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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Emuakpor,
Present: Kantrowitz, Dreben, & McHugh, JJ.
Steven E. Gagne, Assistant District Attorney, for the
Commonwealth.
Paul L. Carlucci for Christopher Jackson.
Daniel M. Rich for Ken Emuakpor.
Richard W. Foster for Archibald Kollie.
Edward F. Sullivan, Jr., for Quincy Jackson, was present but did not argue.
McHUGH, J.
Each of the four defendants was indicted for
armed robbery and armed assault with intent to rob. At the appropriate point in
pretrial proceedings, each filed a motion to suppress evidence seized by the
police. After a hearing, a judge in the Superior Court concluded that the
police had had an insufficient basis for stopping the defendants' automobile in
the vicinity of, and minutes after, an armed robbery in a nearby shopping mall,
and consequently allowed the motions. Thereafter, a single justice of the
The facts bearing on whether police had reasonable suspicion for stopping the
defendants' car, as found by the motion judge and as supplemented by
uncontested testimony at the suppression hearing, see Commonwealth v. Rivera,
33 Mass. App. Ct. 311, 312 (1992), are as follows: In the early evening hours
of December 10, 2000, shoppers at the Emerald Square Mall (Mall) in North Attleborough were robbed at gunpoint.
As the robbery occurred, Attleboro police Detective Timothy Cook was idling his
unmarked cruiser in a parking lot adjacent to Route 1 about one mile south of
the Mall and about one-half mile south of the North Attleborough-Attleboro
town line. He heard his shift commander broadcast information substantially
similar to the report from the scene, namely that there had been a robbery at
the Mall, that two to three black males were involved, that one of the robbers
had a gun, and that the robbers had fled the scene in an older, grey vehicle.[2]
From his experience, his knowledge of the area and his observation of the
holiday shoppers then crowding Route 1, Detective Cook knew that it would take
about five or six minutes to drive from the Mall to his position. He also knew
that the only exit from the Mall emptied on to Route 1 where a driver had to
choose between going north, toward Boston, or south, toward his position and,
ultimately, to Rhode Island.
Between two and four minutes after he heard the first radio dispatch, Detective
Cook saw what appeared to be an older, grey,[3] four-door car containing
three or four black males. The car was traveling south on Route 1, away from
the Mall and toward
As the car continued south, Detective Cook observed that the occupants appeared
relaxed. In his words, they were "kind of like chilling." Then, after
a minute or two, Detective Cook saw Officer Paul Berard
heading north toward the Mall in a marked cruiser, lights flashing.[5] As Officer Berard
passed the car Detective Cook was following, Detective Cook saw the occupants
"turn[] almost
completely around in their seats to see what that marked unit was doing. . . .
Everybody was moving around. . . . [T]hey . . . were moving. They were bending
down, they were turning around, and they were really making an effort to see
where that police car was going. And then a head would disappear and it would
come back up."
Upon seeing the occupants' reaction to the
passing police cruiser, Detective Cook decided to stop the car. His decision to
do so was based on all of the information he had acquired over the radio, the
time and place where the car appeared in relation to the time when the robbery
took place and, in his words,
"[t]he fact that I made these observations
of these guys when they seen this police cruiser going by. Their behavior
changed immediately when they saw that police cruiser. When they're driving
along, they're just kind of like chilling. I can see there's not a whole lot of
movement in that car; and then all of a sudden this police car goes by and
these guys are really on the move inside that car. To me, they were moving way
too much. There was a lot more movement going on in that car than prior to that
police car passing them."
Because he was in an unmarked car, Detective
Cook radioed Officer Berard in his marked cruiser and
asked for assistance. Officer Berard promptly arrived
and, together, they stopped the suspect car. By the time they did, the officers
had received information from their dispatcher that one of the suspects was
wearing an army jacket, one or more spoke with a foreign accent, and that the
robbers had taken jewelry, cellular telephones, and a wallet.
After the officers stopped the car, they approached it, guns drawn. As they got
closer, Officer Berard saw a camouflage army jacket
draped over the driver's shoulders. Then, as they got closer still and after
they had ordered the occupants to keep their hands in plain view, both officers
noticed that one of the vehicle's occupants spoke with an accent, and at least
one was wearing jewelry.
Following those observations, the officers waited for about a minute or two
until an additional officer arrived. Then the three officers ordered the four
occupants, the defendants here, out of the car, pat frisked them for weapons
and placed them in handcuffs. Officer Berard searched
the vehicle's interior and found a black pellet gun under the driver's front
seat, a wallet belonging to one of the victims inside the glove box, and
several cellular telephones. The victims were brought to the scene and
identified some of the suspects as the robbers, at which point the defendants
were formally placed under arrest. About five minutes had elapsed between the
time Detective Cook first heard a broadcast about the robbery and the time he
stopped the car.
Against that factual backdrop, the Commonwealth claims that the motion judge
erred in allowing the defendants' motion to suppress. The Commonwealth argues
that facts known to Detective Cook and his own observations were sufficient to
warrant the stop, the resulting search of the vehicle and the arrest of the
defendants. In considering the Commonwealth's arguments, "we accept the
motion judge's subsidiary findings of fact absent clear error, and we view,
with particular respect, the conclusions of law that are based on them."
Commonwealth v. Hill,
Applying those legal principles to the facts earlier recited, the initial stop
was justified if the police had a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that the occupants of the grey car had
committed, were committing, or were about to commit a crime.
Deciding whether the police had enough facts to justify a stop is often a
difficult process and this case, like many, is close. Factually, though, the
case is very similar to Commonwealth v. Riggins, 366
That there were two minor differences between the appearance of the car in
which the defendants were riding and the information police on the scene gave
to the
With regard to the difference in the number of occupants in the car, no great
leap of faith is required to know that visible robbers sometimes act with
invisible cohorts. "No authority has been brought to our attention
supporting the notion that a stop is justified only if the number of persons in
a vehicle identified with a reported crime exactly matches the number of
suspects alleged to have been involved in that crime." Commonwealth
v. Varnum,
Similarly, the inconsistency relating to the number of doors of the suspected
car does not alter the conclusion that Detective Cook's stop was based on
reasonable suspicion. Although the existence of reasonable suspicion turns on what
a percipient witness saw and not simply on what a dispatcher broadcast, see
Commonwealth v. Cheek, 413 Mass. 492, 494-495 (1992), the dispatcher's omission
would render Detective Cook's stop unreasonable only if an objectively
reasonable officer would have passed over a four-door car after being told that
the suspects were in a two-door car. But it would be "inappropriate to
assume [that reasonable suspicion] cannot exist absent a full match-up of all
parts of the description." 2 LaFave,
Search and Seizure § 3.4(c), at 241 (3d ed. 1996); 4 LaFave,
Search and Seizure § 9.4(g), at 201 (3d ed. 1996). Police
"must be allowed to take account of the possibility that some descriptive
facts supplied by victims or witnesses may be in error." Ibid. See, e.g., Commonwealth v. Carrington, 20 Mass. App.
Ct. 525, 528 (1985) (Terry stop was lawful where suspect fit the physical
description but was wearing different clothing); Commonwealth v. Dedominicis, 42 Mass. App. Ct. 76, 77 (1997) (suspicion
found reasonable where dispatcher stated three suspects were heading in
officer's direction and officer stopped a lone man who appeared nervous and was
sweating during mild weather). See also Brinnon v.
State, 376 So. 2d 769 (1979) (probable cause existed
although dispatch description stated number of suspects was three and
defendant's car held four; that car was black with a red roof and defendants'
car was red with a black roof; and that the make of the car was Chevrolet and
defendant's car was a Ford).
A reasonable officer in Detective Cook's position could very reasonably have
assumed that the victims mistakenly thought that the getaway vehicle had two
doors rather than four. Indeed, the fact that the witnesses in this case were
wrong illustrates that limiting police discretion to a "neat set of legal
rules" is counterproductive. Ornelas v.
"Once the [valid basis] for a stop [is] established, 'the pertinent
inquiry is whether the degree of intrusion is reasonable in the
circumstances.'" Commonwealth v. Varnum,
Here, the officers at the scene were facing four men whom they suspected of
involvement in an armed robbery minutes earlier. They were on a highway
surrounded by holiday shoppers. Blocking the car and approaching with drawn
guns was, in the circumstances, a restraint proportional to the kind and degree
of suspicion that prompted the stop and did not convert that stop into an
arrest.
The order suppressing the evidence is reversed, and the cases are remanded to
the Superior Court for trial.
So ordered.
FOOTNOTES:
[1]
Archibald Kollie, Quincy Jackson and Christopher
Jackson.
[2] The broadcast information reached Detective Cook
through a circuitous route.
[3] It was dark at
[4] Detective Cook was generally aware of the general
path the broadcast information had taken before it reached him. See note 2,
supra. He knew, therefore, that the robbery had occurred more than two to four
minutes before he had spotted the car.
[5] Detective Cook testified that Officer Berard had also activated his siren. Officer Berard testified, and the motion judge found, that he had
not. Nothing turns on the differing recollections.
[6] Indeed, by the time the defendants were placed in
handcuffs, the police had seen the camouflage jacket and had heard the accent.
Although we find it unnecessary to decide the point, those observations,
combined with all of their other knowledge, may well have given them probable
cause to arrest the defendants.
[7] The defendants properly do not argue that the
search of the car's interior exceeded the bounds of an investigatory stop.
"[A] . . . search [as part of an investigatory stop] may extend into the
interior of an automobile so long as it is limited in scope to a protective
end." Commonwealth v. Almeida, 373