|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Dedomenicis,
42 Mass.App.Ct. 76 (1997)
No. 96‑P‑351.
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Further Appellate Review Denied
Melissa J. Weisgold,
Assistant District Attorney, for Commonwealth.
Benjamin H. Keehn,
Committee for Public Counsel Services, for defendant.
Before DREBEN, GILLERMAN and FLANNERY, JJ.
DREBEN. Justice.
This is an
appeal by the Commonwealth from the allowance of the defendant's motion to
suppress more than 200 five‑dollar bills found in the course of a pat
frisk of the defendant. The motion judge
found that the police officer reasonably was in apprehension of danger
sufficient to make a pat frisk, but, based on the judge's own "feel"
of the wad of money taken from the defendant, concluded that the officer was
not constitutionally permitted to examine what the defendant had concealed in
his pants pocket. We reverse.
The
following facts were found by the motion judge.
After [42 Mass.App.Ct.
77] a robbery of a Malden
supermarket by masked intruders, Officer James O'Brien received a radio
transmission that three suspects were heading toward Lodgen
Court and that at least one of them was armed.
Arriving at
[1] The
additional inquiry required in stop and frisk cases, see Commonwealth v. Mercado, 422 Mass. 367, 369, 371‑372, 663
N.E.2d 243 (1996), is whether the scope of the search was within constitutional
limits. While patting down the
defendant, O'Brien felt an object which he characterized as "hard."
(FN1) He then inserted his thumb in the
defendant's pocket, stretching it open to ascertain its contents. Recognizing the object to be a wad of bills,
O'Brien called for a backup and a witness to the robbery. After a representative from the store stated
that the defendant had the same build as the robber and that the money taken
was mostly ones and fives, O'Brien concluded that the bills were the proceeds
of the robbery and arrested the defendant.
He then took the money out of the defendant's pocket and saw that it was
a stack of 200 five‑dollar bills, folded over.
At the
hearing on the motion to suppress, after O'Brien, on cross‑examination,
at defense counsel's request was asked to put the wad of bills in the
defendant's pocket, the judge, at counsel's request, also felt the money. In his written findings allowing the motion
to suppress, the judged stated:
[42 Mass.App.Ct. 78] "In the area of the right front pocket, O'Brien ran his hand
over the bulge. Although he
characterized it as 'hard', I do not credit the testimony. I find that the bulge was not hard, and was
in any event palpably not a weapon. In
making this finding, I have in mind that at the request of counsel, the
contents of Defendant's pocket at the time of the frisk were placed in the
pocket of the clothes he was wearing during the hearing on this motion, and I
was asked to run my hand over the outside of the pocket, the same way O'Brien
did. Although one could not tell exactly
what the contents were, they were unmistakably softer than a pistol, revolver,
knife, blackjack, or anything else that a reasonable person would believe to be
a weapon or source of potential bodily harm."
The
judge went on to conclude that "[o]nce O'Brien
knew or reasonably should have known that he was feeling something other than a
weapon, any justification for intrusion into the pocket ended."
Commonwealth v. Ferguson, 410 Mass. 611, 614‑615, 574 N.E.2d
990 (1991). See 4 LaFave,
Search & Seizure § 9.5(c) (3d ed.1996).
The
Commonwealth argues that the judge erred because he based his finding on his
own "frisk" under circumstances which were distinguishable from the
actual pat‑down of the defendant conducted by the officer.
The
credibility of Officer O'Brien is not at issue in this case. Although the judge stated that he did not
"credit the testimony" that the bulge when felt was "hard,"
a reading of the transcript of the hearing on the motion to suppress shows that
the judge did not mean that he thought O'Brien was not truthful. To the contrary, on two separate occasions
the judge referred to O'Brien's testimony as truthful and went so far as to
point out that "Officer O'Brien was very, very candid, and I want to put
that right on the record now, that is going to be part of my finding. He was a very candid, and honest, and
truthful witness." (FN2)
[2]
Having found the officer credible, the judge was not warranted[42 Mass.App.Ct.
79]
in considering his own "feel" of the wad of money in the
defendant's pocket to counter the other evidence before him. Although there was no objection by
the Commonwealth, we conclude that the judge should, on his own, have refused
the defendant's request that he feel the bills.
Cf. Schaffner v.
Chicago & N.W. Transp. Co., 129 Ill.2d 1, 29,
133 Ill.Dec. 432, 541 N.E.2d 643 (1989). The question to be decided was whether the
search for a weapon was reasonable in the circumstances confronting the officer
in the field, Terry v. Ohio, 392 U.S.
at 27, 88 S.Ct. at 1883, Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990),
not those facing the judge in the tranquility of the courtroom. Wholly apart from the fact that the judge
knew beforehand that the bulge was a bundle of bills, and apart from questions
such as whether the defendant was standing in the same position, or whether the
difference in his clothing and depth of his pockets caused the wad to rest
against a different part of his body (bone or flesh) or whether the money had
been separated (as stolen, it was in tight wads), two important considerations
were absent from the judge's courtroom examination. First, to all the facts confronting him
O'Brien was entitled to apply his nineteen years of police experience, Commonwealth v. Johnson, 413 Mass. 598,
601, 602 N.E.2d 555 (1992), and second, he "had no more than a few seconds
in which to assess the extent, if any, of the danger, and to ascertain the most
effective and least intrusive means of protecting himself."
Ibid. quoting from
Commonwealth v. Sumerlin, 393 Mass. 127, 129‑130,
469 N.E.2d 826 (1984), cert. denied. 469 U.S. 1193, 105 S.Ct.
972, 83 L.Ed.2d 975 (1985).
Not
only were the conditions of the pat down significantly different in the
courtroom than in the field, (FN3) but, perhaps even more important, the use of
the fact finder in a demonstration of evidence poses a serious problem. It "may have the effect of converting
the participant into a witness for the party conducting the test." Schaffner v. Chicago & N.W. Transp.
Co., 129 Ill.2d at 30, 133 Ill.Dec. 432, 541
N.E.2d 643. As pointed out in that case
where a juror took part in a demonstration, "The juror may acquire knowledge
that is not directly available to the other
[42 Mass.App.Ct. 80] jurors, and opposing
counsel is unable to cross‑examine him on his experience. These concerns militate against the
involvement of jurors in evidentiary demonstrations." (Emphasis supplied.) Ibid. We consider that
permitting the judge to participate in a demonstration where he is the fact
finder, particularly where the question before him, such as hardness, involves
subjective elements, is equally improper.
[3]
Without the inappropriate evidence from the judge's "feel," there was
no evidence supporting the judge's conclusion that Officer O'Brien knew or
should reasonably have known that what he felt was not a weapon which could be
used against him. We reach this
conclusion because of the judge's statements as to the credibility of O'Brien,
and because of other evidence before the judge.
O'Brien described the money when he took it out as "rolled into a
ball, folded in half." He
consistently stated that the package was hard, that he thought it "could
have been a weapon ... something rolled or wrapped in something." Other evidence adduced at the hearing was
consistent with a firm object. The money
stolen from the supermarket included two packages each containing one hundred
five dollar bills and each was one to one and one‑half inches thick and
was wrapped tightly by the bank.
In
considering the reasonableness of the search, the facts of Commonwealth v. Johnson, 413 Mass. at 600‑602, 602 N.E.2d
555, are instructive. After frisking the
defendant in that case, the police withdrew from the defendant's pants a
plastic bag containing a lump of white powder and six small paper folds. The defendant argued that the Commonwealth
had failed to show that the officer believed the package he had felt was a
weapon. The court held that the
dangerous circumstances facing the officer, his police experience, and the need
for taking "swift measures to discover the true facts and neutralize the threat of harm if it
materialized," Terry v. Ohio, supra
at 30, 88 S.Ct. at 1884, permitted the police to find
out what the defendant had concealed inside his pants. "In these circumstances it was not
necessary for the judge to have specifically found that the officer believed
that the bulge inside the defendant's pants was a weapon."
Commonwealth v. Johnson, 413 Mass. at 601, 602 N.E.2d 555. See also
Commonwealth v. Robbins, 407 Mass. at 152, 552 N.E.2d 77, where the Supreme
Judicial Court rejected the finding of the motion judge that at the time of the
search the danger had ceased, saying, "The trooper [was] not required to
gamble with [his] personal safety."
[42 Mass.App.Ct.
81] Having determined that without
the evidence occasioned by the judge's participation the ultimate finding
cannot stand, see Commonwealth v.
Bookman, 386 Mass. 657, 661, n. 6, 436 N.E.2d 1228 (1982);
Commonwealth v. Thinh Van Cao,
419 Mass. 383, 384, 644 N.E.2d 1294, cert. denied, ‑‑‑ U.S. ‑‑‑‑,
115 S.Ct. 2588, 132 L.Ed.2d 836 (1995), we conclude
that the evidence should not have been suppressed. The order suppressing the evidence is
reversed, and the case is remanded to the Superior Court for trial.
So ordered.
FN1.
O'Brien stated that he did not know what the object was. Its "contour or mass [did not make] its
identity immediately apparent" so as to justify its seizure as contraband.
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct.
2130, 2137, 124 L.Ed.2d 334 (1993).
FN2. In his written
findings, the judge stated, "One cannot overemphasize that O'Brien's good
faith is not in issue.... The record
does not permit the slightest doubt that throughout the episode he acted
honestly and fairly toward Defendant."
FN3. Cf. Commonwealth v. Gonzalez, 39 Mass.App.Ct.
472, 476, 657 N.E.2d 1278 (1995), where this court rejected a finding by the
judge based on her own observation of a building for which a search warrant had
issued and pointed to the different circumstances of the officers'
observation. Had the police ascertained
the exact entrance to the apartment by going to the premises before applying
for the warrant, they might have risked disclosure of their surveillance and
jeopardized the investigation.