Commonwealth v. Zachary Crabill.

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.
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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.