followed.
Discussion. The Commonwealth argues that Officer Apaza had
reasonable suspicion to approach the Land Rover and to make
initial inquiries of its driver. In support, the Commonwealth 4
emphasizes (1) that Officer Apaza relied on a credible tip from
an identified caller who provided detailed observations of the
Land Rover, and (2) that Officer Apaza's own observations
substantially corroborated those of the caller.
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of [the judge's] ultimate findings
and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642,
646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). We "leave to the [motion] judge the responsibility of
determining the weight and credibility to be given . . .
testimony presented at the motion hearing." Commonwealth v.
Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). However, we "make an
independent determination of the correctness of the judge's
application of constitutional principles to the facts as found."
Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
As a preliminary matter, we question whether Officer
Apaza's actions amounted to a stop or seizure for constitutional
purposes. The record was not fully developed as to this issue,
and the judge did not make a finding, although both parties
surfaced the issue during argument on the motion to suppress.
It is clear from the record that the defendant's car was already
stopped, in the parking lot, when Officer Apaza approached him. 5
Police may approach individuals on the street and ask them
questions without implicating constitutional concerns, so long
as the individual approached is free to decline to answer the
questions. Commonwealth v. Harris, 93 Mass. App. Ct. 56, 60
(2018).2 Apaza's car was parked forty to fifty feet away, not
blocking an exit, and his lights were not on. See Commonwealth
v. Barros, 435 Mass. 171, 174 (2001) (no stop where, among other
indicia, police officer did not impede or restrict defendant's
freedom of movement). Although the "Commonwealth bears the
burden of demonstrating that the actions of the police officers
were within constitutional limits," Meneus, 476 Mass. at 234,
citing Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007), the
defendant bears the initial burden of showing that a stop or
seizure occurred that raises constitutional concerns. See
Commonwealth v. Rodriguez, 456 Mass. 578, 590 n.12 (2010),
citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986).
Here we need not decide if a stop occurred, as we conclude (and
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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-864
COMMONWEALTH
vs.
ZACHARY CRABILL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Zachary Crabill, was charged with operating
under the influence (OUI), third offense, in violation of G. L.
c. 90, § 24 (1) (a) (1), negligent operation in violation of
G. L. c. 90, § 24 (2) (a), and a marked lanes violation, after
he was questioned by police as a result of a 911 call that
reported erratic driving. Crabill filed a motion to suppress,
claiming that the police conducted an illegal stop and seizure
of him and the car he was driving, and seeking to suppress
evidence obtained from the stop. A District Court judge allowed
Crabill's motion to suppress, and denied the Commonwealth's
motion to reconsider. The Commonwealth appeals, arguing that
there was reasonable suspicion for the stop. We agree with the
Commonwealth and accordingly, reverse. 2
Background. 1. The incident.1 At approximately 9 P.M. on
May 14, 2022, Bridgewater police officer Clint Apaza was
patrolling in a marked cruiser when he received information from
police dispatch regarding a report of erratic driving. Dispatch
informed Officer Apaza that a 911 caller, who had identified
himself by name, had been driving behind a dark-colored Land
Rover with Rhode Island license plate (which he provided), and
had seen that the Land Rover "failed to maintain lanes."
Thereafter the caller turned left onto another road while the
Land Rover continued traveling. Officer Apaza began looking for
the Land Rover in the area identified by the caller. While
stopped at a red light, Apaza heard the sound of screeching
tires. He looked in the direction of the sound and saw a Land
Rover, which met the description provided by the caller, enter
the parking lot of a laundromat at such high speed that the
vehicle's undercarriage came into contact with the pavement,
"bottom[ing] out." Officer Apaza then drove into the
laundromat's parking lot and, from approximately forty to fifty
feet away, saw the Land Rover parked so that it straddled two
marked parking spots. The driver of the Land Rover tried to
reposition the vehicle in the parking spot, twice, by backing
1 The facts pertaining to the incident are from the District Court judge's findings and rulings on the defendant's motion to suppress. 3
out and pulling in. Officer Apaza's cruiser was not blocking
the Land Rover from exiting the parking lot and its blue lights
were not activated. He saw that the Land Rover's license plate
number matched the license plate number provided by the caller.
He exited his cruiser, approached the vehicle's driver's side,
and identified Crabill as the vehicle's driver. Bridgewater
police officer Sheehan arrived to assist.
2. The motion to suppress. Crabill filed a motion to
suppress the evidence obtained during his interaction with
Apaza, claiming that the evidence was the fruit of an illegal
stop. Crabill argued that the Bridgewater police did not have
the required reasonable suspicion to stop him and order him to
exit the vehicle. The judge held a hearing on the defendant's
motion in December of 2022. Officer Apaza testified, and the
motion judge found his testimony credible on "all material
points." The judge nevertheless concluded that the Commonwealth
"failed to meet its burden of proof . . . that Bridgewater
police had reasonable suspicion to stop the defendant's
vehicle," and allowed the defendant's motion to suppress. In
February 2023 the Commonwealth filed a motion to reconsider that
was denied after a hearing. This interlocutory appeal followed.
Discussion. The Commonwealth argues that Officer Apaza had
reasonable suspicion to approach the Land Rover and to make
initial inquiries of its driver. In support, the Commonwealth 4
emphasizes (1) that Officer Apaza relied on a credible tip from
an identified caller who provided detailed observations of the
Land Rover, and (2) that Officer Apaza's own observations
substantially corroborated those of the caller.
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of [the judge's] ultimate findings
and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642,
646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). We "leave to the [motion] judge the responsibility of
determining the weight and credibility to be given . . .
testimony presented at the motion hearing." Commonwealth v.
Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). However, we "make an
independent determination of the correctness of the judge's
application of constitutional principles to the facts as found."
Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
As a preliminary matter, we question whether Officer
Apaza's actions amounted to a stop or seizure for constitutional
purposes. The record was not fully developed as to this issue,
and the judge did not make a finding, although both parties
surfaced the issue during argument on the motion to suppress.
It is clear from the record that the defendant's car was already
stopped, in the parking lot, when Officer Apaza approached him. 5
Police may approach individuals on the street and ask them
questions without implicating constitutional concerns, so long
as the individual approached is free to decline to answer the
questions. Commonwealth v. Harris, 93 Mass. App. Ct. 56, 60
(2018).2 Apaza's car was parked forty to fifty feet away, not
blocking an exit, and his lights were not on. See Commonwealth
v. Barros, 435 Mass. 171, 174 (2001) (no stop where, among other
indicia, police officer did not impede or restrict defendant's
freedom of movement). Although the "Commonwealth bears the
burden of demonstrating that the actions of the police officers
were within constitutional limits," Meneus, 476 Mass. at 234,
citing Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007), the
defendant bears the initial burden of showing that a stop or
seizure occurred that raises constitutional concerns. See
Commonwealth v. Rodriguez, 456 Mass. 578, 590 n.12 (2010),
citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986).
Here we need not decide if a stop occurred, as we conclude (and
2 "The legal standard [for when police action amounts to a stop for constitutional purposes] is well settled: whether, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.'" Harris, 93 Mass. App. Ct. at 60, quoting Meneus, 476 Mass. at 234-235. While the police may approach individuals on the street and ask them questions, "[i]f the police communicate . . . by word or action . . . that the person they are speaking to is not free to terminate the conversation or to walk away, then . . . reasonable suspicion, at least, is required." Harris, supra. 6
discuss below) that in any event the police had reasonable
suspicion to stop the Land Rover.
Assuming, arguendo, that Officer Apaza's actions did amount
to a stop for constitutional purposes, for such a stop to be
justified under art. 14 of the Declaration of Rights of the
Massachusetts Constitution, the police must have "reasonable,
articulable suspicion that a person has committed, is
committing, or is about to commit a crime." Commonwealth v.
Bostock, 450 Mass. 616, 619 (2008). Reasonable suspicion is a
"low bar," lower than probable cause. Commonwealth v. Privette,
491 Mass. 501, 551 (2023) (Wendlandt, J., concurring). See
Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998) (reasonable
suspicion where motorist's firsthand observations corroborated
by police officer's personal knowledge). "To meet the
'reasonable suspicion' standard in this Commonwealth, police
action must be 'based on specific, articulable facts and
reasonable inferences therefrom' rather than on a 'hunch.'"
Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting
Commonwealth v. Wren, 391 Mass. 705, 707 (1984). That standard
was satisfied here, by the combination of the information from
the 911 call and the officer's independent observations.
Starting with the 911 call, the case law requires the
Commonwealth to show "both the indicia of reliability of the
transmitted information and the particularity of the description 7
of the motor vehicle." Commonwealth v. Lopes, 455 Mass. 147,
155 (2009). In the context of a reasonable suspicion analysis,
"a less rigorous showing . . . is permissible" than is required
for probable cause. Id. at 156, quoting Lyons, 409 Mass. at 19.
Here, the particularity of the description of the vehicle was
plainly satisfactory. The police broadcast relayed the color,
make, license plate number, general location, and direction of
travel of the Land Rover. See Commonwealth v. Depiero, 473
Mass. 450, 454 (2016); Commonwealth v. Westgate, 101 Mass. App.
Ct. 548, 551 (2022). The information in the 911 call also bore
sufficient indicia of reliability to justify further police
action. The caller's basis of knowledge was clear –- the caller
was traveling behind the defendant's car and observing it
firsthand. See Commonwealth v. Anderson, 461 Mass. 616, 622
(2012); Commonwealth v. Depina, 456 Mass. 238, 243 (2010). The
caller provided a detailed description of the Land Rover and
also described the Land Rover's erratic movements, that is,
"failure to maintain lanes." And the circumstances also
provided sufficient indicia of the caller's veracity. The
caller called 911 and provided his name. See Westgate, supra at
550, 552. This was not an anonymous tip, or a confidential
informant, but an unsolicited citizen openly describing what
they had seen. See id. at 551-552. 8
Perhaps more importantly, the caller's observations were
well corroborated by the observations of Officer Apaza. Apaza
went to the area identified by the caller and saw the same Land
Rover (the plate matched) driving at a high rate of speed into a
parking lot, bottoming out, screeching its tires, and having
noticeable difficulty properly parking. This independent police
corroboration significantly bolstered the reliability of the
information from the 911 caller. See Barros, 435 Mass. at 176.
The reasonable suspicion question is whether these facts
provided sufficient ground for a stop and further police inquiry
–- whether these were reasonable grounds to believe a crime had
been or was being committed, Commonwealth v. Pinto, 476 Mass.
361, 363-364 (2017), –- and we consider that question "in an
ordinary, commonsense manner without hypertechnical analysis."
Westgate, 101 Mass. App. Ct. at 551, quoting Commonwealth v.
Gonzalez, 93 Mass. App. Ct. 6, 11 (2018). Based on the above
facts, we have little difficulty concluding that when Officer
Apaza approached the defendant's vehicle, he possessed grounds
for reasonable suspicion that the defendant had operated his 9
vehicle negligently and dangerously.3 Accordingly, the order
allowing the defendant's motion to suppress is reversed.
So ordered.
By the Court (Ditkoff, Englander & Smyth, JJ.4),
Clerk
Entered: September 10, 2024.
3 Relying on Privette and its limitations on the so-called "horizontal collective knowledge doctrine," Privette, 491 Mass. at 503, the defendant argues that the Commonwealth cannot rely on the information from the 911 call to justify the stop by Officer Apaza. The defendant is plainly incorrect, however, insofar as the information from the 911 call was actually transmitted over the police radio by dispatch, and thus known to Apaza at the time of the stop. Privette dealt with a different problem, where the Commonwealth seeks to aggregate information known by multiple officers because "no one officer . . . [has] sufficient information to support . . . reasonable suspicion." Id. at 508. Here we rely on no more than was actually known by Apaza –- the make, model, license plate number, and location of the car that had been called in to 911 because of erratic driving. That information, combined with Apaza's own observations, amounted to reasonable suspicion. 4 The panelists are listed in order of seniority.