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Commonwealth v. Grinkley, 44 Mass.App.Ct. 62 (1997)
Appeals Court of Massachusetts,
Middlesex.
No. 96‑P‑1131.
Argued
Decided
Eric J. Weinstein,
Ann T. McGonigle, Assistant District Attorney, for
the Commonwealth.
Before BROWN, SMITH and LAURENCE, JJ.
LAURENCE, Justice.
Responding
to a telephone report about black youths with a gun in a public playground,
investigating
The facts
on which the motion judge ruled were presented through the testimony of the
sole witness at the suppression hearing,
"that a woman, whose name
was given, was calling stating that she had seen a gun down at the Mary
Dennison Field, on Beaver Street. That
there was a group of black youths, and Hispanic youths there. That the group of black youths were by the
tennis courts, and that they had a gun.
And that she thought there was going to be a fight."
Several
officers were sent to the area to investigate, and Slattery went independently
"to assist." The Mary
Dennison Field is a large, public recreational facility that contains
playgrounds, tennis courts, lighted basketball courts (which are "quite a
distance away" from the tennis courts), and softball diamonds. It is a popular summer "hangout"
for youths in a neighborhood that is racially and ethnically mixed but is not
(at least was not so described by Slattery) a high‑crime area. Slattery parked his police vehicle in a
funeral home parking lot at the rear of the field opposite the Beaver Street
side so as to be in a position to intercept "anybody [who] came
running."
As
he watched from his location, he noticed a group of Hispanic youths gathered at
the distant basketball courts. He also
saw several officers approach a group of black youths who were by the tennis courts. (FN1)
As the officers approached, the group "suddenly broke up ... [a]nd
they started walking toward the wood[s]" at the edge of the field. Slattery thought that they were walking
"quickly" but conceded that they "weren't running." He heard his fellow officers begin
"shouting, and ... [44
Mass.App.Ct. 64] waving the kids
back to where they ... had been."
Some of the youths entered the woods but then reemerged to join the
others, who had stopped and returned in response to the police shouting and
waving. (FN2) Slattery then left his position in the
parking lot and walked by the two groups into that part of the woods where he
had seen some of the youths go, in order to determine whether they had
"dumped the gun" there.
Finding no gun, he went back to make sure things were under control and
to assist the other officers in "pat[ting] the group down."
Only
then did Slattery notice Grinkley, as he was being questioned by another
officer. Slattery recalled that he had
previously arrested Grinkley for assault and battery with a dangerous weapon (a
knife), an arrest that resulted in Grinkley's conviction. Slattery also recognized another of the
youths as someone whom he had arrested, and who was subsequently convicted, for
armed robbery with a handgun. Slattery
heard Grinkley give the inquiring officer a name Slattery knew to be
false. When Slattery challenged
Grinkley's response, Grinkley persisted in his refusal to admit his real
name. At that point Slattery, concerned
that the reported gun had not been discovered, "went to pat him
down." (FN3) Grinkley resisted the pat, pulling back twice
and guarding his right pocket area with his hand, despite Slattery's order to
keep his hands in the air. Pushing
Grinkley's hand away, Slattery succeeded in putting his hand on the pocket and
felt a hard, round, cylindrical object that he thought could be a weapon. Slattery then pulled out of the pocket two
plastic, "orange, semi‑transparent" prescription bottles, one
on top of the other, that contained labels for ibuprofen tablets bearing
Grinkley's name.
As
Slattery "started looking ... at the bottles more carefully,"
Grinkley denied that they were his.
Slattery immediately realized that what he had found was not a weapon or
a danger to the officers. Holding the
bottles in front of him and spinning them around, he saw that they contained
small glassine bags with a white substance in them as well as tablets. Based on his [44 Mass.App.Ct. 65]
previous experience as a narcotics investigator, Slattery recognized this as a
common form of packaging crack cocaine for street level sales and opened the
bottles. Grinkley suddenly started
running toward the woods but was apprehended and arrested after a struggle. (FN4)
[1][2]
Based upon Slattery's essentially uncontested testimony, the motion judge
concluded that the incriminating drugs had been obtained as the result of a
valid investigative stop and frisk. That
conclusion did not, however, find evidentiary support in Slattery's testimony or
the reasonable inferences therefrom. (FN5)
The judge erred most critically in ruling that the informant's tip
constituted a sufficient basis for reasonable suspicion to stop the defendant,
in finding that Slattery had "corroborate[d] much of the informant's
information" at the scene, and in finding that the stop of Grinkley was
justified because Slattery recognized Grinkley and another youth. (FN6)
[3][4][5][6]
In "stop and frisk" cases, the primary inquiry is whether a [44 Mass.App.Ct. 66] police officer may make the stop
because he has "reason to suspect that a person has committed, is
committing, or is about to commit a crime." Commonwealth v. Silva, 366
Mass. 402, 405, 318 N.E.2d 895 (1974), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). The reasonableness of the
officer's suspicion depends upon the existence of "specific and
articulable facts and the specific reasonable inferences which follow from such
facts in light of the officer's experience.
A mere 'hunch' is not enough.
Simple good faith on the part of the officer is not enough. The test is an objective one," id. at 406, 318 N.E.2d 895,
"view[ing] the circumstances as a whole." Commonwealth v. Stoute, 422
Mass. 782, 790, 665 N.E.2d 93 (1996).
(FN7)
[7]
When police suspicion arises not from officers' own observations but from an
informant's tip, as here, the Commonwealth has the burden of establishing both
the informant's reliability and the basis of her knowledge, although police
corroboration may make up for deficiencies in one or both of those factors.
Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). (FN8)
The motion judge determined that the tip here satisfied those
requirements because it came "from a named informant who gives a detailed
description of two groups of youths at a specific location (tennis court)
within a park, a specific time and the fact that one of them had a
gun." The judge's conclusion that
the tipster's basis of knowledge was established by her recitation of "specific
details" is questionable on this record.
[8]
It might be inferred that the tipster had, as she asserted, personally observed
the matters she recounted, and that there was a need for the police to act
quickly because of the perceived threat to public safety. Those inferences might justify brevity and a
lesser degree of detail. See Commonwealth v. Anderson, 366 Mass.
394, 399, 318 N.E.2d 834 (1974).
Nevertheless, the information supplied here as to the individuals
involved was neither specific [44
Mass.App.Ct. 67] nor detailed. Other than the report of a gun (which we
discuss below), the tip was merely generally descriptive of race, ethnic
identity, and location in a public place normally frequented by youths‑‑all
obvious, nonincriminating facts that would be easily observable to any bystander. Such data do not bespeak the kind of
"inside information" that provides a legitimate inference of personal
knowledge. See Commonwealth v. Lyons, 409 Mass. at 20‑21 & n. 5, 564
N.E.2d 390. Unparticularized racial
descriptions, devoid of distinctive or individualized physical details‑‑even
were they of a certain person and not, as here, of an entire group‑‑cannot
by themselves provide police with adequate justification for stopping an
individual member of the identified race who happens to be in the general area
described by the informant. See Commonwealth v. Spence, 403 Mass. 179,
181, 526 N.E.2d 1054 (1988); Commonwealth v. Cheek, 413 Mass. 492, 495‑496,
597 N.E.2d 1029 (1992). Contrast Commonwealth v. Cast, 407 Mass. 891,
896‑897, 556 N.E.2d 69 (1990) (unnamed informant's basis of personal
knowledge shown by the facts that he "named the defendant, described his
appearance, gave his phone number, knew of his national origin and citizenship
status, how he had obtained that status as a result of marriage to a
Massachusetts native, and described the anglicization of his name, his pickup
truck, and his employment situation ... [and his use of] luxury automobiles and
expensive hotels in conducting his business ... [which] level of detail
[reflected] ... 'direct knowledge ... based on personal observation and
contacts which went materially beyond "a casual rumor ... or [knowledge
of] ... an individual's general reputation" ' "); Commonwealth v. Fleming, 37
Mass.App.Ct. 927, 928, 639 N.E.2d 735 (1994).
Nonetheless,
despite the fact that what the tipster described "did not reveal any
special familiarity ... that might substitute for explicit information about
the basis of the caller's knowledge,"
Commonwealth v. Lyons, 409 Mass. at 20‑22, 564 N.E.2d 390, we will
accept the adequacy of the informant's basis of knowledge on the authority of Commonwealth v. Alvarado, 423 Mass.
266, 271, 667 N.E.2d 856 (1996) (anonymous telephone caller's statement that he
or she had seen several "Hispanic subjects" in a blue car in the
driveway of 138 Jackson Street and a handgun wrapped in a towel in the vehicle
permitted inference of recent first‑hand observation). As in
Alvarado, the more difficult question is whether the police had an adequate
basis for concluding that the informant was reliable.
[44 Mass.App.Ct. 68] As just discussed, the tip did not contain the qualitative or
quantitative detail that stamps it with an important indicium of
reliability. See Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. 499, 505‑506,
665 N.E.2d 1005 (1996), and cases cited,
S.C., 425 Mass. 99, 103‑104, 682 N.E.2d 586 (1997). Cf.
Commonwealth v. Rojas, 403 Mass. 483, 487, 531 N.E.2d 255 (1988). Contrast
United States v. McClinnhan, 660 F.2d 500 (D.C.Cir.1981);
United States v. Clipper, 973 F.2d 944 (D.C.Cir.1992);
United States v. Gibson, 64 F.3d 617 (11th Cir.1995) (tips about
guns all described a certain individual with particularity as possessing the
gun). The Commonwealth argues that the
informant's having provided police with her name and address sufficiently
bolstered her reliability. It is true
that our cases have stated that when information is reported to the police by
"a named and identified person" rather than a "faceless
informer," Commonwealth v. Atchue,
393 Mass. 343, 347, 471 N.E.2d 91 (1984);
or by an identified "private citizen" or " 'ordinary
citizen,' " Commonwealth v. Burt,
393 Mass. 703, 710, 473 N.E.2d 683 (1985);
or by a named " 'concerned citizen[ ]' " calling out of civic
duty, Commonwealth v. Rojas, 403
Mass. at 488, 531 N.E.2d 255, "[t]he strict requirements of reliability
which govern an analysis of an anonymous informant's trustworthiness are
relaxed...." Commonwealth v. Freiberg, 405 Mass. 282,
297, 540 N.E.2d 1289 (1989).
Nonetheless,
the cases cited by the Commonwealth in support of a relaxed standard of
reliability involved individuals personally known to the police, most of them
past reliable informants, and not, as here, a person previously unknown to and
never actually met by the police.
Compare Commonwealth v.
Ciaramitaro, 26 Mass.App.Ct. 110, 114‑115, 524 N.E.2d 116 (1988);
Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. at 500, 665 N.E.2d
1005. Furthermore, other cases holding
that the reliability of a tip from a private citizen is substantially strengthened
when the citizen is identified by name and address are also distinguishable
from the
present situation. Compare Commonwealth v. Atchue, 393 Mass. at
344‑349, 471 N.E.2d 91 (informant, identified by name, address, and date
of birth, gave detailed description of specific stolen items and their exact
location); Commonwealth v. Grzembski, 393 Mass. 516,
520‑521, 471 N.E.2d 1308 (1984) (citizen provided police with a detailed
written and signed statement); Commonwealth v. Burt, 393 Mass. at 707‑710,
473 N.E.2d 683 (person informing police of criminal activity was a municipal
officer identified by name and address and did so in a face‑to‑face
encounter with [44 Mass.App.Ct. 69] the police); Commonwealth v. Freiberg,
405 Mass. at 296 n. 7, 298, 540 N.E.2d 1289 (informant was not only named and
identified but described the criminal activity and its perpetrator in great
detail and personally assisted the police at the scene of the crime);
Commonwealth v. Bakoian, 412 Mass. 295, 297, 301, 588 N.E.2d 667
(1992) (identified informant was previously known to police as a source of
credible information and provided specific details to the defendants' exact
identities, destination, and time of arrival); Commonwealth v. Stoute, 422
Mass. at 783‑784, 790‑791, 665 N.E.2d 93 (tip that defendant had a
gun came from a bystander who spoke face‑to‑face with the police in
a high crime area and "who could have been identified"). See generally 2 LaFave, Search and Seizure §
3.4(a), at 219‑220 (3d ed. 1996)
("It does not follow ... that if the name of the person providing the
information is disclosed, then he is
by virtue of that fact alone properly characterized as a citizen‑informer
entitled to the presumption of reliability....'
[That] is one factor which may be weighed in determining
[reliability]").
Unlike
those cases, the informant's stated identity here could not be verified because
she did not leave a telephone number and presumably could not be contacted by
the police. See Commonwealth v. Melendez, 407 Mass. 53, 58 n. 4, 551 N.E.2d 514
(1990). Contrast Commonwealth v. Cast, 407 Mass. at 898, 556 N.E.2d 69;
Commonwealth v. Va Meng Joe, 425 Mass. at 103‑104, 682 N.E.2d
586. Her inaccessibility (and resultant
unaccountability for providing false information, see G.L. c. 269, § 13A) made
this informant barely distinguishable from an anonymous tipster. Analogous to the concern raised in Commonwealth v. Lyons, that
"[a]nyone can telephone the police for any reason," 409 Mass. at 21,
564 N.E.2d 390, is the reality that anyone can claim over the telephone to be a
particular individual with impunity if that claim cannot be verified. Contrast also Commonwealth v. Johnson, 36 Mass.App.Ct. 336, 631 N.E.2d 71 (1994)
(individual who reported to the police that the defendant was carrying a
handgun in her purse was "a neighborhood person (FN9) known to" the
patrolling police officer); Commonwealth v. Vazquez, 426 Mass. 99,
100‑103, 686 N.E.2d 993 (1997)[44
Mass.App.Ct. 70] (several individuals on a public street approached
a police officer, independently informed him that a man brandishing a gun had
been chasing another man down the street, and pointed out the alleged assailant
to the officer).
[9][10]
Whatever the insufficiencies in an informant's tip, we recognize that
"[w]hen a tip ... concerns the possession of a firearm, it deserves the
immediate attention of law enforcement officials." Commonwealth v. Stoute, 422
Mass. at 790, 665 N.E.2d 93.
Nonetheless, such a tip is not, standing alone, a basis for reasonable
suspicion of criminal activity, because the mere possession and carrying of a
gun is not a crime. Commonwealth v. Couture, 407 Mass. 178,
181, 183, 552 N.E.2d 538 (1990) (police had no reason to believe defendant did
not have a license to carry firearm); Commonwealth v. Alvarado, 423
Mass. at 271, 667 N.E.2d 856.
(FN10) Police observations in
discharge of that duty of prompt investigation can provide adequate
corroboration to "make up for deficiencies in" the informant's
reliability. Commonwealth v. Lyons, 409 Mass. at 19,
564 N.E.2d 390. Corroboration by police
of an informant's predictions as to what the police will find, particularly
predictive information regarding "nonobvious details" beyond those
apparent to a casual bystander, is perhaps of greatest significance in
justifying police inquiries in reliance on the tip. Id. at 20‑21, 564
N.E.2d 390. Commonwealth v. Va Meng Joe, 40
Mass.App.Ct. at 506‑507, 665 N.E.2d 1005, and cases cited.
Unlike
the cases in which police observations confirm all or most of the nonobvious
predictive details of an informant's tip, e.g. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3
L.Ed.2d 327 (1959); Commonwealth v. Cast, 407 Mass. at 897‑900,
556 N.E.2d 69; Commonwealth v. Va Meng Joe, 425 Mass. at
103‑104, 682 N.E.2d 586, or confirm facts communicated by a tipster that
are suggestive of criminal conduct, e.g.
Commonwealth v. Valdez, 402 Mass. 65, 71 & n. 4, 521 N.E.2d 381 (1988);
Commonwealth v. Spano, 414 Mass. 178, 185, 605 N.E.2d 1241 (1993);
Commonwealth v. Peguero, 26 Mass.App.Ct. 912, 913‑914, 523
N.E.2d 476 (1988); Commonwealth v. Munera, 31 Mass.App.Ct.
380, 384, 578 N.E.2d 418 (1991), [44
Mass.App.Ct. 71] here there was
minimal corroboration. Slattery
confirmed only one bit of the informant's message, and that an innocent fact
apparent to the most uninformed passerby:
a small group of black youths had congregated near the tennis courts in
a public park at day's end.
Although
Slattery did see a group of Hispanic youths, they were not, as predicted, near
the black youths or in a position to engage them physically but rather were
"quite a distance away." He
discerned no interaction between the two groups, much less a recent, ongoing,
or threatened fight, or even apparent tension.
Neither Slattery nor any of the police officers espied a gun or other
weapon in the possession of the black youths.
Thus, the only significant details of the tip‑‑the
observation of a gun and the apprehended imminence of a melee‑‑proved
unreliable. Nor did Slattery view any
strange, furtive, or suspicious behavior on the youths' part that could infuse
otherwise innocent activity with incriminating aspect in the discerning eye of
an experienced police officer. Contrast Commonwealth v. Cast, 407 Mass. at 900,
556 N.E.2d 69. (FN11)
In
short, even combined with Slattery's observations at the [44 Mass.App.Ct. 72]
scene, the tip failed to constitute an adequate basis for reasonable suspicion
that the group of black youths by the tennis courts, or any one of them, had
committed, was committing, or was about to commit a crime. The fact that as police officers approached
the group started walking quickly away did not elevate the police officers'
inchoate suspicion to the level of reasonableness justifying a stop and frisk,
even though a firearm was reportedly involved.
See Commonwealth v. Bacon, 381
Mass. 642, 645‑646, 411 N.E.2d 772 (1980) (defendant's concealing his
face from police did not create reasonable suspicion); Commonwealth v. Thibeau,
384 Mass. 762, 763‑764, 429 N.E.2d 1009 (1981) (defendant on bicycle
making sudden turn after noticing marked police cruiser did not constitute
basis for reasonable suspicion); Commonwealth v. Mercado, 422 Mass. 367,
371, 663 N.E.2d 243 (1996) ("Neither evasive behavior, proximity to a
crime scene, nor matching a general description is alone sufficient to support
the reasonable suspicion necessary to justify a stop and frisk").
[11]
Only if other factors are present in addition to arguably evasive behavior,
which "in combination may allow the police to narrow the range of suspects
to particular individuals," may attempts to avoid contact with the police
be considered in the reasonable suspicion calculation. Commonwealth v. Mercado, supra,
and cases cited. See Commonwealth v. Harkess, 35 Mass.App.Ct. 626, 632, 624 N.E.2d 581
(1993). Here, there were no such
additional factors. Except for their
dispersal at the approach of police officers, nothing about the location,
appearance, or conduct of the group of black youths gave rise to reasonable
suspicion. The report from an informant
of questionable reliability that one of the group of black youths had a gun did
not serve to "narrow the range of suspects" to any of the group, much
less to Grinkley himself.
More
to the point, unlike the "other factors" which the cases just cited
allow to be combined for "reasonable suspicion" purposes with
apparent efforts to avoid contact with the police, the report of a gun was not
an action or condition actually observed by or known to the police. It was not another "fact," Contrast Commonwealth v. Mercado, 422 Mass. at
371, 663 N.E.2d 243, or even a justifiable inference from observed facts, but
rather little more than a working hypothesis.
Nothing in the situation or in police experience (at least as testified
to) provided a reasonable basis [44
Mass.App.Ct. 73] for the police to
induce the likely existence of a gun at such a scene, or to elevate the
tipster's reported but unconfirmed observation of a gun to the status of a suspicious
circumstance. To hold otherwise would
essentially eliminate the necessity of police corroboration of conclusory
reports about guns from tipsters of dubious reliability. It would effectively make the unconfirmed
rumor of a gun a self‑verifying fact justifying the stop and frisk for
the suspected gun.
The
cases involving police investigation of reports of a gun or other weapon do not
countenance such a conflation: they
rather stress the necessity of actual police knowledge and observations, particularly
in conjunction with a particular individual's suspicious behavior, in
substantiating a tip of less‑than‑solid veracity. See
Commonwealth v. Anderson, 366 Mass. at 400, 318 N.E.2d 834;
Commonwealth v. Couture, 407 Mass. at 180 & n. 2, 183, 552 N.E.2d
538 (even actual police knowledge that a specific individual is carrying a gun
does not in and of itself create "probable cause to believe that the
[individual] was or had been engaged in any criminal activity....' [S]ome objective manifestation' " is
necessary); Commonwealth v. Fraser, 410 Mass. at 545‑546,
573 N.E.2d 979; Commonwealth v. Cheek, 413 Mass. at 496,
597 N.E.2d 1029 ("no suspicious activity of the defendant [was] observed
by the police"); Commonwealth v. Willis, 415 Mass. 814,
815‑816, 819, 616 N.E.2d 62 (1993); Commonwealth v. Stoute, 422 Mass. at 783‑784,
790‑791, 665 N.E.2d 93; Commonwealth v. Alvarado, 423 Mass. at
269‑273, 667 N.E.2d 856; Commonwealth v. Johnson, 36 Mass.App.Ct.
at 337, 631 N.E.2d 71 (stressing that the situation "objectively [gave]
rise to public safety concerns"); Commonwealth v. Berment, 39 Mass.App.Ct.
522, 523, 527, 529, 657 N.E.2d 1295 (1995).
Cf. Commonwealth v. Vazquez,
426 Mass. at 101‑102, 686 N.E.2d 993 (reliable identification of defendant
by multiple bystander eyewitnesses as the man who had just committed an armed
assault on another justified a stop and frisk of defendant as he stood next to
an automobile on the passenger's side).
[12]
Upholding the validity of a stop and frisk in the instant circumstances would
dilute the requirement of using "objective criteria" in determining
reasonable suspicion, to the point of increasing "the risk of arbitrary
action and abusive practices by police," Commonwealth v. Lyons, 409 Mass. at 22, 564 N.E.2d 390, and
"encourag[ing] unduly intrusive police practices" akin to broad
"sweeps" in search of ambiguously identified suspects engaged in no
suspicious, much less criminal, activities. Commonwealth v. Cheek, 413 Mass. at 496‑497,
597 N.E.2d 1029. Cf. Commonwealth v. Phillips, 413 Mass. 50,
52‑53, 55‑56, 595 N.E.2d 310 (1992)[44 Mass.App.Ct. 74] (stop and search of black youths in high
crime area on suspicion of gang involvement invalidated).
It
is clear that the police stopped Grinkley and his companions, for
constitutional purposes‑‑i.e., effected their "seizure"‑‑when
the youths submitted to the several police officers' show of authority in
advancing on them, shouting and waving at them to stop and return as they
walked toward the woods. The youths
reacted by doing precisely what the officers had demanded, in a situation in
which we are confident no reasonable person would have felt free to leave
without responding to the police commands.
See Terry v. Ohio, 392 U.S. at
19 n. 16, 88 S.Ct. at 1879 n. 16; United States v. Mendenhall, 446 U.S.
544, 553‑554, 100 S.Ct. 1870, 1876‑1877, 64 L.Ed.2d 497 (1980);
Commonwealth v. Thibeau, 384 Mass. at 763‑764, 429 N.E.2d
1009;
Commonwealth v. Stoute, 422 Mass. at 788‑789, 665 N.E.2d 93;
Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 560, 540 N.E.2d 1335
(1989);
Commonwealth v. Berment, 39 Mass.App.Ct. at 525‑526, 657
N.E.2d 1295. Contrast Commonwealth v. Thinh Van Cao, 419
Mass. 383, 387‑388, 644 N.E.2d 1294 (1995) (police officer approached
group in parking lot and asked them for their identities without ordering them
to do anything or indicating that they could not terminate the encounter);
Commonwealth v. Dowdy, 36 Mass.App.Ct. 495, 496, 633 N.E.2d 419
(1994) (police officer investigating report of shots casually approached
defendant who was walking out of a schoolyard and asked "What's up? Did you hear any shots?"). (FN12)
[13]
Prior to that police show of authority in pursuit of the youths, Slattery and
his police colleagues had no reasonable suspicion, based upon specific and
articulable facts, to stop Grinkley for any past, ongoing, or threatened
crime. Slattery's post‑stop
recognition of Grinkley and one of his companions as individuals he had
previously arrested for weapons crimes, his awareness that Grinkley was using
an alias, and his failure to find any gun in the woods‑‑observations
that would have constituted specific and articulable facts weighing in favor of
a finding of reasonable suspicion had they preceded the stop, see Commonwealth v. Silva, 366 Mass. at
406, 318 N.E.2d 895; Commonwealth v. Crowley, 29 Mass.App.Ct.
1, 4, 556 N.E.2d 1043 (1990); Commonwealth v. Harkess, 35 Mass.App.Ct.
at 632, 624 N.E.2d 581‑‑cannot retroactively justify a stop [44 Mass.App.Ct. 75] effected on insufficient facts and
lacking reasonable suspicion. See Commonwealth v. Thibeau, 384 Mass. at
764, 429 N.E.2d 1009; Commonwealth v. Wren, 391 Mass. 705, 708
n. 2, 463 N.E.2d 344 (1984); Commonwealth v. O'Laughlin, 25
Mass.App.Ct. 998, 999‑1000, 522 N.E.2d 10 (1988).
Because
the tip and subsequent police corroboration did not establish reasonable
suspicion to stop Grinkley, his motion to suppress the fruits of the subsequent
frisk should have been allowed. Had it
been allowed, the Commonwealth's evidence against Grinkley on the drug charges
would have been insufficient to support conviction, and his motion for required
findings of not guilty would have succeeded.
He is now entitled to the entry of such findings. See
Commonwealth v. Thibeau, 384 Mass. at 765, 429 N.E.2d 1009.
Judgments reversed.
Verdicts set aside.
Judgments for the defendant.
(FN1.) Slattery did not specify the number of
officers involved in the investigation or the number of black youths during the
suppression hearing. At trial he testified
there were three officers besides himself and seven or eight youths.
(FN2.) Slattery's testimony is incomplete and
unclear regarding the precise manner in which the police caught up to the
youths. The Commonwealth's brief states
that the officers had, by their conduct, "ordered [the youths] back to
where the officers were standing."
(FN3.) The other officers had already patted
or were in the process of patting down the other youths at this moment. No gun had up to that time been discovered on
any of the youths. Grinkley was the last
or one of the last to be patted down. No
weapon of any kind was uncovered by the frisks.
(FN4.) The prescription bottles contained
twenty‑eight "dollar bags" of crack cocaine.
(FN5.) Although the findings of the judge who
heard the motion to suppress are binding in the absence of clear error‑‑a
very limited standard of review‑‑and the judge's conclusions of law
based thereon are entitled to respect, because the issue presented is one of
constitutional dimensions those findings (at least those not based upon
credibility assessments) and rulings of law are open for reexamination by an
appellate tribunal. See Commonwealth v. Yesilciman, 406 Mass.
736, 743, 550 N.E.2d 378 (1990); Commonwealth v. Thinh Van Cao, 419 Mass.
383, 384, 644 N.E.2d 1294 (1995).
(FN6.) The judge had summarily denied the
motion to suppress on the date of the hearing without making findings, oral or
written. At the request of this court,
written findings were prepared by the motion judge. The pertinent erroneous findings behind the
judge's ruling were as follows: "As
he [Slattery] approached he saw a few other officers approach the group of
black youths who then ran toward the woods.
He followed them and recognized the defendant and another youth as
individuals previously arrested by him and convicted of assault and battery
with a dangerous weapon and armed robbery with a handgun, respectively. When they stopped running, he heard one of
the officers ask the defendant his name, to which he responded with a name
which Sgt. Slattery knew to be false. He
[Slattery] challenged the defendant's response but the defendant refused to
admit his true name. At this point the other
officers had pat frisked the other youths and had not found any gun.... At that point he was reasonably justified in
fearing for his safety ... [and in] deci[ding] to pat frisk the defendant for
weapons out of concern for his safety."
Aside from the minor embellishments that went beyond Slattery's
testimony (he conceded that the youths did not "run" away and never
mentioned that he feared for his safety), these findings most significantly
overlooked the police show of authority that effected the stop, ignored the
fact that the frisks had already commenced when Slattery began interacting with
Grinkley, and misstated the sequence of events, the suspicious observations
having come only after the otherwise unjustified stop.
(FN7.) Because we conclude that the stop and
threshold inquiry did not satisfy those standards, we do not reach the second
part of the two‑part analysis in "stop and frisk"
situations: whether the scope of the
frisk, or the degree of its intrusiveness, was reasonable in the
circumstances. See Commonwealth v. Silva, 366 Mass. at 405, 318 N.E.2d 895;
Commonwealth v. Berment, 39 Mass.App.Ct. 522, 526 n. 6, 657 N.E.2d
1295 (1995).
(FN8.) Because the standard for investigatory
stops is reasonable suspicion rather than probable cause, "a less rigorous
showing in each of these areas is permissible." Commonwealth v. Lyons, supra.
(FN9.) The informant here did not claim to be
and in all probability was not "a neighborhood person," since the
street given as her address does not exist near Mary Dennison Field, or,
indeed, anywhere in Framingham. See Commonwealth v. Boston & Me. Transp. Co., 282 Mass. 345, 350, 185 N.E.
40 (1933); Commonwealth v. Sargent, 330 Mass. 690,
693, 117 N.E.2d 154 (1953); Nantucket v. Beinecke, 379 Mass. 345,
352, 398 N.E.2d 458 (1979); Matter of McInerney, 389 Mass. 528, 536,
451 N.E.2d 401 (1983); Proposed
Mass.R.Evid. 201(b); Hughes, Evidence §§
71‑72, 74 (1961 & Supp.1993) (judicial notice can be taken by trial
and appellate courts of facts of common knowledge and facts capable of accurate
and ready determination, including geographical facts such as street locations,
so long as the noticed fact is not an essential element of proof of the crime
charged, Commonwealth v. Green, 408
Mass. 48, 50, 556 N.E.2d 387 [1990] ).
(FN10.)
Even under the cases just cited, the possession of a firearm by a minor would
be presumptively illegal as unlicensed and therefore ground for police
investigation. See G.L. c. 140, §
131; G.L. c. 269, § 10. The record does not, however, provide any
information regarding the ages of Grinkley and the other black
"youths" or suggesting that the prior convictions of Grinkley and one
of the other "youths" were as juvenile rather than as adult
offenders. We have previously
encountered the imprecise usage of the term "youth" in criminal
cases.
Commonwealth v. Burnett, 36 Mass.App.Ct. 1, 5, 626 N.E.2d 900, S.C., 418 Mass. 769, 642 N.E.2d 294
(1994) (involving a twenty‑six year old defendant).
(FN11.) Contrast also Commonwealth v. Cavanaugh, 366 Mass. 277, 280, 281, 317 N.E.2d 480
(1974) (upon seeing police, defendant driving the wrong way down a one‑way
street accelerated his vehicle, leading to a high‑speed chase through
city streets); Commonwealth v. Anderson, 366 Mass. at
395‑396, 400, 318 N.E.2d 834 (suspect looked back over his shoulder at
following uniformed police officers as he walked briskly away, then made a
gesture as if attempting to get rid of a bag he was holding);
Commonwealth v. Fraser, 410 Mass. 541, 542, 545, 573 N.E.2d 979
(1991) (as police approached a group of young men pursuant to a tip about a man
carrying a gun in a high crime area, they saw defendant bend down behind a
truck as though picking something up and subsequently keeping his hands in his
pockets);
Commonwealth v. Willis, 415 Mass. 814, 816, 616 N.E.2d 62 (1993)
(man who police teletype said would be carrying a striped pillowcase and a
loaded handgun confronted approaching police with the striped pillowcase in one
hand and the other hand in his right pocket); Commonwealth v. Va Meng Joe,
425 Mass. at 105‑106, 682 N.E.2d 586, and cases cited (man who tipster
said would be coming to doughnut shop to sell drugs to tipster drove slowly by
shop as if meeting someone); Commonwealth v. Johnson, 36 Mass.App.Ct.
at 336‑337, 631 N.E.2d 71 (woman who neighborhood resident told police
was carrying a gun acted in angry, belligerent, and out‑of‑control
manner as police officer approached).
Contrast also cases in which a tipster describes a particular individual
as possessed of a gun and the police observe a person matching that description
in the very vicinity where the tipster had said the individual would be. E.g.
United States v. McClinnhan, 660 F.2d 500; United States v. Clipper,
973 F.2d 944; United States v. Gibson, 64 F.3d 617.
(FN12.) The motion judge did not expressly
determine when Grinkley was stopped by the police. As noted, the Commonwealth concedes that the
youths had stopped and returned in response to the police "order[ing] them
back to where the officers were standing."