DREBEN, J.
At approximately 12:50 P.M. on May 1, 2008, three 911 telephone calls were received by the Fall River police department reporting a shooting on South Main Street in that
1. Facts. We take our facts from the findings of the motion judge occasionally supplemented by uncontroverted evidence from the hearing on the motion to suppress. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007); Commonwealth v. Ancrum, 65 Mass.App.Ct. 647, 648 (2006). The first caller, Gerard Cantara, stated that the person who had been shooting was a black male with "jerry curls" wearing a green shirt and jeans. Cantara saw him run into a store and then get into a bronze four-wheel drive vehicle and drive south on South Main Street. The second call was made by an unidentified woman who stated that several shots had been fired, that the shooter was a black male of average height wearing a green shirt, and that he had driven away in a brown Durango with a license plate number of 6808. Sean Cleary was the third 911 caller. He reported that when he was at East Coast Wholesale, a store on South Main Street, two black men ran into the store with the first man being chased by the second; the latter had a gun and was wearing a green shirt. Cleary saw him get into a Dodge Durango with license plate number US 1608 and drive south on South Main Street. Cleary thought the vehicle was gray. He also stated that one of the men had dropped a cellular telephone, which Cleary had retrieved. While he was talking to the 911 dispatcher, two police officers arrived at East Coast Wholesale, and Cleary repeated what he had seen.
The police sent out a broadcast stating that the suspect was a
Officer Wendell Burks heard the broadcast and shortly thereafter noticed a brown Dodge Durango with license plate US 680A driven by a black man wearing a white T-shirt and a "Jheri curls" hairstyle.
Officers searched the car but found nothing of relevance to the shooting. Thereafter the defendant was placed in the back of a cruiser and taken back to the scene of the shooting. Pursuant to a written towing policy, the Durango was inventoried and towed to the impound lot of the police department to secure it.
The defendant was freed of his handcuffs, and a show-up identification, taking about two to three minutes, was conducted at the shooting scene. Cleary was unable to identify the defendant as the shooter, and the other witnesses did not want to have anything more to do with the case. The defendant was then
The tow truck arrived at the parking lot at 1:20 P.M., and the vehicle was searched at the police lot at about 4:15 P.M. by Detective Elumba, an officer who had received special training in locating hidden compartments in vehicles.
2. The stop. The judge ruled as follows. Burks had reasonable suspicion to believe that the defendant was involved in the shooting, and thus the stop and Burks's later actions were justified. In making this assessment, Burks, having heard the broadcast, was entitled to take into account the matching description of the vehicle and the suspect, the temporal and physical proximity of the defendant to the place of the shooting, and the fact that a violent crime had just been committed. See Commonwealth v. Ancrum, 65 Mass. App. Ct. at 654. The broadcast was based on information from two named ordinary citizens who had witnessed the crime, see Commonwealth v. Carey, 407 Mass. 528, 534 n.4 (1990), and who testified at the motion hearing. The judge found their testimony credible. He correctly pointed out that although the police radio broadcast did not include the license plate number provided by Cleary and the
In its appeal, the Commonwealth argues that the foregoing evidence provided probable cause to search the Durango at the time Burks stopped the defendant. In his cross appeal the defendant claims that Burks lacked not only probable cause but also a valid basis for making an investigatory stop.
"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 his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The defendant claims that there were insufficient distinguishing physical characteristics of the vehicle, and that the defendant was wearing a white shirt, not a green one. Moreover, he argues that the place where Burks first saw the defendant was one and one-half miles north of the scene of the shooting, while the suspect was reported to have been last seen driving south from the locus of the shooting. The defendant fails to acknowledge the collective knowledge rule of Commonwealth v. Lanoue, 356 Mass. at 340, and hence ignores the potent evidence as to the license plate numbers. The differences in descriptions of the color of the car and the color of the defendant's T-shirt are insignificant in view of the almost exact match of the actual numbers of the license plate of the vehicle with the identifications of those numbers by the 911 callers.
In Brown, the defendants sought to suppress evidence found
3. The search. The question whether the warrantless search at the police lot was proper is more difficult. While our conclusion as to the validity of the search by Detective Elumba differs from that of the motion judge, we note that his analysis preceded the decision of Commonwealth v. Eggleston, 453 Mass. 554 (2009).
The defendant correctly argues that the automobile exception applies only after the police objectively have probable cause to believe a motor vehicle parked in a public place contains contraband, and provided that no unreasonable length of time elapses
There is here a question whether the parking lot was a public place within the meaning of our cases. In Eggleston the motion judge found that the public had access to the parking lot where the vehicle was seized. Id. at 558 n.3. Here, although the judge found that the towing of the vehicle to the police lot was proper, he stated, "[A]t the time of the stop of the Durango, it was not on a public street and the officers were not faced with the attendant risks when a search is conducted on a public street."
The question of the timing of the search also presents some difficulty. No exigency need ordinarily be shown beyond the inherent mobility of an automobile, but the "automobile exception may not be employed to justify an unreasonable delay between the time when the police objectively have probable cause to search the car and the time when they do so . . .; the question ... becomes whether the police delayed execution of the search for an unreasonably long time without plausible justification for the delay." Commonwealth v. Eggleston, supra at 558-559. Even if the police have "plain and ample opportunity" to obtain a warrant, "the police are nevertheless entitled to forgo application for the warrant if it is reasonable to do so and later to proceed with the search under the automobile exception." Id. at 559. The inquiry is "whether a delay in executing a permissible seizure is motivated by reasonable investigative considerations or merely by a desire to avoid the warrant requirement by exploiting the automobile exception." Id. at 560.
Here, the judge found that the Durango was secured in the police impound lot for over two and one-half hours before the
For the foregoing reasons the order partially allowing the motion to suppress is reversed, and a new order shall enter denying the motion in its entirety.
So ordered.