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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. Hart, 45 Mass.App.Ct.
81 (1998)
Appeals Court of Massachusetts,
Hampshire.
No. 97‑P‑1103.
Argued
Decided
Judith Ellen Pietras,
Assistant District Attorney, for Commonwealth.
Laurie M. Halbert,
Ellen M. Lacroix,
Before WARNER, C.J., and PERRETTA and BECK, JJ
PERRETTA, Justice.
After a
District Court judge allowed the defendants' motions to suppress on the basis
that each had been "seized" without legal justification, the
Commonwealth sought and obtained leave to appeal pursuant to Mass.R.Crim.P. 15(b)(2), 378
1. The facts. On the night of
Based upon
his familiarity with the area and his observations of the two men, Fappiano decided to speak with them. He got out of his car and walked toward
In "midconversation," Guba
turned away from Fappiano, opened the door to the
building, and entered the foyer. Fappiano described the door as wooden and unsecured, with a
large plexiglass window in the middle through which
he had an unobstructed view into the foyer.
As Fappiano stood outside, he could see Guba
who, as he entered the building, immediately turned to the mailboxes located in
the foyer. Fappiano
could also see that those mailboxes "were partially opened and unsecure." He
saw Guba open one of the mailboxes, reach into his
left pocket, withdraw a clenched fist, and place something in the opened
mailbox.
Upon
making these observations, Fappiano entered the foyer [45 Mass.App.Ct.
83] and asked Guba
what he was doing. Guba
appeared to be in a state of surprise about Fappiano's
presence and did not respond to his inquiry.
When Guba failed to answer, Fappiano went to the mailbox into which he had seen Guba discard something.
Inside he saw three plastic baggies containing an off‑white
substance which, based upon his training and experience, he believed to be
crack cocaine. At this point, Fappiano decided to "detain" Guba,
who was now "rocking side to side," being "uncooperative,"
and resisting Fappiano's attempts to arrest him.
Because of
Guba's resistance, Fappiano
decided to leave the three baggies in the mailbox, call for assistance, and
take Guba outside.
Throughout the events in the foyer, Hart had remained standing on the
steps outside the building. (FN3) Fappiano testified
that as he, now outside the building, was attempting "to secure Mr. Guba properly," "Mr. Hart was appearing
nervous" and "was shifting from side to side." Because of Hart's actions and for reasons of
his personal safety, Fappiano asked Hart, more than
once, to place his hands on the back of his head. Instead of responding to these requests,
Hart, with his hands in front of him, initially turned away from Fappiano and, facing the stair railing, turned toward the
adjacent parking lot. He then did as Fappiano requested.
When the
officers responding to Fappiano's call for assistance
arrived, Fappiano searched the area where Hart had
been standing and to which he had turned after hearing the request to place his
hands on his head. In the area below
where he had been standing, approximately five to eight feet to the left, Fappiano found "one package consist[ent]" with the packages of cocaine retrieved from the
mailbox in the foyer.
On this
evidence, the judge found and concluded that Hart, because he was of African‑American
descent, did not feel free to walk away from Fappiano
and, therefore, had been seized within the constitutional sense from the moment
Fappiano requested to speak with him. The judge also found that Guba,
notwithstanding a Caucasian's "history of respect for an untrampled assertion of rights," had been
"seized" when Fappiano followed him into
the foyer of the building situated at 8 Hawley Street.
2. Discussion. We treat the events in the sequence of their
occurrenceand
[45 Mass.App.Ct. 84] look first to Fappiano's initial
contact with Hart and Guba outside the entrance to 8
Hawley Street. Citing various publications
concerning the treatment of African‑Americans in this country, (FN4) the
judge stated that "[h]istorically, ... blacks
who have walked, run or raced away from inquisitive police officers have ended
up beaten and battered and sometimes dead." Without reference to any of the evidence of
the circumstances surrounding the encounter between Fappiano
and Hart, the trial judge relied upon the data reported in the publications
that he had read and concluded that Hart had been illegally seized because a
"reasonable black American would not feel free to leave when stopped and
questioned by police."
[1][2]
"[N]ot every encounter between a law enforcement
official and a member of the public constitutes an intrusion of constitutional
dimensions requiring justification...." Commonwealth v. Stoute,
422 Mass. 782, 789, 665 N.E.2d 93 (1996).
In our view, the judge created and applied an erroneous presumption of
law rather than resolving the decisive issue, that is, whether 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."
Commonwealth v. Fraser, 410 Mass. 541, 544, 573 N.E.2d 979 (1991).
[3][4] We
have acknowledged in the past that the "average citizen questioned by the
police does not necessarily feel free to walk away without responding in some
manner." Commonwealth v. Pimentel, 27 Mass.App.Ct. 557, 560, 540 N.E.2d 1335 (1989). However, we have never axiomatically
concluded that such an inhibition on the part of the citizen results in a
conclusion of law that he has been seized.
Rather, we have looked to the "circumstances beyond the show of
governmental authority inherent in the mere presence of the police."
Ibid. The undisputed evidence
of the circumstances in the instant case as related by Fappiano,
whose actions were found by the judge to be "beyond reproach," see
note 2, supra, shows that Fappiano, who acted alone, who was not in uniform, and who
was travelling in an unmarked police vehicle, was at
all times courteous, that he never displayed a weapon, that he never used
language or a tone of voice indicating that either Hart's or Guba's compliance [45
Mass.App.Ct. 85]
with his requests was mandatory, and that Guba walked
away from him in "midconversation" without
interference. On the undisputed evidence
of these circumstances, we conclude that Hart was not seized at the time of Fappiano's initial encounter with him.
[5] We
turn next to Guba who, relying upon Commonwealth v. Thibeau,
384 Mass. 762, 764, 429 N.E.2d 1009 (1981) ("[p]ursuit
that appears designed to effect a stop is no less intrusive than a stop
itself"), claims that Fappiano pursued him into
the foyer without any basis for doing so.
The evidence showed that Fappiano did not go
into the common area of the foyer until
after Guba had refused to make eye contact with
him outside of the building where he had been shifting from side to side and
appearing nervous, walked away from him and Hart and into the foyer of the building
in which, he had stated, Hart, but not he, resided, and placed something small
enough to be concealed within his fist into an unlocked and open mailbox. It was at that point that Fappiano
entered the foyer, looked into the mailbox, and decided to arrest Guba.
[6] There
is nothing in the evidence which shows "pursuit in the sense that the term
was used in Thibeau."
Commonwealth v. Laureano, 411 Mass. 708,
710, 584 N.E.2d 1132 (1992). In Laureano, two
detectives, in plain clothes, went into a bar.
One of them glanced at the defendant, who was about thirty feet away and
engaged in conversation. "The
defendant ... abruptly terminated his conversation and hastily moved toward the
men's room, ten feet away. The
detectives followed, arriving at the rest room less than three seconds after
the defendant. The detectives observed
the defendant near a urinal, but not using it.
One detective looked into the urinal, saw a small bag of white powder,
and retrieved it. The defendant spun
around and started to leave the rest room, whereupon he was placed under
arrest." Id. at 709, 584 N.E.2d 1132. On these facts, the court concluded that the
detectives, who had not made any prior display of authority that could have
been interpreted by the defendant as a restraint upon his right to walk into
the men's room, had not pursued the defendant, but rather had merely followed
him into a place in which they also had a right to be, where they then saw the
drugs in plain view. We reach the same
conclusion. (FN5)
[7] We
return to the issue of Hart's arrest.
When Fappiano [45 Mass.App.Ct. 86] brought Guba outside, Hart was still
standing on the stairs, appearing nervous and shifting from side to side. Because he became nervous for his safety, Fappiano ordered Hart to place his hands on his head. Hart choose not to heed that command and,
instead, turned away from Fappiano to face the stair
rail with his hands in front of him.
Because Fappiano could not see Hart's hands,
he made repeated demands that Hart place his hands on his head. Finally, Hart complied. When two other officers arrived at the scene, Guba was placed under arrest and Hart was brought to the
bottom of the stairs. Fappiano, using a flashlight, then searched the area
immediately below the stair railing to which Hart had turned when told to place
his hands on his head and found another package of drugs consistent with those
taken from the mailbox.
We think
that Fappiano acted reasonably in ordering Hart to
place his hands on his head while he, Fappiano,
secured Guba until other officers arrived at the
scene. See Commonwealth v. Wing Ng, 420 Mass. 236, 649 N.E.2d 157 (1995);
Commonwealth v. Calderon, 43 Mass.App.Ct.
228, 230‑231, 681 N.E.2d 1246 (1997).
Hart's response to Fappiano's reasonable command
was to jettison the drugs in his possession.
Once Hart did that, Fappiano, who had neither
prompted nor encouraged Hart in his actions, was free to retrieve the item
thrown into the lot adjacent to the stairs.
Order allowing motions to suppress reversed.
(FN1.)
Commonwealth v. Eric C. Guba.
(FN2.)
The detective was the only witness at the suppression hearing. The judge found and concluded that although
his "professionalism" was "beyond reproach," his actions
were, as matter of law, without legal justification.
(FN3.)
There is nothing in the evidence that suggests Fappiano
had directed Hart to remain on the stairs while he (Fappiano)
went into the foyer.
(FN4.)
Specifically, the judge cited Delgado, The Coming Race War? (New York University Press, 1996); Higginbotham, In the Matter of Color (Oxford
University Press, 1978); Higginbotham,
Shades of Freedom (Oxford University Press, 1996); and West, Race Matters (Vintage Books, 1994).
(FN5.)
The judge did not consider whether Hart had a reasonable expectation of privacy
in the mailbox. On the evidence and the
facts found by the trial judge, we conclude that he did not. See
Commonwealth v. Carter, 424 Mass. 409, 411‑412, 676 N.E.2d 841
(1997).