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CPS Commonwealth
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Commonwealth v. Redd, 50 Mass.App.Ct.
904 (2000)
Appeals Court of Massachusetts.
No. 99‑P‑578.
Deborah D. Ahlstrom,
Assistant District Attorney, for the Commonwealth.
Tracy E. Duncan,
RESCRIPT.
The Commonwealth
appeals from an order issued by a judge of the District Court allowing the
defendants' motion to suppress evidence gathered as a result of a stop by the
police of the taxicab in which the defendants were passengers. We vacate the order, and remand for further
proceedings. (FN2)
[1] The
evidence, as found by the motion judge, and as supplemented by the uncontroverted testimony of Detective James Goldrick, the sole witness at the hearing on the motion,
consisted of the following. (FN3) On February 17, 1998, Detective Goldrick and his partner, Detective Pedro Cruz, both of the
Springfield police department, were on patrol when they heard a radio dispatch
stating that a silver Chevrolet vehicle with the license number 604 EHA had been stolen from the Shriner's
Hospital. The dispatch further stated
that the theft of the vehicle had been reported by a construction worker at the
hospital [50 Mass.App.Ct.
905] and that he reported that the
vehicle had been stolen by an Hispanic male in his twenties wearing a white
bandana, blue jeans and a jacket. (FN4)
At the
time of the broadcast, Goldrick and Cruz were in the
vicinity of the hospital. While they
were trying to locate the stolen vehicle and less than ten minutes after
hearing the dispatch, they were apprised by radio that the stolen vehicle had
been abandoned approximately two blocks from the hospital, and subsequently had
been located by other police officers.
(FN5) On the same street and a
short distance from where the stolen vehicle had been abandoned, the detectives
noticed two dark skinned males who appeared to be in their
mid to late twenties, one of whom was wearing a white bandana, walk for a short
distance and then get into a taxicab.
Detective Goldrick believed the individual
wearing the bandana was also wearing blue jeans, but could not be sure. About ten to twenty minutes had elapsed from
the time the detectives received the radio dispatch to when they saw the
defendants walking along the street. The
detectives decided to follow the cab, and while they did so, Goldrick noticed the two males look back at the detectives
three or four times through the cab's rear window, and make movements as if
they were putting something on the floor.
At this time, the detectives activated their lights, signaling the taxi
to pull over.
The
detectives inquired of the defendants where they were coming from, at which
time Detective Cruz noticed loose ammunition on the floor. The detectives ordered the defendants to step
out of the vehicle, and placed them in handcuffs for safety purposes. Detective Cruz inspected the rear seat area
of the cab, and found thirty‑one bullets and a pistol. The detectives then placed the defendants
under arrest.
[2][3][4]
We first address a contention that the motion judge apparently deemed
significant that the officers had decided to stop the defendants at the time
they were first observed walking down the street. This finding is without consequence. It is well settled that a seizure, for
purposes of art. 14 of the Massachusetts Declaration of Rights, takes place if,
in the circumstances, "a reasonable person would have believed that he was
not free to leave." Commonwealth v. Stoute,
422 Mass. 782, 786, 665 N.E.2d 93 (1996), quoting from Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314
(1985). Therefore, whatever the
detectives' subjective intent may have been, the fact remains that, until the
detectives activated their lights, the passengers inside the cab continued on
their way, and it cannot reasonably be said that they did not feel free to
leave. See Commonwealth v. Groves, 25 Mass.App.Ct.
933, 935 & n. 2, 517 N.E.2d 172 (1987).
Rather, the seizure occurred when the detectives activated their lights,
signaling the taxi to stop. "A
police officer may stop a vehicle in order to conduct a threshold inquiry if he
has a reasonable suspicion that the occupants have committed, are committing,
or are about to commit, a crime. His
suspicion must be based on specific, articulable
facts and reasonable inferences drawn therefrom. A hunch will not suffice."
Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990),
quoting from Commonwealth v. Wren,
391 Mass. 705, 707, 463 N.E.2d 344 (1984).
[5][6] [50 Mass.App.Ct.
906] If, as here, "the police
conduct an investigatory stop based on an informant's tip, our evaluation of
the tip's indicia of reliability will be focused on the informant's reliability
and his or her basis of knowledge.
Independent police corroboration may make up for deficiencies in one or
both of these factors. Because the
standard is reasonable suspicion rather than probable cause, a less rigorous
showing in each of these areas is permissible." Commonwealth v. Lyons, 409
Mass. 16, 19, 564 N.E.2d 390 (1990). It
reasonably may be concluded that here the informant's basis of knowledge was
that he or she had witnessed a vehicle being stolen. Cf.
Commonwealth v. Anderson, 366 Mass. 394, 398, 399, 318 N.E.2d 834
(1974). The more crucial question is
whether the informant an unidentified construction worker was a sufficiently
reliable source of information to justify the detectives' actions. The answer is dependent on the extent
and quality of police corroboration.
As we have
stated, the informant provided information to the police that he had witnessed
a silver Chevrolet, with the license plate 604 EHA,
being stolen from the Shriner's Hospital where the
informant was working, and that the vehicle was being stolen by an Hispanic
male in his twenties, wearing a white bandana on his head. The vehicle was found abandoned nearby
shortly after being reported stolen, and it matched the informant's information
as to make, color and license plate number.
These facts "eliminat[e] the possibility
of a police fabrication which is a principal concern in assessing the propriety
of a threshold inquiry launched by an anonymous tip." Commonwealth v. Anderson, supra
at 399, 318 N.E.2d 834. See Commonwealth v. Lyons, supra at 20, 564
N.E.2d 390. See also Commonwealth v. Stoute,
supra at 790, 791, 665 N.E.2d 93
[7]
Moreover, one of the defendants fit the description given by the
informant. While a white bandana worn on
one's head is perhaps not a unique item of clothing, it is sufficiently
distinctive to have some corroborative value.
Detective Goldrick testified, and the judge
did not discredit, that the detective had not seen anyone else wearing a white
bandana that day, nor did he notice anyone other than the defendants in the
area. Also, the detectives noticed the
defendants walking along the street a short distance from the location of the
stolen vehicle. Goldrick
testified that the defendants entered the cab near 19 Grover Street and that
the stolen vehicle was abandoned at 46 Grover Street, approximately a quarter
to one half a block away. Finally, the
defendants' movements inside the cab provided the detectives with a further
basis for their suspicion. Compare Commonwealth v. Fraser, 410 Mass. 541,
545, 573 N.E.2d 979 (1991); Commonwealth v. Lyons, supra at 21, 564
N.E.2d 390 (suspicious behavior may heighten police concern).
[8] In
sum, the factors presented here provide adequate support for the detectives'
"reasonable suspicion that the occupants [had] committed, [or were]
committing ... a crime." Commonwealth v. Moses, supra at 140, 557
N.E.2d 14. "Neither evasive
behavior, proximity to a crime scene, nor matching a general description is
alone sufficient to support the reasonable suspicion necessary ... [but these
factors may] be considered by the police, and in combination may allow the
police to narrow the range of suspects to particular individuals."
Commonwealth v. Mercado, 422 Mass. 367, 371, 663 N.E.2d 243
(1996). See Commonwealth v. White, 44 Mass.App.Ct.
168, 172, 173, 689 N.E.2d 1350 (1998).
The order allowing the motion to suppress is vacated, and an order shall
be entered in the Springfield District Court denying the motion to suppress.
So ordered.
(FN1.) Commonwealth vs. Jamal Jackson.
(FN2.)
The defendants were charged with carrying a firearm without a license and possession
of ammunition without a firearm identification card.
(FN3.)
We pause to emphasize that, while we consider minor details of testimony to
which the motion judge did not specifically allude, we do not engage in
appellate fact finding. See Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 312, 599 N.E.2d 245 (1992). The motion judge did not state that he found
any aspect of Detective Goldrick's testimony to be
not credible. See Commonwealth v. Alvarado, 423 Mass. 266, 268 n. 2, 667 N.E.2d 856
(1996). Further, we in no way contradict
the motion judge's findings. We
"merely fill out the narrative,"
Commonwealth v. Butler, 423 Mass. 517, 526 n. 10, 668 N.E.2d 832 (1996),
which is necessary in light of the abbreviated findings of the judge. See
Commonwealth v. Willis, 415 Mass. 814, 816‑817, 616 N.E.2d 62 (1993).
(FN4.)
Although police went to the hospital, the construction worker was not found or
identified.
(FN5.)
Detective Goldrick testified also that while he
received information stating that the car had been located by uniformed
officers, he personally saw the car, albeit from down the street. Because the car was being attended to by
other officers, Goldrick did not approach the stolen
vehicle.