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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. Fraser, 410
Supreme Judicial Court of Massachusetts,
Argued
Decided
[410
Marina Medvedev, Asst.
Dist. Atty., for the Com.
Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY,
JJ.
LYNCH, Justice.
The
defendant was charged with carrying a firearm without a license and unlawful
possession of ammunition. G.L. c. 269, § 10(a
) (1990 ed.). After a hearing, a Boston
Municipal Court judge denied his pretrial motion to suppress the handgun and
ammunition as the fruits of an unconstitutional search. A single justice of this court granted the
defendant leave to take an interlocutory appeal. Mass.R.Crim.P.
15(b)(2), 378
We
summarize the facts found by the motion judge.
On the evening of
[1][2] On
appeal, the defendant argues that Officer Columbo's
actions violated his rights under the Fourth Amendment to the United States
Constitution. (FN3) The defendant contends, first, that the police
conduct preceding the pat‑down of the defendant's coat constitutes an
unjustified "seizure" in violation of the Fourth Amendment. This unconstitutional seizure, the defendant
contends, infects the subsequent frisk.
We disagree.
Officer Columbo did not "seize" the defendant within the
meaning of the Fourth Amendment merely by approaching him, identifying himself
as a police officer, and asking him to take his hands out of his pockets. In
United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 1877, 64 L.Ed.2d 497 (1980), the United States Supreme Court ruled that
the police have seized a person in the constitutional sense "only if, in
view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Under the
Mendenhall [410 Mass. 544] test, the police do not effect a
seizure merely by asking questions unless the circumstances of the encounter
are sufficiently intimidating that a reasonable person would believe he was not
free to turn his back on his interrogator and walk away. See
Immigration & Naturalization Serv. v. Delgado,
466 U.S. 210, 216‑217, 104 S.Ct. 1758, 1762‑1763,
80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103
S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality
opinion);
Mendenhall, supra 446 U.S. at 555, 100 S.Ct.
at 1877;
Commonwealth v. Sanchez, 403 Mass. 640, 644‑645, 531 N.E.2d
1256 (1988); 3 W.R. LaFave,
Search and Seizure § 9.2(h), at 408‑409 (2d ed. 1987 &
Supp.1991). There were no such intimidating
circumstances in this case. Officer Columbo's request that the defendant remove his hands from
his pockets, without more, was not sufficiently coercive or intimidating to
convert this encounter into a seizure subject to the constitutional requirement
of a showing of objective justification.
Cf. California v. Hodari
D., 499 U.S. ‑‑‑‑, 111 S.Ct.
1547, 113 L.Ed.2d 690 (1991) (officer running after fleeing suspect does not
constitute seizure); Royer, supra, 460 U.S. at 501, 103 S.Ct. at 1326 (asking for and examining suspect's airplane
ticket and driver's license does not constitute seizure).
[3][4]
Officer Columbo's frisk of the defendant's coat,
however, plainly implicates the Fourth Amendment and must be justified by a
showing that Officer Columbo reasonably believed that
the defendant was armed and dangerous.
See Terry v. Ohio, 392 U.S. 1,
27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 63‑64, 88 S.Ct. 1889, 1902‑1903, 20 L.Ed.2d 917 (1968);
Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895 (1974). (FN4)
The defendant contends that Officer Columbo
did [410 Mass. 545] not have such a reasonable belief,
and therefore the defendant urges that we suppress the gun and the ammunition Columbo discovered.
(FN5) Although based on the
judge's scant findings the case is a close one, we hold that the pat‑down
did not violate the defendant's Fourth Amendment rights.
There are
four factors to justify the pat‑down:
(1) the radio call describing a man with a gun; (2) the fact that the encounter occurred in a
"high crime area"; (3) the
defendant's bending down behind the truck "as though to pick something up
or put something down"; and (4) the
fact that at all critical times the defendant kept his hands in his pockets. In weighing these factors, we take into
account "the totality of the circumstances‑‑the whole
picture." United States v. Cortez, 449 U.S. 411,
417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Thus, a combination of factors that are each
innocent of themselves may, when taken together, amount to the requisite
reasonable belief. United States v. Sokolow,
490 U.S. 1, 9‑10, 109 S.Ct. 1581, 1586‑1587,
104 L.Ed.2d 1 (1989).
We turn to
the first factor, the radio broadcast.
In United States v. Hensley,
469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985),
the Supreme Court addressed the question whether an officer of a police
department may make a Terry stop in
reliance on a "wanted flyer" issued by a neighboring police
department indicating that the defendant was suspected of robbery. The Court upheld such [410 Mass. 546] a stop
provided, among other things, that "the police whoissued the flyer or bulletin
possessed a reasonable suspicion justifying a stop" (emphasis in
original). Id. at 233, 105 S.Ct.
at 682. See generally LaFave, supra, §
9.3(f), at 487‑492. Cf. Whiteley v.
Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037,
28 L.Ed.2d 306 (1971) (establishing analogous rule for probable cause);
Commonwealth v. Antobenedetto, 366 Mass.
51, 56, 315 N.E.2d 530 (1974) (same). Of
course, this requirement is equally applicable where information is transmitted
between officers by radio rather than by a wanted flyer, see United States v. Longmire, 761 F.2d
411, 415‑416 (7th Cir.1985) (applying
Hensley in case involving police radio broadcast), and where the contested
police conduct is a protective frisk rather than an investigatory stop. In the instant case, the record is barren of
evidence indicating that the officer responsible for issuing the radio call had
sufficient information to justify a Terry‑type
frisk, or indeed that he had any reliable information about the defendant at
all. Therefore, we are constrained by Hensley to conclude that the radio
broadcast did not, in and of itself, give Officer Columbo
the reasonable suspicion required to conduct a protective frisk. The broadcast, therefore, falls in the
category of a factor which taken alone would not justify the search, but which
taken together with other factors may constitute reasonable suspicion.
We
conclude that, when all the facts are taken together, Officer Columbo had sufficient information to justify the
protective frisk of the defendant. In
sum, the judge found that Officer Columbo
was confronted with the following situation.
In response to a radio bulletin reporting a man with a gun, the officer
found a group of young men at an identical location, which he knew to be a
"high crime area." The
officers were outnumbered. Officer Columbo saw the defendant bend down behind a truck in a
manner suggesting that he might be picking something up or putting something
down, and then the defendant confronted the officer with his hands in his
pockets. Taken together, these
circumstances are enough to warrant belief by a "reasonably prudent man ...
that his safety or that of others was in danger." Terry, supra 392 U.S. at
27, 88 S.Ct. at 1883. [410 Mass. 547] We hold that the pat‑down of
the defendant's coat pocket did not violate the defendant's Fourth Amendment
rights, and we remand the case for further proceedings consistent with this
opinion.
So ordered.
(FN1.) Officer Columbo
was the only witness called to testify at the motion hearing.
(FN2.)
We note that the judge did not specifically find that the defendant failed to
comply with Officer Columbo's request that he take
his hands out of his pockets. The only
evidence offered on this point is the following testimony of Officer Columbo at the motion hearing.
Q.:
"What did you do [after identifying yourself as a police officer]?"
A.:
"At that time I asked him to take his hands out of his pocket [sic ]."
Q.:
"Did he do anything?"
A.:
"Not at that time."
Q.:
"What did you do after you asked him that and he didn't respond?"
A.:
"I did a ... Immediately, I did a frisk of the defendant...."
The
defendant suggests that Columbo's use of the word
"immediately" indicates that the officer frisked the defendant before
the defendant had time to respond to the request that he take his hands out of
his pockets. It appears more likely that
Columbo allowed the defendant time to respond, that
the defendant did not respond, and that the officer then "pat
frisked" him.
(FN3.) The defendant also claims that the
police conduct violated his rights under art. 14 of the Declaration of Rights
of the Massachusetts Constitution. Since
the United States Supreme Court's seminal holding in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), this court has never held that the State
Constitution affords the individual more (or less) protection with respect to Terry‑type stops and frisks under
these circumstances than does the Federal Constitution. Nor does the defendant in this case argue
separately that his rights under art. 14 are broader than his rights under the
Fourth Amendment, or ought to be.
Therefore, we deem the defendant's art. 14 argument to be waived, Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and
we confine our analysis to Federal constitutional principles. Cf.
Sullivan v. District Court of Hampshire, 384 Mass. 736, 741 n. 7, 429
N.E.2d 335 (1981).
(FN4.) This case is anomalous in that the pat‑down
of the defendant was not preceded by a forcible stop, the prototypical
situation addressed in Terry. Officer Columbo
simply patted down the defendant in the course of a nonseizure
field interrogation. Therefore, we do
not address the issue whether Officer Columbo had the
requisite quantum of suspicion to justify a stop. See
United States v. Cortez, 449 U.S. 411, 417‑418, 101 S.Ct. 690, 694‑695, 66 L.Ed.2d 621 (1981) ("a
particularized and objective basis for suspecting the particular person stopped
of criminal activity"); Terry, supra 392 U.S. at 30, 88 S.Ct. at 1884 (reasonable belief "that criminal
activity may be afoot"). This
anomaly also provides a basis for distinguishing our recent decision in Commonwealth v. Couture, 407 Mass. 178,
552 N.E.2d 538 (1990).
A
protective frisk of a suspect under the principles of Terry may be warranted where there is "some legitimate basis
for the officer being in immediate proximity to the person." LaFave, supra, § 9.4(a), at 499. While the justification for an officer's
proximity to a suspect frequently is a
Terry stop, a pat‑down also may be permissible in other situations
where the officer necessarily comes into contact with a person he considers
dangerous. See id. at 508‑512. This
is such a case.
Officer
Columbo had a duty to investigate the report of an
armed man at the location where the defendant was found. Having received a report of an armed man, it
would have been poor police work had the officer left the scene without making
any inquiries. We conclude that the
officer's proximity to the defendant was justified. Therefore, we ask only whether the pat‑down
was supported by a reasonable belief that the defendant was armed and dangerous
even though we recognize that, based on the judge's findings, the officer may
not have had sufficient information to justify an investigative stop under Terry v. Ohio.
(FN5.) The defendant does not contend that
Officer Columbo's pat‑down of the defendant's
coat exceeded the permissible scope of a protective frisk for weapons.