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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. Laureno, 411
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
William J. Meade, Asst. Dist. Atty., for the Com.
Matthew T. Gilbertson,
LIACOS, C.J.,
and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
LYNCH, Justice.
The
defendant was charged with possession of a Class B controlled substance in
violation of G.L. c. 94C, § 34 (1990 ed.). The District Court judge allowed the
defendant's motion to suppress the evidence, relying on Commonwealth[411
At the
motion hearing the judge heard the following testimony. The defendant was in a bar, conversing with
someone. Two detectives, in plain clothes,
entered the bar and stood side by side at the door. One made a visual sweep of the room, the
other glanced at the defendant. The
defendant, who was approximately thirty feet from the detectives, 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.
[1] The
defendant, relying on art. 14 of the Massachusetts Declaration of Rights,
argues that the detectives "pursued" him into the men's room,
displayed their authority, and unconstitutionally seized him and the cocaine.
He
contends that this case is controlled by
Commonwealth v. Thibeau, supra. (FN1)
Even if we assume that Thibeau creates a more rigorous art. 14 standard than
now exists under the Fourth Amendment to the United States Constitution, the
defendant's cause is not advanced. There
we held that the police pursuit, with siren blaring, of a bicyclist required
some articulable facts leading to reasonable
suspicion prior to the start of pursuit because in those circumstances, the
stop (and seizure) began when the pursuit commenced. The claim of [411 Mass. 710] police
"pursuit" by the defendant, however, is not a talismanic formula for
converting all police investigation into a stop and seizure. In Thibeau we confronted the question whether the
defendant's flight from police pursuit could be considered as suspicious
conduct justifying a threshold inquiry.
We held that flight could not be so considered because "[p]ursuit that appears designed to effect a stop is no less
intrusive than the stop itself." Id. at 764, 429 N.E.2d 1009. In this case there was no evidence of
pursuit in the sense that the term was used in Thibeau. The detectives merely followed the defendant
into a public rest room where they both had a right to be. There was no attempt to restrain the
defendant from leaving the bar nor was there any manifestation of authority by
the police that the defendant could reasonably interpret as restraining his
right to go into the men's room.
Not every
encounter between law enforcement officers and citizens constitutes a stop or
seizure. We have noted that "[a]n
objective standard is used to determine when a seizure has occurred: 'a person has been "seized" ... if,
in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.' "
Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985),
quoting
United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The evidence in this case merely shows that
the defendant, prior to the detectives' speaking with him or displaying any
indicia of authority, walked to the men's room and the detectives
followed. Obviously detectives, even on
active duty, are permitted to use a public men's room.
[2] No
evidence was presented from which the judge could have found there was a show
of authority by the police prior to their entry in the men's room. Once in the public men's room, the detectives
saw in plain view a bag of white powder within arm's length of the defendant,
who was standing by, but not using, the urinal.
At that point the detectives had probable cause to arrest the defendant.
Order suppressing evidence reversed.
(FN1.) We do not reach the question whether
the recent Supreme Court decision in
California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), would require a
different result under the Fourth Amendment to the United States Constitution,
or whether art. 14 would afford the defendant greater protection in this
regard.