Massachusetts SJC finds stop permissible based on 911 call in recent Second Offense

The content of a 911 call can be pivotal in the prosecution of a drunk driving case. This was evident last week in the second offense DUI case of Commonwealth v. John C. Depiero. The defendant in this case appealed his conviction, arguing that the appellate review erred in denying his motion to suppress evidence obtained during a stop. On January 4th, the Supreme Court of Middlesex County, MA affirmed the Appeals Court denial, but for reasons different to those previously given. The Supreme Court’s decision raises issues surrounding the reliability of 911 calls and whether the caller’s report sufficed as reasonable suspicion for the officer to stop the defendant’s car.


What happened during the “stop”?

In August 2011, an anonymous 911 caller alerted authorities of erratic driving on a Cambridge road. According to the caller, a Mercedez Benz was showing signs of erratic driving, swerving and crossing the divider line. The caller offered the driver’s license plate number and car description, and also referred to the driver as being “drunk”. After running the car details, it became apparent that the driver in question was on probation for drunk driving, and a state trooper was sent to the defendant’s residential address.


The facts of the stop itself are listed below.

  • The trooper’s journey to the defendant’s address took approximately 5 minutes and the defendant had yet to arrive. After a few minutes of waiting, the defendant arrived and parked in the driveway in a reasonable manner.
  • This is when the trooper pulled up behind the parked vehicle, simultaneously turning on his cruiser lights. According to this detail slip, the defendant displayed various signs of being intoxicated- falling over upon exiting the vehicle, disheveled hair and the smell of alcohol.
  • After producing his license and registration, the trooper questioned whether the defendant had been drinking, to which he replied that he had two drinks.
  • The defendant failed the field sobriety tests and the trooper then arrested the defendant.
  • At the station, the defendant agreed to the Breathalyzer, resulting in a test of .18. The defendant was charged with operating a motor vehicle in violation of license restriction and operating under the influence of liquor, second offense.


Discussion of the Facts

The Appeals Court denied the motion to suppress, stating that the 911 caller’s observations were made “under the stress or excitement of a ‘startling or shocking event”, therefore making the information reliable enough to establish reasonable suspicion for an investigatory stop.


The Supreme Judicial Court also affirmed the denial, but based the affirmation on different reasons than those set by the Appeals Court.


Based on Commonwealth v. Lopes, 455 Mass. 147, 155 (2009), an investigatory stop is lawful if the Commonwealth is able to establish the reliability of the information, and specifically the description of the vehicle. In this case, the 911 caller had offered the dispatcher the make, color and license plate number of the vehicle in question. Furthermore, the caller offered the precise location of the driver and detailed the way it was driving along the road.


As the case checked off various “prongs” of reliability, the court then questioned the reliability of the caller. As the call was anonymous, there was no record to prove how honest or reliable the caller has been in the past. However, the Commonwealth affirmed that the caller was made aware at the beginning of the call that the call would be recorded and that the caller was comfortable with this fact. There was therefore minimal reason in doubting the credibility of the caller.


The subject of reliability ultimately came down to two particulars:

  1. The 911 caller has given a detailed description of the driver’s vehicle and location. Based on the vehicle’s apparent location, the trooper was able to drive to the defendant’s residence within 5 minutes and soon identified a car that matched the exact description the 911 caller had given.
  2. The discovered probation status of the defendant for previous drunk driving.



911 calls often initiate police response to drunk driving and it is important for defense attorneys to understand what the standard for a “reliable” call entails. The 911 call was a significant fact in the Depiero case; although the motion denial was affirmed, the reasoning was based on the reliability of the caller and his information. It is common for 911 callers to lack the specificity that this caller had and in those cases, the call may actually prove as insufficient in justifying a police stop.


As seen in this case, there are various approaches to determining the reliability of a 911 call and the content of the caller’s information should be assessed accordingly.  Motion to suppress should be filed in OUI stops based on 911 calls as the details of the call and the manner the evidence is presented during the hearing could result in the motion being allowed, which would in many cases result in the dismissal of the case.  To read more about OUI defenses in Massachusetts you can visit my website.

You can read about the Commonwealth v. Depiero decision on Justia.

Contact Information