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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. Mercado, 422
Supreme Judicial Court of Massachusetts,
Argued
Decided
Christopher Hodgens,
Assistant District Attorney, for the Commonwealth.
Edward K. Boyer,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
ABRAMS, Justice.
The
defendant, Jose Mercado, stands indicted for murder in the first degree,
breaking and entering a building with intent to commit a felony, and illegal
possession of a firearm. After a
hearing, a Superior Court judge allowed Mercado's motion to suppress evidence
seized from him following a police officer's stop and frisk. The judge determined that the stop was not
justified by reasonable suspicion.
Pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass.
884 (1979), the [422
The facts,
as found by the judge, are as follows.
On
When he
arrived at the scene, Coakley saw another police
officer assisting a man who was bleeding profusely. The officer directed Coakley
to interview a woman standing on the sidewalk fifty to seventy yards to the
south. The woman told Coakley that she had heard shots fired and had seen two
white males running northeastward.
After
speaking to the woman, Coakley started walking
northerly. When he was about twenty‑five
to thirty feet from the woman, Coakley encountered a
man named Lemerise standing on the sidewalk with his
eight or nine year old son. Lemerise told Coakley that he had
observed some unusual activity in Kangaroo Crossing, a sporting attire and shoe
store located in a building set back less than one hundred feet from the
sidewalk on which they were standing. He
told Coakley that he had observed a shirtless Hispanic
or black male wearing olive green pants pushing people out of his way in an
apparent attempt to reach the cash register.
He had three or four fifty dollar bills in his hands and said that he
wanted to buy an article. The man
appeared very agitated.
Coakley looked toward the doorway of Kangaroo
Crossing. The judge found that "Coakley saw a Spanish male ... start to come outside from
the small vestibule. This man was later
identified as Luis Yambo.... Yambo stopped and
backed up into the vestibule. Officer Coakley also saw another Spanish male [Mercado], three or
four feet behind the first, make these same movements when he saw the
officer. Thereafter, they once again
stepped outside.
"[Mercado] was wearing plaid shorts with
a long 'Miami Hurricane' shirt extending over the top, and a baseball cap. He stepped out first, looking back at Yambo and then ahead at the officer. Yambo hesitated,
then started out, then stopped and started once again....
[422 Mass. 369] "Officer Coakley called out to the
two men, 'How you doing? What's up?',
and, on reaching them, asked their names and where they were coming from. Yambo replied that
they had been in the store. [Mercado]
said he did not speak English (in English).
"Coakley then proceeded to pat them down.... He patted down Yambo
first.... Then he patted down
[Mercado]. He felt an object. He lifted the shirt and in the waist band of
the shorts saw a firearm. It proved to
be a semi‑automatic 9 mm.
[handgun]."
[1][2] In
reviewing a ruling on a motion to suppress, our duty is to make an independent
determination of the correctness of the judge's application of constitutional
principles to the facts as found. Commonwealth v. Robbins, 407 Mass. 147,
151, 552 N.E.2d 77 (1990). In stop and
frisk cases our inquiry is two‑fold:
"first, whether the initiation of the investigation by the police
was permissible in the circumstances, and, second, whether the scope of the
search was justified by the circumstances." Commonwealth v. Moses, 408
Mass. 136, 140, 557 N.E.2d 14 (1990), quoting Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895
(1974). Accord Commonwealth v. Owens, 414 Mass. 595, 598‑599, 609 N.E.2d
1208 (1993).
[3][4] As
to the first inquiry, a police officer may stop an individual and conduct a
threshold inquiry if the officer reasonably suspects that such individual has
committed, is committing, or is about to commit a crime. Moses, supra at 140, 557
N.E.2d 14, quoting Commonwealth v. Wren,
391 Mass. 705, 707, 463 N.E.2d 344 (1984).
Accord Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987);
Silva, supra at 405, 318 N.E.2d 895. To qualify as "reasonable," the
officer's suspicion "must be based on specific, articulable
facts and reasonable inferences drawn therefrom."
Moses, supra, quoting Wren,
supra. Accord Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993);
Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). The standard is objective: "would the facts available to the
officer at the moment of the seizure or the search 'warrant a man of reasonable
caution in the belief' that the action taken was appropriate?"
Terry v. Ohio, 392 U.S. 1, 21‑22, 88 S.Ct.
1868, 1880, 20 L.Ed.2d 889 (1968).
[5][6] We
conclude that the information Officer Coakley
received from the police radio, together with Lemerise's
statement and Coakley's own observations, justified
the stop and frisk of Mercado. From the
radio bulletin, and his observation of the bleeding man, Coakley
knew that a shooting had recently occurred. [422 Mass. 370] From the radio bulletin
and Lemerise's statement, Coakley
could have reasonably believed that there were three suspects of Hispanic
descent, at least one of whom was in the Kangaroo Crossing store. These facts, coupled with Coakley's
observation of the behavior of the Hispanic men whom he saw leaving the store,
see supra at 244‑245, sustain Coakley's reasonable suspicion of those men. In these circumstances, we think that
"it would have been poor police work indeed" had Coakley
failed to initiate a threshold inquiry.
(FN1) Terry, supra, at 23, 88 S.Ct. at 1881.
Mercado
relies heavily on Commonwealth v. Cheek,
413 Mass. 492, 597 N.E.2d 1029 (1992).
We think that case distinguishable.
In Cheek, two police officers
received a police radio bulletin that a stabbing had taken place and that
"[f]or a suspect we have a black male with a black 3/4 length goose known as Angelo of the
Humboldt group." Id. at 493, 597 N.E.2d 1029. Some time later, approximately one‑half
mile from the scene of the stabbing, the officers saw a black male (the
defendant) wearing a dark‑colored three‑quarter length goose‑down
coat. The officers approached the defendant
and asked his name, but his response was unclear because his coat was zippered
up over his mouth. The officers
proceeded to frisk the defendant and discovered a .38 caliber handgun in his
coat pocket. Id.
We
rejected the Commonwealth's contention that reasonable suspicion arose from the
match of the coat to the radio description coupled with the defendant's
presence in the high crime area where the stabbing allegedly occurred. We observed that the description of the
suspect as a "black male with a black
3/4 length goose" could have fit a large number of men living in
the area where the stop occurred. Id. at 496, 597 N.E.2d 1029. We also observed that neither his proximity
to the crime scene nor his presence in a high crime area "contribut[ed] ... to the officers' ability to distinguish
the defendant from any other black male" in the neighborhood. Id. In particular, we noted that the police had
not observed the defendant engaged in any suspicious activities. Id.
[422 Mass. 371] In this case, unlike Cheek,
the information in Coakley's possession allowed him
to distinguish Mercado and his companion from other persons in the
vicinity. The radio report narrowed the
range of possible suspects to males of Hispanic descent who were in the
vicinity south of 146 Main Street. Lemerise's statement further narrowed the range of suspects
to males of Hispanic descent then present in the Kangaroo Crossing store. That information, coupled with the behavior
of Mercado and his companion on seeing a police officer as they left the store,
was sufficient for Coakley to form a reasonable suspicion
of those two particular men.
[7]
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. See Cheek, supra at 492, 597 N.E.2d 1029
(general description and proximity insufficient to warrant stop);
Commonwealth v. Thibeau, 384 Mass. 762,
764, 429 N.E.2d 1009 (1981) (quick maneuver to avoid contact with police
insufficient); Commonwealth v. Bacon, 381 Mass. 642,
646, 411 N.E.2d 772 (1980) (driver's attempt to conceal his face
insufficient). Each of these factors
may, however, be considered by the police, and in combination may allow the
police to narrow the range of suspects to particular individuals. See
Moses, supra at 140, 557 N.E.2d 14 (some suspects fleeing the scene while
another suspect ducked under car dashboard on police officer's approach
justified threshold inquiry); Commonwealth v. Sanchez, 403 Mass. 640,
645, 531 N.E.2d 1256 (1988) (suspect's flight after consenting to search
justified threshold inquiry); Wren, supra at 708 n. 2, 463 N.E.2d 344
("[a]n attempt to avoid contact with or observation by the police, while
not enough itself to justify suspicion, may be considered along with other
facts"); United States v. Viegas,
639 F.2d 42, 44, 45 (1st Cir.), cert. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981) (suspect's arrival from
known drug distribution center, coupled with evasive actions in airport,
warranted reasonable suspicion). In such
cases, an investigatory stop of such individuals is constitutional. This is such a case.
[8][9] We
now turn to the second inquiry arising from a "stop and frisk"
search: whether the scope of the search
was within constitutional limits. See Owens, supra at 600, 609 N.E.2d 1208;
Silva, supra at 405, 318 N.E.2d 895. Those limits are exceeded unless the search
is " 'strictly tied to and justified by' the circumstances which rendered
its initiation permissible." Silva, supra at 407, 318 N.E.2d 895,
quoting Terry, supra at 19, 88 S.Ct. at 1878.
"The degree of intrusiveness that is permitted is [422 Mass. 372] that which is 'proportional to the degree of suspicion that
prompted the intrusion.' " Moses, supra at 141, 557 N.E.2d 14,
quoting Commonwealth v. Borges, 395
Mass. 788, 794, 482 N.E.2d 314 (1985).
Because Coakley reasonably suspected Mercado
of having recently committed a violent crime, a pat‑down of Mercado's
outer clothing to determine whether he was armed was justified by the need to
protect police officers and bystanders.
See Adams v. Williams, 407
U.S. 143, 147‑148, 92 S.Ct. 1921, 1923‑1924,
32 L.Ed.2d 612 (1972); Terry, supra at 28‑29, 88 S.Ct. at 1883‑1884; Owens, supra at 600, 609
N.E.2d 1208.
Applying
constitutional principles to the instant case, we conclude that the evidence
should not have been suppressed.
"We believe the circumstances justified the officer's
actions." Commonwealth v. Sumerlin,
393 Mass. 127, 129, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985).
The order
allowing the motion to suppress is reversed, and the case is remanded to the
Superior Court for further proceedings consistent with this opinion.
So ordered.
(FN1.) The motion judge noted in his ruling
that "Officer Coakley had inconsistent
information from different sources."
While it is appropriate for the judge to consider the existence of
inconsistent information, inconsistencies alone do not foreclose the
possibility of reasonable suspicion. The
question is whether the officer knew sufficient articulable
facts to form a reasonable suspicion of particular individuals.