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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. Ramos, 430
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Thomas H. Townsend, Assistant District Attorney, for
the Commonwealth.
Bonnie G. Allen,
Present:
COWIN, J.
[1] We
granted the Commonwealth's application for direct appellate review to decide
whether, under art. 14 of the Massachusetts Declaration of Rights, a person is
seized when the police congregate outside an apartment, state that they will
not leave until an individual comes out, and threaten to have the fire
department break down the door if the person does not comply. (FN1)
We conclude that a person is seized, for the purposes [430
The
defendant was charged with unlawful distribution of cocaine in violation of G.L. c. 94C, § 32A (c
), and distribution of drugs in a school zone in violation of G.L. c. 94C, § 32J.
Prior to trial, the defendant moved to suppress photographs taken of her
by the police. The photographs were used
to identify her as a cocaine distributor.
Following an evidentiary hearing, a judge in the Superior Court allowed
the motion. The motion was properly
allowed.
[2] We
recite the relevant facts found by the judge who heard the motion to
suppress. While we do not disturb
subsidiary findings when warranted by the evidence, ultimate findings and
conclusions of law, particularly those of constitutional dimension, are open
for independent review on appeal. Commonwealth v. Cruz, 373
During a drug investigation, Massachusetts
State Trooper Henot Rivera made an undercover
purchase of crack cocaine from an Hispanic female at a
The police
conducted surveillance of the apartment where Trooper Rivera purchased the
drugs, but were unable to obtain a photograph of the defendant. Three days after the purchase, Lieutenant
Sullivan and three other officers returned to the apartment in order to
identify Rivera's distributor. By
looking into the apartment from positions outside the building, Lieutenant
Sullivan was able to observe a male and female inside the apartment. He recognized the male as William Lanoue.
The police
devised a ruse to lure the defendant from Lanoue's [430 Mass. 547] apartment in order to take her photograph. (FN3) The officers knocked at the apartment
door. Lieutenant Sullivan identified
himself and asked to see the defendant.
He told her that the police had received a report of a disturbance and
wanted to be certain that the defendant was not harmed. Lanoue and the
police officer exchanged remarks through the door, with Lanoue
becoming upset and yelling at the officers.
Through
the door the defendant told Lieutenant Sullivan she had not been harmed. Undeterred, Lieutenant Sullivan repeatedly
requested that the defendant leave the apartment so he could make a personal
observation of her. He told the
defendant that the police would remain by the door until she complied. He also threatened to call the fire
department to break down the door.
During this exchange, other officers were calling to the defendant from
the street.
The
officers' requests continued. Eventually
the defendant left the apartment. The
defendant testified that she passed down the stairs, out of the building and
onto the street corner before she encountered the officers; Lieutenant Sullivan testified that the police
waited in the hallway for the defendant.
(FN4) When the defendant
approached the officers, she provided identifying information and allowed
herself to be photographed in order to end the encounter. (FN5)
The police used the photograph to identify the defendant, who was later
arrested and indicted.
[3][4] The
Commonwealth concedes that the police had neither [430 Mass. 548]
reasonable suspicion nor probable cause to stop the defendant. Thus, our inquiry is confined to whether the
police seized the defendant within the meaning of art. 14. (FN6)
A person is seized by a police officer under art. 14 "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, 64 L.Ed.2d 497 (1980).
Recently,
in Commonwealth v. Stoute,
422 Mass. 782, 665 N.E.2d 93 (1996), we utilized the "free to leave"
standard in determining whether a person were seized under art. 14. We concluded, in the context of a police
pursuit, that a person being pursued is seized when the circumstances,
objectively considered, indicate to that person that "he would not be free
to leave the area (or to remain there) without first responding to a police
officer's inquiry." Id. at 789, 665 N.E.2d 93. At that moment, when the person is neither
free to stay nor leave without police interference, that person "is
plainly the object of an official assertion of authority, which does not intend [430 Mass. 549] to be denied, and which infringes considerably on the person's
freedom of action." Id.
The Stoute case
involved a police attempt to pursue, detain, and question a person riding a
bicycle on a public street. Id. at 784, 665 N.E.2d 93. This case involves a police attempt to force
a person to leave an apartment and submit to being photographed. If the defendant in Stoute remained where he was on the
street, he would have been required to respond to police inquiry and if he
attempted to leave the area, as he did, the police would chase him. If the defendant in this case remained in the
apartment, the police threatened to enter by force, and if the defendant did
attempt to leave, the police waited to confront her. In both situations, the police, without
reasonable suspicion or probable cause to believe either person had committed a
crime, used tactics that deprived the individual of freedom of movement.
We were
concerned, in Commonwealth v. Stoute, supra at 788‑789, 665 N.E.2d 93, that
individuals be able to avoid prolonged police interaction when the police have
no basis for suspecting criminal wrongdoing.
We do not see a significant difference between the police chasing a
person on a public street, and the police locating and trapping the defendant
in an apartment. In both circumstances
the police attempted to deprive the citizen of all methods of avoiding police
contact. We apply the Stoute
standard to determine whether the police seized the defendant.
The
defendant, in this case, was seized within the meaning of art. 14 when the
police notified her that they would not leave until she came out of the
apartment and that if she continued to refuse, they would have the fire
department break down the door. At that
moment, the defendant was not free to leave the apartment or to remain there
without responding to police inquiry.
She was deprived of all available options to avoid the police. The police tactics violated the defendant's
freedom of movement guaranteed by art. 14.
See Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981) (
"Stops provoke constitutional scrutiny because they encumber one's freedom
of movement").
The
Commonwealth points to facts indicating that the defendant would have been able
to avoid unwanted police contact: the
police did not draw their guns or attempt to use force to enter the apartment; the police engaged in a ruse to attempt to
force the defendant to leave and the defendant was behind a door, in the
company of another person.
[5][6]
These factors do not undermine our conclusion.
Contrary to [430 Mass. 550] the Commonwealth's contention, the
judge did not find that the police did not draw their guns; the record contains no evidence to that
effect. Were we to assume that the
police did not draw their guns, the result would be no different. We view "all the circumstances
surrounding the incident" in determining whether a person was seized.
Commonwealth v. Thinh Van Cao,
419 Mass. 383, 387, 644 N.E.2d 1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995), quoting Commonwealth v. Borges, 395 Mass. 788,
791, 482 N.E.2d 314 (1985). A police
officer approaching a suspect with a drawn gun is one factor indicative of a
seizure. See Commonwealth v. Bottari, 395 Mass. 777,
779, 782‑783, 482 N.E.2d 321 (1985) (holding police made illegal arrest
when, without probable cause, they ordered defendants out of automobile with
guns drawn). In this case, the police
threatened that they would either remain in the hallway until the defendant
came out or that they would enter the apartment using overwhelming force. The police coercion consisted of threats
through the door. It is not relevant in
these circumstances whether the officers drew their guns. Cf.
Commonwealth v. Stawarz, 32 Mass.App.Ct.
211, 213‑215, 587 N.E.2d 797 (1992) (police unlawfully seized individuals
where, without probable cause, officers used excessive force without drawing
guns).
It is not
necessary to decide whether Lieutenant Sullivan's initial request that the
defendant leave the apartment to confirm her safety was permissible. See
Commonwealth v. Sepulveda, 406 Mass. 180, 182‑183, 546 N.E.2d 879
(1989) (police may employ ruse to gain entry into residence in certain
situations). Ruses must be designed to
elicit "consensual entry." Id. at 182, 546 N.E.2d 879. Otherwise, attempted police ruses run the
risk of provoking violence, unwarranted intrusion on privacy, and damage to the
residence. Id. at 182‑183, 546 N.E.2d
879. In the present case, when the
defendant refused to cooperate with Lieutenant Sullivan's request, the ruse
ended. Threatening to remain on the
premises until a citizen complies with a police request or to break down the
door are not ruses. They are threats of
intimidation or violence. In view of
these threats, it is not relevant that the defendant was behind a door in the
company of another person. (FN7)
The
photograph of the defendant taken by the police was a direct result of the
police officers' unlawful seizure of the defendant in the apartment and must be
suppressed under the [430 Mass. 551] "fruit of the poisonous
tree" doctrine set forth in
Commonwealth v. Reyes, 423 Mass. 568, 670 N.E.2d 147
(1996).
The
Superior Court judge's order suppressing the defendant's photograph is
affirmed.
So ordered.
(FN1.) The Commonwealth's application for
leave to appeal from the allowance of the motion to suppress was allowed by a
single justice of this court who ordered the appeal entered in the Appeals
Court.
(FN2.)
We limit our analysis to art. 14 of the Massachusetts Declaration of Rights,
the only ground argued by the defendant before the motion judge.
(FN3.)
The police wanted to obtain the defendant's photograph to ascertain whether
Trooper Rivera could identify the defendant as the crack cocaine supplier in
the undercover purchase he had conducted a few days earlier.
(FN4.)
The judge did not make an explicit finding as to the location of the police
when the defendant left the apartment.
However, there is no dispute that the police officers' demands continued
until the defendant left the apartment.
(FN5.)
The motion judge's subsidiary findings were that the police waited outside the
apartment and on the street, told the defendant that they would not leave until
she left the apartment, and threatened to break down the door in order to
enter. The motion judge then reached the
ultimate conclusion that the defendant's departure from the apartment building
was "entirely volitional," reflected an "uncoerced"
state of mind and that she "agreed" to be photographed by the
police. Despite these determinations,
the motion judge concluded that Ramos was seized within the meaning of art. 14
because an objectively reasonable person would not have believed she was free
to leave the apartment or to remain there without first responding to the
police officers' inquiry. Commonwealth v. Stoute,
422 Mass. 782, 786, 665 N.E.2d 93 (1996).
Based on his determination that Ramos was seized and that the police
lacked reasonable suspicion or probable cause for the seizure, the motion judge
granted the motion to suppress the photograph.
While we
disagree with the motion judge's ultimate conclusions that the defendant's
departure was volitional and uncoerced and that she
agreed to be photographed, we agree with his rulings of law granting the motion
to suppress. See Commonwealth v. Cruz, 373 Mass. 676, 684, 369 N.E.2d 996 (1977)
(disagreeing with judge's ultimate conclusion that defendant as not "in
custody" until formally arrested but affirming judge's denial of motion to
suppress). See also Commonwealth v. Jackson, 377 Mass. 319, 325‑329, 386 N.E.2d
15 (1979) (deferring to judge's findings on subsidiary facts, but disagreeing
with judge's ultimate conclusion that defendant's waiver of Miranda rights was
voluntary, intelligent and knowing); Commonwealth v. Murphy, 362 Mass. 542,
550‑551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring) (noting that
judge's ultimate findings, when of constitutional proportions, are reviewable on appeal).
(FN6.) Article 14 of the Declaration of Rights
of the Massachusetts Constitution, adopted in 1780, reads as follows:
"Every
subject has a right to be secure from all unreasonable searches, and seizures,
of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this
right, if the cause or foundation of them be not previously supported by oath
or affirmation; and if the order in the
warrant to a civil officer, to make search in suspected places, or to arrest
one or more suspected persons, or to seize their property, be not accompanied
with a special designation of the persons or objects of search, arrest, or
seizure: and no warrant ought to be
issued but in cases, and with the formalities prescribed by the laws."
(FN7.) Because our decision is based on art.
14, we do not consider the Commonwealth's arguments premised on Florida v. Bostick,
501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991),
and United States v. Jerez,
108 F.3d 684 (7th Cir.1997).