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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Fitzgibbons, 23 Mass.App.Ct.
301 (1986)
Appeals Court of Massachusetts,
Argued
Decided
David B. Mark, Asst. Dist. Atty. (John P. Noyes, Legal Asst. to the Dist.
Atty., with him) for Com.
Charles A. Clifford,
Before ARMSTRONG, QUIRICO
and DREBEN, JJ.
ARMSTRONG, Justice.
The
defendant is charged with unlawfully carrying a firearm, G.L.
c. 269, § 10(a ), and possession of
marihuana, G.L. c. 94C, § 34. The Commonwealth appeals [23 Mass.App.Ct. 302] from an order of a judge of the Boston Municipal Court allowing
the defendant's pretrial motion to suppress the firearm and the marihuana. These had been seized, according to the
judge's findings, in the following circumstance.
About
11:00 P.M. on the evening of July 4, 1985, Boston Police Officer Carl Nemes and his partner, patrolling in a cruiser, received a
radio dispatch telling them to be on the lookout for a blue Pinto hatchback
automobile driven by a white man and bearing Massachusetts registration 735‑KLW. The driver, according to the dispatch,
"had pointed a handgun, perhaps an automatic weapon, at a group of
citizens at Marlborough and Arlington Streets." The Pinto was said to be heading outbound on
Arlington Street. Officer Nemes, who was nearby, drove the cruiser on what he hoped
would be an interception course and within five minutes was passed by a blue
Pinto headed in the opposite direction.
The registration plate number matched the broadcast. Officer Nemes did a
U‑turn and followed the Pinto, radioing for assistance. Two other cruisers arrived and together,
forming a box around the Pinto, they forced it to the roadside and stopped
it. Officer Nemes
drew his service revolver and approached the driver's door, ordering the
defendant out. The defendant
complied. Through the open door Officer Nemes saw an automatic weapon on the floor on the driver's
side. He arrested the defendant and
seized the firearm. (The marihuana was
found in the defendant's left sock later, at the police station, through an
inventory search.)
It is
apparent from the record that the judge read
Commonwealth v. Bottari, 395 Mass. 777, 482
N.E.2d 321 (1985), as requiring him to rule, on these facts, that the stop of
the defendant's vehicle by boxing it in and the approach at gunpoint
constituted an arrest, dependent for its validity on antecedent probable cause,
and that it could not be justified as a
Terry‑stop (FN1), which would require only a reasonable and articulable suspicion.
We do not think that the Bottari decision established an inflexible rule to that
effect, and, accordingly, we reverse.
[23 Mass.App.Ct.
303] In the Bottari case the Boston police had
received a report from an informant (FN2) that Bottari
was carrying a handgun unlawfully and that he could be found at a certain
shopping center parking lot in Somerville.
His car was particularly described.
The Boston police notified the Somerville police, whose officers, some
two and a half hours later, went to the lot and saw the car. After a wait of another three quarters of an
hour or an hour, Bottari and his companions, not
acting suspiciously, approached and entered the parked car. The officers blocked off the car and ordered
the men out at gunpoint. The officers
then searched the glove compartment and the trunk of the car, where they found
unlawful weapons. The Supreme Judicial
Court sustained a finding by the trial judge that in these circumstances the
stop amounted to an arrest. The decision
emphasized that, on the judge's findings, the officers did not fear for their
safety or the safety of others at the time they approached the car with guns
drawn, and that a different result might be reached in "the presence of
other fear‑provoking circumstances which are absent here." 395 Mass. at 782, 482 N.E.2d 321.
It is
important to observe that the Bottari decision did not purport to be laying down a
special rule, under the Massachusetts Constitution, more restrictive of Terry stops than that formulated in
Federal cases decided under analogous provisions of the United States
Constitution. To the contrary, the Bottari
decision cited and relied on Federal decisions (United States v. Strickler, 490 F.2d 378,
380 [9th Cir.1974]; United States v. Marin, 669 F.2d 73, 81
[2d Cir.1982] ) which had held gunpoint stops of vehicles to be arrests in the
particular circumstances of the cases.
It noted and distinguished United [23 Mass.App.Ct.
304] States v. Jackson, 652 F.2d
244, 248‑250 (2d Cir.1981), which had held a comparable stop to be
justifiable on the facts of that case under
Terry principles despite the absence of probable cause to arrest.
The Jackson case is representative of a
well established line of Federal authority holding that the boxing in of a
moving vehicle and approach by the police at gunpoint do not as matter of law
vitiate a justification of the stop under
Terry principles. Obviously such
stops are highly intrusive. The
pertinent inquiry is whether the degree of intrusiveness is reasonable in all
the circumstances.
In United States v. Hensley, 469 U.S. 221,
105 S.Ct. 675, 83 L.Ed.2d 604 (1985), police had
sighted a car whose occupants were thought to be armed and dangerous. Id.
at 223‑224, 105 S.Ct. at 677‑678. They pulled the car over with flashing
lights, approached the car with guns drawn, and ordered the occupants out of
the car. A unanimous court held that the
police "were authorized to take such steps as were reasonably necessary to
protect their personal safety and to maintain the status quo during the course
of the stop. The ... officers' conduct
was well within the permissible range for the context of suspects who are
reported to be armed and dangerous." Id. at 235, 105 S.Ct.
at 684. The Hensley case was analyzed as a
Terry stop, not one grounded in probable cause.
In United States v. Jones, 759 F.2d 633
(8th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct.
113, 88 L.Ed.2d 92 (1985), the court held that blocking did not turn a stop
into an arrest, noting that "[b]locking generally will be reasonable when
the suspect is in a vehicle because of the chance that the suspect may flee
upon the approach of police with resulting danger to the public as well as to
the officers involved." Id. at 638. (FN3)
The court also said: "An
approach to a car by officers with guns drawn does not elevate an investigative
stop into an arrest, if the police action is reasonable under the
circumstances." Ibid.
In United States v. Jackson, supra, police
officers stopped a car headed outbound from the scene of a bank robbery which [23 Mass.App.Ct.
305] had taken place five minutes
earlier. The driver looked similar in
age and complexion to the reported robber (FN4) and seemed purposefully
unconcerned with the police activity around him. The stop of the vehicle and the approach with
a drawn gun were held not to convert the stop into an arrest. "Although the drawing of a weapon may be
a significant factor in determining whether a suspect is under arrest, it is
not dispositive of the issue." 652 F.2d at 249. "To allow such protective measures to
transform an investigative stop into an arrest would create a dangerous dilemma
for the police officer in those situations, like this one, where suspicion does
not rise to the level of probable cause.
If the officer approaches a suspected robber with his gun still in his
holster, he increases the risk that he will be shot. If, on the other hand, he protects himself by
drawing his gun, he increases the risk that a court will set the criminal free
by construing his action as an illegal arrest.
We decline to impose such a Hobson's Choice on our law enforcement
personnel." Id. at 249‑250. To the same effect, see the numerous cases
cited in United States v. Ceballos, 654 F.2d 177, 183 (2d Cir.1981).
[1] Thus,
proceeding from the Fourth Amendment's overriding command of reasonableness,
both Federal and State cases have recognized the right of police officers to
adapt to the special public safety considerations that characterize car stops. These considerations are several. First, "[a] motorist does not have the
same communicative potential with a police officer [that] a pedestrian
has. The pedestrian being in more or
less face‑to‑face contact with the confronting officer is able to
assess the officer's purpose and determine whether he is free to continue on
his way. The motorist, however, is
effectively separated from anyone who is not in his automobile."
People v. Lang, 66 Ill.App.3d 920, 924, 23 Ill.Dec.
15, 383 N.E.2d 782 (1978). Second, when
an officer in a patrol car motions a suspect to pull over, the suspect,
particularly if guilty of serious crimes, might flee, starting a high‑speed
chase endangering bystanders over a wide area.
See e.g., United [23 Mass.App.Ct.
306] States v. Harley, 682 F.2d
398 (2d Cir.1982) (ninety‑mile per hour chase down Harlem River
Drive). A fleeing pedestrian, by
contrast, generally poses little risk to the general public. Third, when approaching a stopped car, a police
officer is to some degree impaired in seeing whether a person therein may be
drawing a gun.
Cognizant
of these special public safety considerations, courts have held that the boxing
in of a vehicle is only one factor to consider in determining whether a car
stop constitutes an arrest, United States
v. Vargas, 633 F.2d 891, 895‑896 (1st Cir.1980). Similarly, "there is no hard and fast
rule concerning the display of weapons. Terry stops are narrow but fluid
exceptions to the warrant and probable cause requirements of the Fourth
Amendment. What might be unreasonable
when an officer merely suspects that a minor offense has been committed is not
unreasonable when, as here, officers have reason to fear that a suspected
criminal is armed. The nature of the
crime under investigation, the degree of suspicion, the location of the stop,
the time of day, the reaction of the suspect to the approach of police are all
facts which bear on the issue of reasonableness." United States v. Harley, supra,
at 402.
The
distinguishing feature of a Terry
stop is that the intrusion is temporary, and in degree it is not excessive or
incommensurate with the accomplishment of its purpose. Florida v. Royer, 460 U.S.
491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229
(1983). "Terry and Royer state a
'principle of proportionality.' " Commonwealth v. Borges, 395 Mass. 788,
794, 482 N.E.2d 314 (1985) (decided the same day as Bottari ). Without
exceeding Terry guidelines, the police may do what is necessary to command
the suspect's attention and bring him to a stop, United States v. Gomez, 633 F.2d 999, 1006 (2d Cir.1980);
Terry v. Ohio, 392 U.S. at 32‑33, 88 S.Ct.
at 1885 (Harlan, J., concurring), and to protect themselves and the public from
unnecessary exposure to risk of injury. Commonwealth v. Ballou,
350 Mass. 751, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). (FN5)
"The degree of [23 Mass.App.Ct. 307]
intrusiveness on a citizen's personal security, including considerations of
time, space, and force, must be
proportional to the degree of suspicion that prompted the intrusion."
Commonwealth v. Borges, supra 395 Mass. at 794, 482 N.E.2d 314,
citing Bottari
(emphasis supplied). Under State as well
as Federal law, it is not the use of force per se but, rather, the "use of excessive force in detaining a suspect
[that] may raise the nature of a seizure from an investigatory stop to the
level of an arrest requiring probable cause." Id. at 793 n. 3, 482 N.E.2d
314 (describing the holding in the Bottari case).
We turn
then to the question whether the blocking of the defendant's car and the
approach by an officer with a gun drawn was so intrusive as to be tantamount to
an arrest. Resolution of this question,
by its nature, must depend upon the particular facts of each case.
United States v. Ceballos, 654 F.2d at
182. Fortunately, the judge has made
detailed subsidiary findings, from which this court may appropriately exercise
its judgment in drawing fair inferences.
[2] We
start from the proposition, conceded by the defendant (see note 2, supra ), that the police had grounds
for a Terry stop. (FN6)
The radio dispatch, corroborated in significant part by the presence of
the defendant's car traveling outbound minutes after the report, indicated the
possible commission of two serious crimes:
carrying a handgun unlawfully, which, under a well [23 Mass.App.Ct. 308] publicized Massachusetts law (G.L. c.
269, § 10[a ] ), guarantees a minimum
mandatory sentence of a year in prison, and assault with a dangerous weapon,
which, under G.L. c. 265, § 15B(b ), carries a term of up to five years in a State prison. The certainty of imprisonment if guilt was
established made flight a realistic possibility. The defendant's reported behavior was
indicative of impulsiveness. In the
circumstances it is not reasonable to find that the police used excessive force
by anticipating the possibility of flight and guarding against it by boxing in
the defendant's car.
[3] An
approach with drawn guns is generally thought excessive in the absence of any
suggestion that the defendant is armed or other circumstances suggesting the
possibility of violence. Here, the
defendant not only had been reported to be armed, possibly with an automatic
weapon (as turned out to be the fact) but, in a point that distinguishes this
case sharply from the facts in Bottari, he was reported to have drawn the weapon and,
inferentially, threatened a group of persons with it, only
minutes prior to the stop. The police
could not calibrate finely the danger they were facing in approaching the car, but,
in our view, on the limited leads they had, the police officers were fully
justified in preparing for the worst case:
an impulsive, possibly violent resistance to arrest by one armed with an
automatic weapon whose motions were largely obscured from their view. Until the defendant was out of the car (FN7)
with hands raised, the risk justified the officer's approaching the driver's
door with his revolver drawn and aimed.
The intrusion was obviously great, but it was momentary in duration and,
under the rule of proportionality, was not excessive to the risk [23 Mass.App.Ct.
309] the officer was facing at that
moment. The intrusiveness did not,
therefore, exceed the scope of a Terry‑type
stop. (FN8)
[4] It
follows that the seizure of the automatic weapon was lawful, as it lay on the
floor of the car, in plain view through the open door. Commonwealth v. Moynihan,
376 Mass. 468, 472, 381 N.E.2d 575 (1978).
The weapon gave probable cause for the ensuing arrest. No contention is made that, if the arrest was
lawful, the police did not lawfully conduct the inventory search that disclosed
the packet of marihuana. (FN9)
The order
allowing the defendant's motion to suppress is reversed, and the case is
remanded for trial.
So ordered.
(FN1.)
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).
(FN2.)
The court in Bottari
held that the report did not amount to probable cause under the standards of
art. 14 of the Declaration of Rights of the Massachusetts Constitution, as
defined in Commonwealth v. Upton, 394
Mass. 363, 374, 476 N.E.2d 548 (1985).
The Commonwealth makes no contention in this case that the anonymous (so
far as we know) tip here did amount to probable cause. The defendant (appropriately in view of the
quick confirmation of the tip by the appearance of the defendant headed
outbound minutes after the dispatch) expressly conceded in the trial court and
concedes here that the police had grounds that rose to the level of reasonable,
articulable suspicion under Terry analysis.
(FN3.)
The same was implicitly held in
Commonwealth v. Riggins, 366 Mass. 81, 315 N.E.2d 525 (1974), where a
blocking stop by two police cruisers was treated as justified under Terry principles.
(FN4.)
The officers soon realized that he differed in weight and clothing. The man described in the broadcast report was
hiding in the trunk.
(FN5.)
The Ballou
case was not overruled by the Bottari case but was distinguished on its facts. See Bottari, 395 Mass. at 782 n. 5, 482 N.E.2d 321. "[A]lthough Ballou was decided
prior to Terry v. Ohio, ... the court
treated the Ballou
incident as a stop and frisk justified on the facts known to the police,
including their reasonable concern for their own safety. Commonwealth v. Ballou, supra[, 350 Mass.] at 756‑757 [217 N.E.2d
187]." Id.
It is worth noting, also, that the
Ballou decision makes clear that the officers'
concern for their own safety is a fact that can be inferred from all the
circumstances: it does not necessarily
depend on direct testimony. "We
reject the assertion that nothing in the evidence ... suggests that Captain Bulens conducted a 'frisk' in order to protect
himself. This contention denies to him
the quality of elementary human intelligence.
His act of unsnapping the top of his holster showed an awareness of
peril and that self‑defense was in his mind." Commonwealth v. Ballou, supra 350 Mass. at 756‑757, 217 N.E.2d
187.
(FN6.)
The concession makes it unnecessary for us to consider whether the dispatcher's
testimony might otherwise have been necessary to establish the grounds for the
stop. See Commonwealth v. Antobenedetto, 366 Mass.
51, 315 N.E.2d 530 (1974); Commonwealth v. Wainio,
7 Mass.App.Ct. 863, 385 N.E.2d 1023 (1979); Smith, Criminal Practice and Procedure § 121,
at 88 & n. 4 (2d ed. 1983). See also United States v. Hensley, 469 U.S. at
233, 105 S.Ct. at 683.
(FN7.)
In Pennsylvania v. Mimms,
434 U.S. 106, 109‑111, 98 S.Ct. 330, 332‑333,
54 L.Ed.2d 331 (1977), it was held that, if the stop of a vehicle is lawful,
the police officers may order the driver to get out of the car even in the
absence of reason to think he may be armed.
Compare Commonwealth v. King,
389 Mass. 233, 243‑244, 449 N.E.2d 1217 (1983), where the court held
excessive an order that a passenger get out of a stopped car after the police
officer had finished checking licenses and registration and had found nothing
suspicious.
(FN8.)
Subsequent to the argument of this appeal, the Supreme Judicial Court decided Commonwealth v. Sanderson, 398 Mass.
761, 500 N.E.2d 1337 (1986) (dated December 10, 1986). Although the stop in that case was held, on
the facts found, to be an arrest, the principles applied here are not at
variance with the principles applied there.
In Sanderson the police (1)
detained the suspect for forty minutes, while (2) additional police officers,
ultimately totaling six, plus a police dog, gathered, in circumstances where
(3) "the officers had no reason to believe the defendant was armed [and
thus] did not frisk him or draw their weapons." Id. at 764, 500 N.E.2d
1337. The court concluded that
"[c]learly the police ... were detaining the
suspect for purposes of making a search for contraband." Id.
at 767, 500 N.E.2d 1337, quoting from
Commonwealth v. Borges, 395 Mass. 798, 482 N.E.2d 314 (Hennessey, C.J., concurring).
(FN9.) The judge did not make a finding that
the inventory search of the defendant's person at the police station was
conducted in accordance with standard police procedures, see Commonwealth v. Wilson, 389 Mass. 115,
117, 448 N.E.2d 1130 (1983); compare Commonwealth v. Ierardi,
17 Mass.App.Ct. 297, 299 n. 1, 457 N.E.2d 1127
(1983); but this only reflects the fact
that the defendant's motion to suppress and his supporting memorandum of law
raised no question in that respect.
Contrast Commonwealth v. Ford,
17 Mass.App.Ct. 505, 459 N.E.2d 1242 (1984), S.C., 394 Mass. 421, 476 N.E.2d 560
(1985), as to inventory searches of automobiles.