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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. Phillips, 413
Supreme Judicial Court of Massachusetts,
Argued
Decided
Thomas J. Mundy, Jr., Asst. Dist. Atty. (Brian J. Carney, Asst. Dist. Atty., with
him), for Com.
Brownlow M. Speer, Committee for
Public Counsel Services,
[413
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.
O'CONNOR, Justice.
The
defendants were indicted for unlawfully carrying a firearm in a vehicle and for
the unlawful possession of ammunition.
The defendant Woody moved that the court "dismiss the indictments
against him or [ ] suppress all evidence obtained pursuant to his stop,
detention and arrest on
The
judge who dismissed the indictments set forth his reasoning as follows:
"On
"On
the basis of a hunch that the car was stolen the officers determined to reverse
their direction and requested a stolen car check. In order to do so it was necessary to proceed
some distance toward
" 'Yah,
listen. We got a car at
"Substantial
inconsistencies in the testimony of later events occur.
"The
officers described pulling their cruiser in behind the Nissan Maxima, the
defendants getting out of the vehicle and then back into the vehicle. They speak of suspicious body language once
back inside the car on the part of both defendants.
"The
officers testified they approached the Nissan where both defendants were
located and one of them observed a firearm on the floor of the vehicle
protruding from under a seat.
"The
Court is unable to credit this testimony based upon the statements of lay
witnesses, together with the announced policies of the Boston Police Department
and its practices in this area of the city, which will be subsequently
discussed.
"The
Court finds that after parking the Nissan both defendants left the vehicle and
were walking on the sidewalk at the corner of Beethoven and Washington Streets,
30‑45 feet from the Nissan, when approached by the officers. The defendants were stopped, searched and
placed in the cruiser, after which a search of the Nissan produced the weapon
that is the subject of these proceedings.
"Since
this was a body search and arrest and a vehicle search without a warrant the
burden rests on the Commonwealth to establish at the outset (and at the very
least) an articulable suspicion that something was
amiss and thereafter that probable cause existed to believe criminal conduct
had occurred. Commonwealth v. Antobenedetto,
366 Mass. 51, 315 N.E.2d 530 (1974),
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).
"As
early as March and not later than May of this year the Boston Police Department
at a level below that of the Commissioner's Office began the systematic
application of a Policy in the general area of Roxbury that had not previously
been formalized although it may well have had intermittent use for a much
longer time. The Policy was developed in
conjunction[413 Mass. 53]
with the formulation of a secret list of 'known gang members' which was
initially 150 in number but has now grown to around 750.
"The
Policy to which reference is made took official form in May when Deputy
Superintendent William R. Celester, Commander to 230
officers in the Roxbury District, announced that henceforth all known gang
members and their associates (whether known to be gang members or not) would be
searched on sight. Celester's
announcement was, in effect, a proclamation of martial law in Roxbury for a
narrow class of people, young blacks, suspected of membership in a gang or
perceived by the police to be in the company of someone thought to be a member.
"Apparently
taken aback by these candid pronouncements, the Police Commissioner, on May 23, 1989 issued a memorandum paying due
deference to the principles of the first, fourth, sixth and fourteenth
amendments [to the United States Constitution] and suggesting the 'Police
Department has a profound responsibility to ensure that every citizen is
guaranteed the exercise or enjoyment of rights secured by the Constitution and
laws of the Commonwealth'. Nothing more
than that was done. Mr. Celester's Machiavellian approach to the problems of
Roxbury has continued to be implemented.
"As
recently as September 10, at 2 a.m. Anthony Thomas, who resides in a van on a
lot in Roxbury, was rousted out by uniformed police with flashlights, placed in
a police cruiser while his van was searched and then released. The Commonwealth has offered no affidavit or
search warrant application to justify such an intrusion.
"I
have taken and credit testimony from blacks in the Egleston
Square area that they, as individuals and in groups, are forced to open their
mouths, placed spread eagle against walls, required to drop their trousers in
public places and subjected to underclothing examinations. Deputy Celester
stated to a reporter for the Boston Herald that his policy has resulted in
'hundreds of searches but few arrests'.
[413 Mass. 54] "The Court finds a tacit understanding exists in the Boston
Police Department that constitutionally impermissible searches will not only be
countenanced but applauded in the Roxbury area.
"This
is a problem which cannot be dealt with on a case by case basis, a fact
addressed by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 14 [‑15, 88 S.Ct.
1868, 1876, 20 L.Ed.2d 889 (1968) ]:
'...
The wholesale harassment by certain elements of the police community, of which
minority groups, particularly Negroes, frequently complain, will not be stopped
by the exclusion of any evidence from any criminal trial.'
"The
United States Supreme Court said in 1891:
'No
right is held more sacred, or is more carefully guarded, by the Common Law,
than the right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law.' Union Pac. R.R. v. Botsford
141 U.S. 250, 251 [11 S.Ct. 1000, 1001, 35 L.Ed. 734] [1891].
"ORDER
"It is ordered that these
indictments be dismissed and a copy of this memorandum be furnished to [the]
Attorney General ... for such action as he deems necessary to restrain further
unreasonable searches and seizures by the Boston Police Department."
The Fourth Amendment to the United States
Constitution proscribes unreasonable searches and seizures. "In order to assess the reasonableness of
[a police officer's] conduct [in regard to searches and seizures] as a general
proposition, it is necessary 'first to focus upon the governmental interest
which allegedly justifies official intrusion upon the constitutionally
protected interests of the private citizen,' for there is 'no ready test for
determining reasonableness other than by balancing the need to search [or
seize] against the invasion which the search [or seizure] entails.' Camara v. Municipal
[413 Mass. 55] Court, 387
U.S. 523, 534‑535, 536‑537, 87 S.Ct.
1727, 1734, 1735, 18 L.Ed.2d 930 (1967).
And in justifying the particular intrusion the police officer must be
able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 20‑21,
88 S.Ct. 1868, 1879‑1880, 20 L.Ed.2d 889
(1968). Despite the absence of probable
cause to make an arrest, the Supreme Court in Terry upheld a police officer's stopping of the petitioner in that
case and searching his outer clothing for a weapon. Articulable
suspicious circumstances requiring prompt investigation justified the stop. Id.
at 22‑23, 88 S.Ct. at 1880‑1881. In addition, the Court reasoned that "there must be a narrowly
drawn authority to permit a reasonable search for weapons for the protection of
the police officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable cause to
arrest the individual for a crime. The
officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that
of others was in danger." Id. at 27, 88 S.Ct.
at 1883. The burden to show that a warrantless search was reasonable and therefore not in
violation of the Fourth Amendment rests with the government.
Commonwealth v. Santiago, 410 Mass. 737, 744, 575 N.E.2d 350 (1991).
Commonwealth v. Antobenedetto, 366 Mass.
51, 57, 315 N.E.2d 530 (1974).
[1] It is clear that the Commonwealth did
not carry its burden to prove to the judge in this case that the police had
stopped the defendants and had searched their vehicle lawfully, in keeping with
the principles articulated in Terry v.
Ohio, supra. On the contrary, the
judge found that the police officers approached the defendants not on the basis
of an articulable, reasonable suspicion of criminal
activity, but, at the most, on the basis of a mere "hunch" that the
vehicle had been stolen. The judge also
found that the officers stopped the defendants when they were thirty to forty‑five
feet from their vehicle and were walking away from it, and that the search of
the vehicle occurred only after the defendants had been placed in the police
cruiser (and therefore [413 Mass. 56] posed no threat to the
officers). Therefore, the firearm and
ammunition, which the police took from the defendants' vehicle, cannot be used
against the defendants at trial.
"Courts which sit under our Constitution cannot and will not be
made party to lawless invasions of the constitutional rights of citizens by
permitting unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings
provide the context in which the judicial process of inclusion and exclusion
approves some conduct as comporting with constitutional guarantees and
disapproves other actions by state agents.
A ruling admitting evidence in a criminal trial, we recognize, has the
necessary effect of legitimizing the conduct which produced the evidence, while
an application of the exclusionary rule withholds the constitutional
imprimatur." Terry v. Ohio, supra 392 U.S. at 13, 88 S.Ct. at 1875.
[2] The Commonwealth argues that the
judge's findings were based on irrelevant evidence and that, therefore, the
findings should be set aside and the cases should be remanded to the Superior
Court for another hearing. Furthermore,
that hearing, says the Commonwealth, should be limited to the question whether
the seized evidence should be suppressed.
The evidence that the Commonwealth characterizes as irrelevant is the
evidence concerning a Boston police department policy to "search on
sight" all young, black persons in Roxbury suspected of being gang members
or of being in the company of a gang member.
The Commonwealth also characterizes as irrelevant evidence of other
allegedly illegal searches by either the officers who seized the firearm and
ammunition in this case or other officers.
We do not agree that the challenged evidence was irrelevant.
It is undoubtedly true that, had there
been no evidence of an official police policy of "searches on sight,"
evidence that the officers directly involved in this case or other officers on
various occasions conducted unconstitutional searches would not have been
relevant. Standing alone, evidence of
those isolated events would not have increased the likelihood that the
challenged search was unlawful. See Poirier v. Plymouth, 374 Mass. 206,
210, 372 N.E.2d 212 (1978). However, the
evidence of specific [413 Mass. 57] instances of constitutionally
unreasonable "on sight searches" tends to support the further
evidence of an official policy approving such procedures and, in our view, the
evidence of that official policy was relevant.
That policy evidence tended to support the eyewitness testimony relied
on by the judge to conclude that the search in this case was an "on sight
search." The Commonwealth's argument
that "other crimes" evidence is ordinarily not admissible in a
criminal proceeding, and that therefore, evidence of "other" police
conduct similarly should not have been admitted at the motion hearing, lacks
merit. Other crime evidence is
ordinarily inadmissible against a defendant in a criminal case, not because it
is irrelevant, but because "there is the danger that, because a defendant
appears to be a bad man capable of, and likely to commit, such a crime as that
charged, a jury might be led to dispense with proof beyond a reasonable doubt
that he did actually commit the crime charged.
Moreover, it is not fair that a defendant in the course of a trial
should be called upon to defend himself against accusations not set forth in the
indictment." Commonwealth v. Stone, 321 Mass. 471,
473, 73 N.E.2d 896 (1947).
We have previously considered the
relevance of an employer's policy to the question whether an employee had acted
in conformance with the policy. Where a
plaintiff asserted that a hospital's personnel director had committed an act of
racial discrimination, we stated that "evidence which may be relevant to
the plaintiff's showing of pretext may include ... the employer's general
practice and policies concerning employment of racial minorities."
McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 437, 541
N.E.2d 325 (1989), quoting Lewis v. Area
II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767, 493 N.E.2d 867
(1986). The same logic applies to the
present case. Certainly, having in mind
that ordinarily the relevance of evidence is left to the sound discretion of
the judge, see Commonwealth v. Marangiello, 410 Mass. 452, 456, 573 N.E.2d 500 (1991);
Commonwealth v. Fontaine, 402 Mass. 491, 496, 524 N.E.2d 75 (1988),
we cannot say here that the judge abused his discretion.
[413
Mass. 58] [3] The judge could have,
and as we hold, should have, ordered that the evidence obtained as a result of
the search of the defendants' vehicle be suppressed. However, the judge did not reach the
suppression question. Instead, he
dismissed the indictments, and it seems clear from his memorandum of decision
that he did so not because the police officers' conduct had irremediably
prejudiced the defendants, see
Commonwealth v. Manning, 373 Mass. 438, 443‑444, 367 N.E.2d 635 (1977),
but as a prophylactic remedy. Thus, the
judge described the police department's "search on sight" policy as
"a problem which cannot be dealt with on a case by case basis," and
he quoted the Supreme Court's statement in
Terry v. Ohio, supra 392 U.S. at 14‑15, 88 S.Ct.
at 1876, that "[t]he wholesale harassment by certain elements of the
police community, of which minority groups, particularly Negroes, frequently
complain, will not be stopped by the exclusion of any evidence from any
criminal trial."
We begin our discussion concerning the
proper remedy for the violation of the defendants' Fourth Amendment rights by
making an observation about the last quoted statement from Terry v. Ohio. Read in
context, that statement does not suggest that a dismissal of indictments would
be an appropriate antidote to pervasive police harassment of minority
groups. Indeed, it suggests the
opposite. After observing that the
exclusionary rule's effectiveness depends on the interest of the police in
obtaining convictions, id. at 14, 88 S.Ct. at 1876, the Court makes the point that those
officers who engage in wholesale harassment of minority groups are not likely
to be deterred by the exclusionary rule because law enforcement is not their
primary interest. That being so,
dismissal of indictments also would not be an effective deterrent to such
conduct.
Any prejudice to the defendants in this
case may be remedied by suppression of the ill‑gotten evidence. Therefore, as we said in Commonwealth v. King, 400 Mass. 283, 290, 508 N.E.2d 1382 (1987),
"we must consider whether, in the absence of prejudice to the defendant[s]
or substantial threat thereof, dismissal of these indictments is nevertheless
required for prophylactic reasons. Of
course, our inquiry in that regard [413
Mass. 59] begins with the
recognition that the public has a substantial interest in prosecuting those
accused of crime and bringing the guilty to justice." We noted further that "we have never
ordered the dismissal of an indictment for misconduct in the absence of
prejudice," id., and again in Commonwealth v. Lewin,
405 Mass. 566, 586, 542 N.E.2d 275 (1989), we said, "We have sometimes
remarked that outrageous police conduct, not shown to be prejudicial to a fair
trial, may require the dismissal of charges, but we have never dismissed
charges in such a circumstance (although we have upheld the suppression of
evidence in such situations)." We
need not decide whether, in the absence of prejudice or substantial threat of
it, an indictment may ever be dismissed because of egregious police
misconduct. It is enough for our present
purposes to recognize that the deterrent effect of dismissal of these
indictments would be little, if any, more than the deterrent effect of
suppression of the unlawfully obtained evidence. Of course, it remains to be seen whether,
without the suppressed evidence, the Commonwealth can marshal enough other
evidence to obtain a conviction on remand.
In any event, "[n]othing in the record
suggests, nor is there good reason to suppose, that, unless this court provides
a prophylactic remedy [beyond suppression], police officers are likely to
repeat the type of conduct that occurred in this case."
Commonwealth v. King, supra 400 Mass. at 292, 508 N.E.2d 1382.
The order dismissing the indictments is
vacated. These cases are remanded to the
Superior Court for the entry of an order suppressing any evidence obtained as a
result of the search of the motor vehicle occupied by the defendants on July
21, 1989.
So
ordered.
(FN1.) Two against Melvin Woody and one
against Lamar Phillips.