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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. Moscat, 49 Mass.App.Ct.
622 (2000)
Appeals Court of Massachusetts,
No. 99‑P‑1074.
Argued
Decided
Eric W. Ruben, Wayland, for the defendant.
Brian J.S. Cullen,
Assistant District Attorney, for the Commonwealth.
Present:
BROWN, PERRETTA, & GREENBERG, JJ.
GREENBERG, J.
Officer
Jerome Riley of the
As a
result of this encounter, the defendant was charged with unlawful possession of
a firearm (G.L. c. 269, § 10[a ] ) and possession of ammunition without the requisite firearm
identification card (G.L. c. 269, § 10[h ];
G.L. c. 140, § 129C). He moved in the District Court to suppress
the weapon discovered during the stop.
His motion failed. After trial
and conviction on both offenses, the defendant appeals, bringing up for review
the refusal to suppress.
To return
to the details of the stop and subsequent events, we draw the essential facts
from the judge's findings, with amplification from the record. Riley recognized most of the young people and
knew some by name but not the defendant.
Riley did not intend to arrest any of them. He merely told them to leave the area and
warned them of the consequences should he be compelled to return to the corner
that evening. While the others simply
grumbled a little and then dispersed empty‑handed, the judge found that
Riley "reasonably believed that the defendant was secreting alcohol under
his shirt."
The judge
ruled that Riley was justified in reaching out to pat frisk the defendant under
the holding of Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because
of the "accumulated factors and a reasonable concern for his personal
safety." Further, the judge thought
that Riley's limited intrusion was proportional to the degree of suspicion that
prompted the stop. She concluded that,
without contact, the pat frisk had not actually been conducted before probable
cause was established by the appearance of the gun.
[1]
"[T]he ultimate legal conclusion to be drawn from the fact[s] developed at
the hearing [on the motion to suppress] is a matter for our review,
particularly where the conclusion is of constitutional dimension."
Commonwealth v. Accaputo, 380 Mass. 435,
448 n. 18, 404 N.E.2d 1204 (1980). We do
not reach the question whether there was a valid basis for a Terry stop at the outset because, on
quite a different analysis from that employed by the judge, we hold that the
search was incident to a lawful arrest.
[2][3] [49 Mass.App.Ct.
624] We need to put aside
propositions that are not involved in order to reach the particular part that
is an issue. For the present analysis we
need not dispute that the police, before making an arrest, may approach and question
a person for investigative purposes without implicating constitutional
interests as long as the individual's ability to avoid the encounter remains
viable. See Michigan v. Chesternut, 486 U.S. 567,
573‑574, 108 S.Ct. 1975, 100 L.Ed.2d 565
(1988). For this reason, we need not
quarrel with Riley's approach to the drinkers on the corner. Similarly, there is no dispute that the
police may arrest minors in possession of alcohol. See G.L. c. 138, §
34C. Finally, we recognize that the
police may handle the situation without making an arrest if they so
choose. See Cambridge v. Phillips, 415 Mass. 126, 129 n. 3, 612 N.E.2d 638
(1993), quoting from Hameetman
v. Chicago, 776 F.2d 636, 641 (7th Cir.1985). What the police may not do is hamper an
individual's freedom of movement to the extent that an investigative inquiry
will be treated as an arrest. See Florida v. Royer, 460 U.S. 491, 502‑503,
103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). As such, a stop may not be so intrusive in
duration or manner as to violate constitutional
provisions unless done on probable cause.
See id. at 501, 103 S.Ct. 1319.
[4]
"[P]robable cause exists where, at the moment of
arrest, the facts and circumstances within the knowledge of the police are
enough to warrant a prudent person in believing that the individual arrested
has committed or was committing an offense." Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992),
quoting from Commonwealth v. Storey,
378 Mass. 312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). Reasonable inferences may be considered as
well. See Commonwealth v. Kennedy, 426 Mass. 703, 707, 690 N.E.2d 436
(1998). " 'Whether an inference is
warranted or is impermissibly remote must be determined, not by hard and fast
rules of law, but by experience and common sense.' Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618 [563 N.E.2d 1379] (1990), S.C., 410 Mass. 1005 [572 N.E.2d 553]
(1991), quoting Commonwealth v. Drew,
4 Mass.App.Ct. 30, 32 [340 N.E.2d 524] (1976)." Id.
at 707‑708, 690 N.E.2d 436. The
sum total must be "more than mere suspicion but something less than
evidence sufficient to warrant a conviction." Commonwealth v. Badgett, 38 Mass.App.Ct. 624,
625, 650 N.E.2d 818 (1995), quoting Commonwealth
v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993).
[5]
Turning to the instant case, we are satisfied that when Officer Riley stopped
the defendant on his bicycle he had probable [49 Mass.App.Ct. 625] cause to arrest him.
(FN1) As in Commonwealth v. Kennedy, supra at 708, 690 N.E.2d 436, were we
"to scrutinize in isolation" each fact then known to the officer, we
might conclude that Riley lacked probable cause. However, all of the circumstances taken
together objectively warranted a reasonable belief that the defendant was
currently committing a crime: possessing
alcohol while underage.
First, the
officer had a report that a group of rowdy teenagers were drinking alcohol and
annoying the neighbors. Second, the
officer saw the defendant, who looked‑‑and was‑‑underage,
standing with friends in front of a collection of half‑full beer
bottles. Third, after the rest of the
group took off and the defendant rode away up Duncan Street, his particular
behavior on the bicycle‑‑hunched over the seat, pressing his left
arm to his side, and steering with one hand despite the obvious difficulty it
gave him‑‑drew Riley's attention.
The defendant appeared to be clutching something underneath his
shirt. The officer's inference that the
"something" was a bottle of beer was warranted, and based on common
sense. It was at this point that he left
his police car and asked the defendant what he was concealing. The defendant said nothing, still holding his
left arm close. Perhaps none of the
aspects of the situation, standing alone, would suffice to establish probable
cause for the arrest of the defendant, but taken together there was
enough. See Commonwealth v. Santaliz, 413 Mass. 238,
242, 596 N.E.2d 337 (1992). Compare Commonwealth v. Laureano,
411 Mass. 708, 710, 584 N.E.2d 1132 (1992) (police officer's observation of bag
of white powder in plain view in urinal within arm's length of defendant, who
was standing by but not using urinal, established probable cause). (FN2)
[6] It
appears that Riley's search of the defendant's person preceded his arrest. That was the circumstance in Commonwealth v. Johnson, 413 Mass. 598,
602, 602 N.E.2d 555 (1992), where the Supreme Judicial Court said that
"[t]he fact that the search preceded the formal arrest is not important,
'as long as probable cause [to arrest] existed independent of the results of
the [49 Mass.App.Ct.
626] search,' " quoting Commonwealth v. Brillante,
399 Mass. 152, 154‑155 n. 5, 503 N.E.2d 459 (1987). In this case, the purpose of the subsequent search
of the defendant was to identify the object which the defendant was attempting
to conceal under his shirt: suspected,
of course, to be a bottle of beer. See G.L. c. 276, § 1 (authorizing searches incident to arrest
for purpose of seizing evidence of that crime).
Here the police had probable cause to search the defendant for alcoholic
beverages, coupled with the exigent circumstance of his riding away from the
intersection. "As the search [of
his person] was constitutionally permissible in objective and scope, the
[weapon was] admissible in evidence although [its] discovery was wholly
unanticipated." Commonwealth v. Skea,
18 Mass.App.Ct. 685, 701, 470 N.E.2d 385 (1984).
Judgments affirmed.
BROWN,
J. (concurring).
I do not
think "the search was incident to a lawful arrest." The troubling issue to be decided here, as I
see it, is whether a manifestation of an intention to conduct an illegal
search, if it causes contraband to be discovered, is the functional equivalent
of an actual, physical, illegal search.
In the
circumstances presented here, the motion judge properly could have concluded
that the stop of the defendant was a permissible threshold inquiry because
Officer Riley had a reasonable suspicion that the defendant was committing the
misdemeanor offense of carrying alcohol on his person.
Reasonable
suspicion to conduct a threshold inquiry, however, does not automatically
entitle the investigating officer to conduct a protective pat frisk of the
suspect. The officer must, in addition,
have reason to believe that the suspect may be armed and dangerous.
Commonwealth v. Mercado, 422 Mass. 367, 371‑372, 663 N.E.2d
243 (1996). The motion judge listed as
factors justifying Officer Riley's conducting a protective pat frisk of the
defendant: (1) that Officer Riley was
alone; (2) that it was ten o'clock at
night; (3) that Riley's encounter with
the defendant took place in the Dorchester section of Boston. These three factors are plainly insufficient
to justify the protective search of the defendant. Even combining the factors of the place, the
hour, and the absence of other officers with the defendant's wobbly bicycle
riding and efforts at concealing something, I do not think these circumstances
are sufficient to justify the pat frisk as a permissible[49 Mass.App.Ct. 627] protective search. (FN1)
Here the defendant's attempt to hide something under his shirt permitted
Officer Riley to form a reasonable suspicion that the defendant was a minor in
possession of alcohol, something that would have posed no danger to the
officer. "[T]he ... [police] have
pointed to no particular facts from which they reasonably could infer that the defendant was armed and
dangerous." Commonwealth v. Gutierrez, 26 Mass.App.Ct. 42, 47, 522 N.E.2d 1002 (1988) (emphasis in
original). But if Officer Riley had a
reasonable suspicion that the defendant was concealing harmless contraband, he
could not also have had a reasonable suspicion, based on the very same
evidence, that the defendant was concealing a weapon. (FN2)
The trial
judge made a specific finding, based in part on her own questioning of Officer
Riley, that the officer had only reached out to the defendant with the
intention of pat frisking him, but had not actually touched him, when the
defendant moved his left arm, allowing the handgun he had been concealing to
fall into plain view. I accept the
judge's finding of fact on this point.
To me,
that Riley had not touched the defendant when the gun fell has legal
significance. Suppression is required if
the gun was discovered as the result of an illegal search. See
Commonwealth v. Loughlin, 385 Mass. 60, 63, 430
N.E.2d 823 (1982) ("Because the evidence in issue was traceable to the
illegal pat‑frisk of Loughlin ... it must in
these circumstances be suppressed as the 'fruit of the poisonous tree'
"). But the defendant is not
entitled to suppression of the gun because it accidentally fell from his person
or was dropped by him in anticipation
of an illegal search. See and compare State v. Smith, 134 N.J. 599, 621, 637
A.2d 158 (1994) ("the premature announcement of an intent to perform a pat‑down
does not debilitate the officer so that he will not later be able to perform a
pat‑down should sufficient facts come to light").
The motion
judge warrantably could deny the defendant's [49 Mass.App.Ct.
628] motion to suppress because a
valid threshold inquiry was followed by the discovery of the gun before the
investigating officer had begun what would have been an invalid protective pat
frisk.
(FN1.) "The fact that the officer may
have subjectively intended only to make an investigative stop is immaterial as
long as probable cause to arrest existed." Commonwealth v. Owens, 414
Mass. 595, 600, 609 N.E.2d 1208 (1993).
See Commonwealth v. Blais, 428 Mass. 294, 296, 701 N.E.2d 314 (1998).
(FN2.)
Because there was probable cause to arrest, it is unnecessary to consider, as
the concurring justice does, whether the officer's reasonable suspicion that
the defendant was carrying contraband justified his attempt to frisk him, which
caused the weapon to fall into plain view.
(FN1.)
This court need not accept the motion judge's conclusion that on the facts
presented the officer had a reasonable fear for his safety. See
Commonwealth v. Thinh Van Cao,
419 Mass. 383, 384, 644 N.E.2d 1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995).
(FN2.)
I do not pause to discuss the Commonwealth's contention that the bottle Officer
Riley thought the defendant was carrying could have been used as a weapon. The idea that Officer Riley feared that the
defendant was suddenly going to club him with the object the defendant was
taking such pains to conceal strains credulity.