Complaint received and sworn to in the
South Boston Division of the Boston Municipal Court Department on July 10,
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
Tracey-Lee Jones, 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.
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 The Appeals Court affirmed in an unpublished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
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 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).
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, 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).
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.  Id. at 517.
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.  For
this reason, we must treat the caller as anonymous for the purposes of the
motion to suppress. Nevertheless, a
combination of factors made 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. 
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.
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.
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. 
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 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; 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).
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 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 (1st Cir. 2006), cert. denied, 552 U.S. 827 (2007).  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,
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 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.
 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 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.
 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).
 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.
 The defendant does not claim error in
the arrest that took place after the pellet gun was discovered.
 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).