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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. Sanchez, 403
Supreme Judicial Court of Massachusetts,
Argued
Decided
Gregory P. Hancock, for defendant.
District Attorney for the Suffolk District, for the
Com.
Before [403
ABRAMS, Justice.
The
defendant appeals from his conviction for trafficking in cocaine. G.L. c. 94C, §§ 31,
32A(a ). (FN1)
The defendant alleges error in the denial of (1) his motion to
suppress; (2) his motion to dismiss,
based on a delayed arraignment after indictment; and (3) his posttrial
motion for a required finding of not guilty, or for a new trial. G.L. c. 278, §
11. Mass.R.Crim.P.
25(a), as amended, 389
The motion
judge found the following facts. On
The
defendant, as he left the shuttle ramp, watched MacDonald, who was holding a
large radio. The defendant did not take
his eyes off MacDonald. As MacDonald
followed the defendant, the defendant looked around at MacDonald and then
several times at Palombo, although the officers were
following the defendant apart from one another.
The defendant then went to the line of persons waiting for taxis.
[403 Mass. 642] Palombo walked up to the defendant as
the defendant stood in line. The officer
held open his wallet, displayed his badge at about waist level, said he was a
police officer, and asked the defendant if he would speak with him.
The
defendant became visibly pale and his hands began to tremble as he looked from
the officer's face to his badge. MacDonald
stood ten to fifteen feet away. The
defendant said, "Okay" to the request. Palombo asked the
defendant where he was coming from and where he was going, if he had a
business, if he were in business in Boston or New York. Palombo also asked
whether he had an airline ticket and identification. The defendant answered these questions. As the defendant sought his identification,
he put the magazines and brown paper bag between his legs. His legs appeared to tremble.
Palombo then stated that he was a narcotics investigator
and requested permission to search
the defendant for narcotics. Palombo told the defendant that the defendant was not
obliged to submit to a search, but was merely being asked if he would agree to
be searched.
The
defendant agreed to a search provided that it could be private and not in
public on the sidewalk. Palombo suggested a men's room nearby, and the defendant
agreed. Palombo
called over MacDonald. The three men
began to enter the airport terminal in single file, with MacDonald first, the
defendant second, and Palombo third. As MacDonald stepped on the automatic door
pad and entered the terminal, the defendant bolted into the street.
A taxicab
then struck the defendant and threw him back onto the side of the street near
the terminal. He fled, with MacDonald in
pursuit. When MacDonald identified
himself as a police officer, the defendant spun around quickly and knocked
MacDonald to the ground.
The
defendant ran in such a manner that he lost his shoes. During the flight, he scaled a fence. The defendant was apprehended some minutes
later, barefoot. He was arrested for an
assault on MacDonald. A search incident
to the arrest disclosed heroin. Although
not explicitly found by the motion judge, the defendant admits that the cocaine
was discovered during a [403 Mass.
643] custodial search of the
defendant at State police headquarters at Logan Airport after the arrest.
1. Fourth Amendment claim. The motion judge concluded that no
"seizure" occurred within the meaning of the Fourth Amendment to the
Federal Constitution, because the defendant's responses to the trooper's
questions were consensual until the defendant broke away. The judge also concluded that "the fact
is not disputed that the defendant committed an assault and battery on the
police officer." Therefore, he
found the subsequent search which yielded the heroin to be incident to an
arrest and thus constitutionally justified. United States v. Robinson, 414 U.S. 218,
225‑226, 94 S.Ct. 467, 472, 38 L.Ed.2d 427
(1973).
[1] We
first determine whether, as a matter of law, a "seizure" within the
meaning of the Fourth Amendment occurred when the officers initially approached
the defendant. (FN2) If there was no seizure, the police activity
in questioning the defendant did not violate the defendant's constitutional
rights. If, however, there was a seizure
not justified by reasonable and articulable
suspicion, the illegality of the seizure may render inadmissible the evidence
obtained.
"An
objective standard is used to determine when a seizure has occurred: 'a person has been "seized" ... if,
in view of all 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 [403 Mass. 644]
United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of
Stewart, J.). The defendant argues that
a reasonable man in his position would not have felt free to leave. We do not agree.
The United
States Supreme Court has not yet determined "whether mere questioning of
an individual by a police official, without more, can amount to a seizure under the Fourth Amendment."
Immigration & Naturalization Serv. v.
Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762,
80 L.Ed.2d 247 (1984). The United States
Court of Appeals for the First Circuit, however, has ruled that, under the
objective standard concerning consent, a seizure can be found "only where
the police have engaged in some 'show of authority' which could be expected to
command compliance, beyond simply identifying themselves as police."
United States v. West, 651 F.2d 71, 73 (1st Cir.1981), vacated on
other grounds, 463 U.S. 1201, 103 S.Ct. 3528, 77 L.Ed.2d
1382 (1983), cert. denied, 469 U.S. 1188, 105 S.Ct.
956, 83 L.Ed.2d 963 (1985). See United States v. Berryman, 717 F.2d
651, 661 (1st Cir.1983) (Breyer, J., dissenting), rev'd per curiam, 717 F.2d 650
(adopting dissenting opinion), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984); United States v. Regan, 687
F.2d 531, 535 (1st Cir.1982). See also Florida v. Royer, 460 U.S. 491, 497,
103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983)
(plurality opinion); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968).
There is
no indication that the police engaged in any "show of authority"
prior to the defendant's flight. In
addressing the officer's actions in approaching the defendant, the motion judge
found that Palombo identified himself as a police
officer, asked the defendant to talk, informed the defendant that he was
conducting a narcotics investigation, and asked the defendant if he would
consent to a search. The officer told
the defendant that he was not obliged to submit to a search, but was being
asked if he would so agree. (FN3) Except for the police officer's [403 Mass. 645] identification of himself, which included showing his badge, and
the officer's questioning of the defendant, there was no "show of
authority," United States v. West,
supra, and thus no seizure. Cf. Florida v. Royer, supra 460 U.S. at 508‑509,
103 S.Ct. at 1329‑1330 (Powell, J., concurring)
(police took the defendant to a "large closet," retrieved his baggage
without permission, and retained his ticket). Commonwealth v. Sanderson,
398 Mass. 761, 766, 500 N.E.2d 1337 (1986) (police blocked defendant's car).
Commonwealth v. Borges, 395 Mass. 788, 789‑790, 482 N.E.2d
314, (1985) (police made defendant remove his shoes). See
United States v. West, supra (show of authority may consist of physical
force, threatening presence, display of a weapon, physical touching, or use of
authoritarian language or tone of voice).
Until the time the defendant fled, therefore, his Fourth Amendment
rights had not been implicated.
[2][3] If
a defendant flees after having consented to a search, the officers are
justified in pursuing him for the purpose of subjecting him to an initial
investigatory inquiry. "A police
officer is warranted in making a threshold inquiry 'where suspicious conduct
gives the officer reason to suspect that a person has committed, is committing,
or is about to commit a crime.' " Commonwealth v. Bacon, 381 Mass. 642,
643, 411 N.E.2d 772 (1980), quoting
Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). "In following the constitutional
standards of Terry v. Ohio, supra, we
have required that the police officer's action be based on specific and articulable facts and the specific reasonable inferences
which follow from such facts in light of the officer's experience."
Commonwealth v. Silva, supra at 366 Mass. at 406, 318 N.E.2d
895. A flight from police, after an
initial consent to a search and before any pursuit by the police, provides a
reasonable and articulable suspicion justifying an
investigatory stop.
The
defendant relies on Commonwealth v. Thibeau, 384 Mass. 762, 429 N.E.2d 1009 (1981), for the
proposition that "the defendant's flight from the officer's pursuit cannot be
considered" to justify the investigatory stop. Id. at 764, 429 N.E.2d
1009. The defendant's reliance is
misplaced. In Thibeau, we said that "a stop
starts when pursuit begins." Id.
Because the police in that case began pursuing the defendant before he
fled, they could not use his subsequent
[403 Mass. 646] flight to
justify the stop. Here, however, the
defendant broke away from the police before they pursued him, thus providing
the police with a reasonable and articulable
suspicion before the stop. Also, here
the defendant's actions caused further suspicion because he fled after an
initial consent to a search. In Commonwealth v. Thibeau,
there had been no initial conversation between the police and the defendant,
and certainly no consent to a search.
[4] During
the course of his flight, the defendant struck MacDonald. When the defendant was apprehended, the
troopers arrested him for assault and battery on a police officer. Because the search which yielded the heroin
was incident to the defendant's arrest, it is lawful under the Fourth
Amendment. United States v. Robinson, 414 U.S. 218,
225‑226, 94 S.Ct. 467, 472, 38 L.Ed.2d 427
(1973). (FN4)
[5] 2. Late arraignment. The defendant argues that the delay of
approximately forty‑nine days between return of the indictment and the
time of his arraignment in Superior Court requires dismissal of the
indictment. There is no authority in
Massachusetts for dismissal of an indictment because of a delay in arraignment. "Dismissal of indictments is a drastic
remedy for official misconduct." Commonwealth v. Cinelli,
389 Mass. 197, 210, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983). (FN5)
Even in the case of a delay in bringing a defendant into court for the
first time after arrest, see Mass.R.Crim.P. 7(a)(1),
as amended, 397 Mass. 1226 (1986), the defendant's remedy is suppression of
evidence obtained from him during that delay.
See Commonwealth v. Hodgkins, 401 Mass. 871, 876‑877, 520 N.E.2d 145
(1988);
Commonwealth v. Dubois, 353 Mass. 223, 226, 230 N.E.2d 906 (1967);
Commonwealth v. Banuchi, 335 Mass. 649,
656‑657, 141 N.E.2d 835 (1957). In
the present case, no evidence was obtained from the defendant between
indictment and arraignment.
[403 Mass. 647] We do not excuse the Commonwealth's failure to bring the correct
man named Juan Sanchez from the Charles Street jail into the Superior Court on
the day set for arraignment. (FN6) Nevertheless, the defendant has not shown any
prejudice to his case, nor has he shown intentional misconduct on the part of
the Commonwealth or any unfair advantage to the Commonwealth‑‑especially
in the form of evidence obtained during the delay. Thus, there is no basis for dismissal of the
indictment.
[6] 3. Motion for required finding of not guilty
or for a new trial. The defendant
asserts that his acquittal on a charge of assault and battery on MacDonald at
Logan Airport requires a finding of not guilty on the drug charge because it
undercuts the motion judge's conclusion that the police had probable cause to arrest
him for assault and battery on a police officer. There is no merit to this argument.
The jury's
acquittal did not cast doubt on the officers' probable cause to arrest. "A finding of not guilty at a criminal
trial can result from any number of factors having nothing to do with the
defendant's actual guilt." Commonwealth v. Cerveny,
387
Mass. 280, 285, 439 N.E.2d 754 (1982). At most, the jury's verdict meant that the
Commonwealth had not proven its case of assault and battery on a police officer
beyond a reasonable doubt. That burden
of proof is different from the burden of proof for probable cause. See
Commonwealth v. Haas, 373 Mass. 545, 555, 369 N.E.2d 692 (1977),S.C., 398 Mass. 806, 501 N.E.2d 1154
(1986). The trial judge correctly
declined to interpret the jury's verdict as negating probable cause for the
defendant's arrest at the time the arrest was made.
JUDGMENT
AFFIRMED.
(FN1.) The defendant also was convicted of
possession of heroin, but the indictment was placed on file with the defendant's
consent. Thus, there is no appeal before
us as to this conviction. Commonwealth v. Tavares, 385 Mass. 140,
141 n. 1, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982). Commonwealth v. Delgado, 367 Mass. 432,
437‑438, 326 N.E.2d 716 (1975). We
discuss the legality of the arrest and search which yielded the heroin and the
facts surrounding the arrest and search, because these events led to the
discovery of the cocaine at issue. The
defendant does not argue that if the arrest and the search for heroin is legal
there is anything improper with the custodial search which yielded the cocaine.
(FN2.)
As part of his findings leading to the determination that there had been no
seizure, the motion judge found that, "[t]he defendant consented" to
be searched. The judge found the
following subsidiary facts which supported his finding of consent: "[T]he only evidence presented indicates
the defendant's responses and physical movements to have been consensual until
he broke away." He also found that
the defendant was expressly told that he did not have to submit to a
search. We accept the motion judge's
subsidiary findings of fact as long as they are supported by evidence.
Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947
(1980). The defendant does not argue
that these subsidiary facts are unsupported by the evidence. Rather, he claims that the facts of this
case, as a matter of law, compel the conclusion that there was no consent but
rather a Fourth Amendment seizure.
"[U]ltimate findings and rulings of a
judge may give rise to a meaningful appeal, even in a case where his subsidiary
findings are beyond practical challenge." Id. See
Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198 (1982), citing Brewer v. Williams, 430 U.S. 387, 403,
97 S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977).
(FN3.)
The defendant's version of the facts differs from those found by the motion
judge. The defendant claims that he
refused to consent to a search, at which point an officer grabbed him by the
right arm to escort him back into the terminal.
It was at this time, the defendant claims, that he broke away and
fled. Palombo
testified essentially as to the facts found by the motion judge, and the judge
found the officer's account to be credible.
We accept the judge's resolution of conflicting testimony.
Commonwealth v. Cruz, 373 Mass. 676, 682 n. 2, 369 N.E.2d 996
(1977).
(FN4.)
The defendant does not argue in his brief that the search violated G.L. c. 276, § 1.
Neither the statutory nor the constitutional legality of the search
which yielded the heroin is before us.
See note 1, supra. We note that the issue concerning G.L. c. 276,§ 1, was not raised before the motion judge,
and, therefore, the judge did not make any subsidiary findings on probable
cause to arrest for possession of controlled substances. We further note that the police testimony, if
credited, would support subsidiary findings to the effect that there was such probable
cause.
(FN5.)
The defendant was brought to trial ninety‑seven days after indictment.
(FN6.) We note
that the Commonwealth did arraign one Juan Sanchez on the appropriate day. However, the wrong Juan Sanchez was brought
to court and arraigned on that day.