Many OUI stops originate from a report of someone on the road claiming that another driver is driving erratically. In many cases, the officer will follow the motorist and make independent observations justifying the stop. In some cases the stop may be solely the result of the 911 caller. The SJC addressed this issue on October 26^th of 2015 in Commonwealth v. John Depiero.  The Court heard oral arguments in this case with a decision expected within three or four months.

The Defense Lawyer argued that his client was unlawfully stopped, and searched, due to an anonymous call to police. The 911 caller in this case had claimed that it seemed that the driver of the car in front of her was driving under the influence. After the phone call, an officer began following the car, and after confirming that the car he was following was in fact the car that the caller had identified, he pulled the car over despite the fact that he did not see any evidence that the individual he pulled over was driving under the influence.

The 911 caller stated that following:  “this is just a phone call – you’ve got a drunk driver on Memorial Drive.”  The defense argued that given the lack of details in the tip, the Court should not find it reliable.  The defense stressed that the tip did not contain evidence of extended observations as in Commonwealth v. Lubiejewski, where the Court found that an uncorroborated tip did not justify a motor vehicle stop.  The defense underscored that this case is unique in that there is no evidence from the callas to the time of the observations to justify stopping a motorist.

When the Court heard Oral Argument on November 3rd, one of the Justices asked if it would make a difference if the officer observed the defendant get out of the car and fall on his face.  The defense conceded that evidence of the driver’s conduct after the stop would have corroborated the tip.  The defense contended that without any additional evidence to verify the tip that the court should find it unreliable and not a basis of a seizure under Article 14.

 Defense Argued that the Commonwealth Excited Utterance Theory was not raised at the motion

The defense contended that the Court should not consider the excited utterance theory raised by the Commonwealth to justify the reliability of the call because it was not raised at the motion to suppress hearing.  This issue was not addressed much during the oral argument.  The Commonwealth claimed in its brief that this was not a new theory but a basis to conclude that the informant was reliable.  I would not expect the Court to find this argument waived; however, the Court could remand the case to the motion judge for further fact finding if the Court finds the record unclear,

Commonwealth contends that 911 calls are not Anonymous because they can be traced

The Commonwealth at oral argument questioned why it matters if a tip to the police is anonymous or not. They argue that technically no call to 911 is anonymous, because all callers can be traced. This, according to the Commonwealth, was an emergency because it put enough members of the public at risk to warrant a stop by a police officer. The Court questioned whether or not reporting a swerving driver is an emergency. The Court notes that there are several reasons that may cause a person’s car to swerve, many of which do not include driving under the influence of alcohol.

Further, the defendant distinguished this case from the similar case decided by the United States Supreme Court in 2014, Navarette v. California.  The defense point out that in this case, a 911 caller had reported that a vehicle had ran her off the highway, and had been last seen five minutes before she placed the phone call. She gave the 911 dispatcher the car’s make, model, and plate number, allowing an officer to locate and stop the car. In this case, the Supreme Court had determined that the information that the caller had given the 911 dispatcher was enough to believe that she had truly witnessed the driver in question driving erratically. Additionally, the Court concluded that there was every reason to believe that the caller was telling the truth in her phone call, considering the fact that the officer was able to identify and pull over the motorist that she was referencing within minutes of receiving the phone call. The Supreme Court felt that in this case, the 911 caller had witnessed such a startling event (being run off the road), that it was reasonable that she would feel the need to call 911.

The Commonwealth argues that the same principles apply here in this case, claiming that the caller was informed the call was being recorded. This individual, the Commonwealth claims, likely understood the fact that the police would be able to trace the phone number, reducing the likelihood of a false report to  911. In addition, the trooper on call was able to locate the vehicle in question within five minutes of the phone call. The Commonwealth argues that this is in accordance with the Navarette case, meaning that the Court should apply the same reasoning as the United States Supreme Court.

Ultimately, the Massachusetts Supreme Judicial Court will soon decide if an anonymous tip is insufficient to identify someone as driving under the influence. It will be interesting to see how the Court decides on this case. The results will likely greatly influence the future of OUI cases.

If you are interested in hearing the arguments that the Massachusetts Supreme Judicial Court heard on this matter, you can find them on the Suffolk Law School Website.

Attorney DelSignore has many defense strategies that he uses when he is defending a client who has been convicted of an OUI. Feel free to read about these strategies on his website.