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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. Harkess, 35 Mass.App.Ct.
626 (1993)
Appeals Court of Massachusetts,
No. 93‑P‑489.
Argued
Decided
Lois J. Martin,
Katherine E. McMahon, Asst. Dist. Atty., for Com.
Before FINE, KAPLAN and GILLERMAN,
JJ.
KAPLAN, Justice.
Upon a six
member jury trial in District Court, the defendant was convicted of the crimes
of unlawfully carrying a firearm (G.L. c. 269, § 10 [a ] ) and unlawful possession of
ammunition (G.L. c. 269, § 10[h ] ). He appeals and claims
that the judge erred in failing to suppress the physical evidence and also a
statement made to the police.
Gerald
Bailey, a
[35 Mass.App.Ct.
627] On
As eye
contact was made, the two men turned and ran through the doorway. The officers left the cruiser and ran in
pursuit. Bailey followed the defendant
up the stairwell of No. 55. The other man had run through No. 55 into
another courtyard, with Green following.
The defendant was fifteen feet ahead of Bailey up the three or four
flights of stairs, but Bailey for a moment lost sight of the defendant as the
defendant reached the top of the stairwell and went out to the roof. As Bailey emerged to the roof with drawn gun,
he went to his right. Hearing a noise,
he turned. The defendant approached from
the left rear of the roof with his hands raised and said, "I give
up." Fearing for his own safety‑‑considering
the hour, the size of the defendant, the flat, open roof‑‑Bailey
ordered the defendant down and handcuffed him.
Officer Green, who had lost his man, made his way to the roof (perhaps
Bailey had called down to him). Now
Bailey looked about and found on the "penthouse" (an enclosure about
six feet high at the head of the stairwell) a nine millimeter handgun, with a
live round in the chamber and sixteen in the magazine.
Green
conducted the defendant down the stairs, Bailey following with the captured gun
in hand. Either on the roof after the
gun was found, or on the street, the defendant was told he was under arrest for
firearms violation. As the defendant[35 Mass.App.Ct.
628]
was being put into the backseat of the cruiser, he said, "The gun
isn't mine, but I know whose it is."
No questions had been put to the defendant. He was taken to the station for booking and
was then given Miranda warnings.
[1] 1. Refusal to suppress gun and ammunition. The defendant argues that the police took
these things unlawfully, in consequence of a violation of the Fourth Amendment
(and Fourteenth) to the United States Constitution.
The
defendant questions the legality of Officer Bailey's pursuit of him. The Supreme Court has spoken to the
point. In California v. Hodari D., 499 U.S. 621,
111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (7 to 2
decision), two police officers on patrol in an unmarked cruiser, dressed in
street clothes but wearing jackets with "Police" marked front and
back, saw four or five youths huddled around a small parked red car. It was a high‑crime area in the city of
Oakland. When the youths, including Hodari, saw the officers' cruiser approaching, they fled,
and the red car took off. One of the
officers chased Hodari, got ahead of him on a
parallel street, then turned back. Hodari, looking behind him as he ran, did not turn and see
the officer until the officer was nearly upon him. At that point he tossed away what appeared to
be a small rock. The officer tackled Hodari and handcuffed him.
The rock was found to be crack cocaine.
In the
juvenile proceedings, Hodari could argue for
suppression of the cocaine as evidence on the basis of the familiar cases of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct.
1870, 64 L.Ed.2d 497 (1980). These
combined in the doctrine that a person was "seized" within the
meaning of the Fourth Amendment when the police acted in such a way that the
person would believe, in reason, that he was not free to leave; the seizure could then be justified if it was
shown that the police acted upon a reasonable, articulable
suspicion that the person was engaged or about to engage in criminal activity. In Hodari, California conceded that such suspicion was not
shown. The Supreme Court departed from Terry‑ Mendenhall and held,
relying on a common law definition of arrest, that Fourth Amendment seizure
means either the application of physical force to the person or submission [35 Mass.App.Ct.
629] of the person to an assertion
of authority; and when the police have
not encompassed a seizure so defined, they need not justify by showing
suspicion of crime. So suppression of
the cocaine could not be upheld.
Although
Justice Scalia, for the majority, did not persuade
Justices Stevens and Marshall, the Hodari decision of course fixes the meaning of the
Fourth Amendment for us. That decision
could control the case at bar: just as Hodari was considered not to have been seized at the moment
he saw the officer and cast away the cocaine, so Harkess
had not been seized when, knowing the officer was in near pursuit, he disposed
of the gun on the penthouse. Any issue
of
reasonable suspicion falls
away. This may be taken to conclude the
present appeal in favor of the Commonwealth.
The
question suggests itself, however, whether art. 14 of our Declaration of Rights
grants greater liberty to the individual than the Fourth Amendment as construed
in Hodari. For present purposes, this is to ask the
question whether art. 14 should be held to constitutionalize
for the Commonwealth the Terry‑
Mendenhall doctrine. The highest
courts of a few States have in fact already decided by reference to their
respective State constitutions to hew to these older precedents. See
State v. Oquendo, 223 Conn. 635, 613 A.2d 1300
(1992);
State v. Quino, 74 Haw. 161, 840 P.2d 358
(1992);
Matter of Welfare of E.D.J., 502 N.W.2d
779 (Minn.1993).
Faced with
this temerarious inquiry, our courts have pretty consistently applied the Terry‑ Mendenhall test, expressly
or impliedly, while dealing only scantily with Hodari, and disclaiming any intention to
answer the art. 14 issue. (FN1)
We develop
these points. To go back to Justice Scalia's opinion in Hodari, he emphasized that California had conceded in
effect that admission in evidence of the cocaine could not be justified under Terry‑ Mendenhall. Accepting [35 Mass.App.Ct. 630] California's concession, Justice Scalia
doubted that the concession was necessary.
He wrote (499 U.S. at 623 n. 1, 111 S.Ct. at
1549 n. 1): "That it would be
unreasonable to stop, for brief inquiry, young men who scatter in panic upon
the mere sighting of the police is not self‑evident, and arguably contradicts
proverbial common sense. See Proverbs
28:1 ('The wicked flee when no man pursueth'). We do not decide that point here, but rely
entirely upon the State's concession."
In the
present case, the Commonwealth, besides pressing Hodari, makes no concession and contends
that the police acted on reasonable suspicion, based, the Commonwealth would
say, on more than mere flight.
We pass to
our precedents about reasonable suspicion justifying a Terry‑type stop in "flight" cases, starting at the
beginning. In Commonwealth v. Battle, 365 Mass. 472, 313 N.E.2d 554 (1974), the
court, applying the conventional pre‑Hodari standard, said
broadly: "On seeing two persons run
into an apartment building in apparent response to an approaching police
vehicle, the police had the right‑‑if not the duty‑‑to
conduct further visual investigation while the two persons remained in public
view. Such police conduct is not a
search or seizure, however expansively one wishes to interpret those terms, and
therefore a lack of probable cause to arrest or even ground to conduct a 'stop
and frisk' is irrelevant. The
requirements of the Fourth Amendment ... enter into the picture at a later
point in this case, when the arrest was actually made." Id.
at 475, 313 N.E.2d 554 (footnote omitted).
This seems almost to anticipate the holding in Hodari.
In Commonwealth v. Thibeau, 384 Mass. 762, 429 N.E.2d 1009 (1981),
however, the court looked for and failed to find reasonable suspicion where it
was the police who started a chase upon no more than a hunch (not to be counted
was an individual's attempt to elude the police after they initiated
pursuit). The necessary suspicion
existed in Commonwealth v. Wren, 391
Mass. 705, 463 N.E.2d 344 (1984): an
individual's attempt to avoid contact or observation by the police was not
itself enough to base reasonable suspicion but could be considered with other
factors, here including an appearance of "casing" a location or
awaiting a rendezvous. Commonwealth v. [35 Mass.App.Ct. 631] Borges, 395 Mass. 788, 482 N.E.2d 314 (1985), suggests that a
tip from an unidentified informant might suffice to ground suspicion and thus
justify a prompt stop (but here the police later exceeded the investigatory
scope permitted by Terry ). So also there was suspicion enough in Commonwealth v. Sanchez, 403 Mass.
640, 531 N.E.2d 1256 (1988), where a person, alighting at an airport and
questioned by the police about carrying narcotics, consented to inspection but
then broke and ran.
Commonwealth v. Fraser, 410 Mass. 541,
573 N.E.2d 979 (1991), was decided after Hodari, but applied
Mendenhall. The court said the
police officer did not "seize" an individual in the sense of sealing
his freedom of movement when he identified himself as a police officer and
asked him to take his hands out of his pockets.
The court cited Hodari as a "cf." and said the defendant had
waived an art. 14 claim by making an inadequate appellate argument. Id.
at 543 n. 3, 573 N.E.2d 979. Commonwealth v. Laureano,
411 Mass. 708, 584 N.E.2d 1132 (1992), can take its place as another example of
such nonseizure, with the court putting to one side
both Hodari
and art. 14. In our own court, there is
in Commonwealth v. Pena, 31 Mass.App.Ct. 201, 575 N.E.2d 774 (1991), a claim that
counsel did not provide effective assistance because he failed to move to
suppress physical evidence. The court
sought to distinguish Hodari
and Battle on their facts and
concluded that the case must be remanded for further evidence on whether the
police had reasonable suspicion. The
opinion stated that it took no position whether, on facts like Hodari, art.
14 provides more protection of the citizen than the Fourteenth Amendment.
Commonwealth v. Marrero, 33 Mass.App.Ct.
440, 600 N.E.2d 1016 (1992), finds reasonable suspicion on the basis of the
individual's self‑activated flight together with other features including
a prior break‑in at the locus and some signs of a current one. Article 14 contentions were pretermitted. (FN2)
[2] Set
against this roundup of the decisions, the facts at bar establish reasonable
suspicion, as the motion judge found. [35 Mass.App.Ct.
632] Apart from the rather equivocal
facts that this was a high‑crime area and the time 3:00 A.M., the
defendant had been pointed out to Officer Bailey, Bailey had information
connecting the defendant to a drug and gun group operating at Mission Hill, and
the defendant fled on his own propulsion, not in reaction to an incursion by
the police. Thus the case against
suppression of gun and ammunition is proved on conventional grounds, and we
leave art. 14 to another day. The
question of art. 14 is reserved for a case of a stop where reasonable suspicion
according to Terry is lacking.
[3] 2. Refusal to suppress defendant's statement. It is regrettable that the defendant was not
given Miranda warnings on the spot at the time of his arrest, but it does not
follow that his statement should be suppressed.
The question is whether the statement was the product of custodial interrogation,
meaning thereby "express questioning or its functional equivalent."
Rhode Island v. Innis, 446 U.S. 291, 300‑301,
100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). True, the defendant could have seen the gun
in Officer Bailey's hand, but in the circumstances there is little basis for
equating this with an imagined accusatory police question, "How do you
explain this?" The gun was not thrust on the defendant, and
he would not have felt it as an implicit demand for an explanation. The gun was simply a piece of evidence
collected at the scene and was handled as such.
For a contrasting situation where the display of drugs to a suspect at
the scene was held the equivalent of custodial interrogation, see Commonwealth v. Rubio, 27 Mass.App.Ct. 506, 512‑513, 540 N.E.2d 189 (1989).
Judgments affirmed.
(FN1.) We can claim to be relieved of any duty
to consider art. 14 because the defendant herein effectively did not ask the
benefit of it either at trial or on this appeal. So also there is doubt whether, as the
intermediate appellate court, we would do better to await the definitive
resolution of the constitutional issue by the Supreme Judicial Court, than to
attempt to decide it ourselves.
(FN2.) Hodari is
also referred to briefly in Commonwealth v. Willis, 415 Mass. 814,
817 n. 4, 616 N.E.2d 62 (1993), and Commonwealth v. Houle,
35 Mass.App.Ct. 474, 476, 622 N.E.2d 638 (1993).