Commonwealth v. Timothy L. Hurley.

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.

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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

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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

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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

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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).

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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

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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

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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.

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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

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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

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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.

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