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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. Stoute, 422
Supreme Judicial Court of Massachusetts,
Argued
Decided
Dennis M. Powers,
John P. Zanini, Assistant District Attorney, for the
Commonwealth.
Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR
and GREANEY, JJ.
GREANEY, Justice.
We
transferred the appeal of the defendant, Dion L. Stoute, to this court on our
own motion to decide whether, under art. 14 of the Declaration of Rights of the
Massachusetts Constitution, a person is "seized" when a police
officer engages in pursuit which is intended to stop and detain the person for
inquiry or whether a seizure occurs only when the person is physically detained
by a police officer. We [422
The
defendant was convicted by a jury in the Superior Court of trafficking in
cocaine, in violation of G.L. c. 94C, § 32E (1990 ed.), and for possession of
marihuana, in violation of G.L. c. 94C, § 34 (1994 ed.). Prior to trial, he moved to suppress drugs
seized by the police. Following an
evidentiary hearing, a judge in the Superior Court denied the motion, and the
correctness of that ruling is the only issue raised on appeal. We conclude that the motion to suppress was
properly denied and affirm the judgments of conviction.
In his
written memorandum of decision, the judge recited the following facts. (FN1)
Around 10:45 P.M. on July 22, 1991, two Boston police officers,
accompanied by a State trooper, all in plain clothes, left the parking lot of
the police station in the Roxbury section of Boston in an unmarked, Crown Victoria
automobile. A short distance from the
parking lot, the driver of the vehicle noticed a group of young people, most of
them female, in front of a sandwich shop.
Two young men on bicycles, one dressed in a black sweatshirt with a hood
over his head, were passing the sandwich shop, heading toward the vehicle. The area is one with a "very high"
rate of crime. (FN2) As the automobile passed the group of girls,
one of them (FN3) yelled that the boy in the "hoody" (vernacular term
for [422 Mass. 784] hooded sweatshirt) had a gun. (FN4)
The driver turned the automobile around, and followed the two young men,
simultaneously informing the other officers of what he had heard. When the automobile pulled alongside the
young men, the police officer in the passenger seat said, "Police, hold up
a minute." The individual in the
black sweatshirt stopped and raised his hands over his head. The trooper got out of the back seat of the
vehicle and rapidly frisked this young man.
Nothing was found.
The other
bicyclist (the defendant) continued to ride down the street at an increased
rate of speed. As soon as the police
officers ascertained that the trooper had not found a firearm, they followed
the defendant and again pulled up alongside of him. Officer Murphy, the passenger, recognized the
defendant as someone with whom he had spoken in the past. The defendant had always been cooperative and
respectful with the police. Officer Murphy
again asked the defendant to stop.
Instead of obeying the command, the defendant rode his bicycle onto the
sidewalk, jumped off it, and ran in the direction opposite to the one in which
he had been riding. Officer Murphy left
the automobile and pursued the defendant, who ran a short distance before
vaulting over a fence, simultaneously discarding a white plastic bag. The defendant landed on his back and did not
get up. Officer Murphy jumped over the
fence and physically detained the defendant.
The package, retrieved by the police officers, contained white powder,
presumed (correctly as it turned out) to be cocaine. The defendant was placed under arrest for the
unlawful possession of a controlled substance.
When he was searched in connection with his arrest, marihuana was found
on his person.
[1]
1. The defendant concedes that the
decision of the United States Supreme Court in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d
690 (1991), forecloses any argument that the Fourth Amendment to the United
States Constitution requires suppression of the evidence. In the
Hodari D. case, a majority of the Court rejected the claim that a person is
"seized," for the [422
Mass. 785] purpose of the Fourth
Amendment, when a police officer commences a pursuit of the person in
circumstances indicating an obvious intention on the part of the police officer
to detain the person for questioning.
Instead, the Court concluded, a person is seized only when a police
officer with lawful authority actually lays hands on, and manages to detain,
the person. (FN5) See id.
at 624, 111 S.Ct. at 1548‑60. As
the defendant acknowledges, under the reasoning in the Hodari D. decision, he was not seized until Officer Murphy jumped
over the fence and physically detained him.
Thus, the package that the defendant discarded during the pursuit was
abandoned by him before he was seized, and its retrieval was not the fruit of
an illegal seizure effected without reasonable suspicion or probable
cause. See id. at 629, 111 S.Ct. at 1552.
[2]
2. We turn, therefore, to a question to
which we have recently alluded, see
Commonwealth v. Thinh Van Cao, 419 Mass. 383, 386‑387, 644 N.E.2d
1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995): whether art. 14 (FN6) provides more
substantive protection to a person than does the Fourth Amendment in defining
the moment at which a person's personal liberty has been significantly[422 Mass. 786] restrained by the police,
so that he may be said to have been "seized" within the meaning of
art. 14. (FN7)
"Massachusetts
courts have adhered to the test set forth in the Mendenhall‑ Royer line of cases [Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983);
United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ] decided prior
to Hodari D. as the proper analysis
whether a seizure has occurred under art. 14 of the Massachusetts
Constitution." Commonwealth v. Thinh Van Cao, supra at
387, 644 N.E.2d 1294. See Commonwealth v. Willis, 415 Mass. 814,
817 n. 4, 616 N.E.2d 62 (1993). That
analysis provides that a person is "seized" by a police officer
"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,
supra at 554, 100 S.Ct. at 1877.
See Commonwealth v. Thinh Van Cao,
supra; Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979
(1991). (FN8) The
Hodari D. decision represents a revision of the United States Supreme
Court's definition of seizure, see
Commonwealth v. Thinh Van Cao, supra at 386, 644 N.E.2d 1294, as well as a
departure from that Court's precedent.
See California v. Hodari D., supra
499 U.S. at 629‑642, 111 S.Ct. at 1552‑1559 (Stevens, J., dissenting). We implied in the Thinh Van Cao opinion that we might not accept this revised
definition of the term "seizure," which has been widely [422 Mass. 787] criticized, (FN9) for the purpose of art. 14 analysis. (FN10)
See State v. Oquendo, 223
Conn. 635, 651, 613 A.2d 1300 (1992) (rejecting reasoning in Hodari D. decision on basis of State
Constitution); State v. Quino, 74 Haw. 161, 170, 840
P.2d 358 (1992) (same), cert. denied, 507 U.S. 1031, 113 S.Ct. 1849, 123
L.Ed.2d 472 (1993); Matter of Welfare of E.D.J., 502 N.W.2d
779 (Minn.1993) (same); State v. Tucker, 136 N.J. 158, 165, 642
A.2d 401 (1994) (same); People v. Hollman, 79 N.Y.2d 181, 195‑196,
581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) (same); Commonwealth v. Matos, 543
Pa. 449, 672 A.2d 769 (Pa.1996) (same).
(FN11)
The
majority's decision in the Hodari D.
case rejected the assertion that pursuit could be a seizure in constitutional
terms by reference to the common law definition of arrest (equating
"seizure" with "arrest"), (FN12) and by observing that, as
matter of policy, it would be unwise to reward a flight from the police by the
exclusion of evidence discarded during the flight. We have on occasion invoked common law
principles to construe the language of art. 14, see Jenkins v. Chief Justice of the Dist. Court Dep't, 416 Mass. 221,
231‑ 233 & n. 20, 619 N.E.2d 324 (1993), but we
have never suggested, nor could we properly suggest, that the strictures of the
common law should operate [422 Mass.
788] to diminish the protection from
abuse of official power that art. 14 was intended to afford to the citizens of
the Commonwealth. (FN13) See id.
at 230, 619 N.E.2d 324 (art. 14 was a response to "unchecked control over
the liberty of the people" inherent in British Crown's general warrants
and writs of assistance). See also Commonwealth v. Ford, 394 Mass. 421,
426, 476 N.E.2d 560 (1985) (art. 14 requires exclusion of evidence seized in
violation of constitutional rights); Commonwealth v. Upton, 394 Mass. 363,
365, 476 N.E.2d 548 (1985) (common law of Massachusetts did not mandate
exclusion of illegally obtained evidence).
Moreover,
we do not write on a blank slate on the question of police pursuit as an
assertion of governmental authority having constitutional implications. In
Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981), we
considered a case involving facts similar to those recited in the Hodari D. decision. The defendant in the Thibeau case was riding a bicycle in the Jamaica Plain section of
Boston around 10 P.M. in August, 1979.
Two police vehicles, one of them marked, pulled up alongside him. The defendant looked at the marked cruiser,
turned sharply to his left, and pedalled away.
Using his siren, the officer in the unmarked cruiser pursued the
defendant, ultimately reaching out, grabbing him, and forcing him to the
sidewalk. During the ensuing search of
the defendant's person, the officer discovered narcotics. Id. at 763, 429 N.E.2d
1009. Clearly, the officer had no
specific and articulable facts on which to base a reasonable suspicion of
criminal activity before he commenced his pursuit of the defendant. Id.
at 763‑764, 429 N.E.2d 1009.
Thus, the question in the Thibeau
case was whether evidence attributable to the pursuit had been obtained as a
result of an unconstitutional "seizure."
We stated
in the Thibeau decision that
"[s]tops [ (FN14)] provoke constitutional scrutiny
because they encumber [a person's] freedom of movement. Pursuit that appears designed to effect [422 Mass. 789] a stop is no less intrusive than a stop itself." (FN15) Id. at 764, 429 N.E.2d 1009. Framed slightly differently, a pursuit,
which, objectively considered, indicates to a person that he would not be free
to leave the area (or to remain there) without first responding to a police
officer's inquiry, is the functional equivalent of a seizure, in the sense that
the person being pursued is plainly the object of an official assertion of
authority, which does not intend to be denied, and which infringes considerably
on the person's freedom of action. See 4
W.R. LaFave, Search and Seizure § 9.3(d), at 127‑128 (3d ed. 1996). On the basis of art. 14, we adhere to the
view expressed in the Thibeau
decision, which is shared by the New York Court of Appeals, see People v. Martinez, 80 N.Y.2d 444, 446‑447,
591 N.Y.S.2d 823, 606 N.E.2d 951 (1992), that unless an officer has a
reasonable suspicion to justify this type of pursuit, any evidence obtained as
a result of it must be suppressed.
"Were the rule otherwise, the police could turn a hunch into a
reasonable suspicion by inducing the conduct [flight or the abandonment of
potential evidence] justifying the suspicion." Commonwealth v. Thibeau, supra
at 764, 429 N.E.2d 1009.
[3]
3. We turn now to the remaining related
issues presented in this case: when the
pursuit of the defendant began and whether, at that point, the officers had an
objectively reasonable suspicion of criminal activity, based on specific and
articulable facts, to justify that pursuit.
See Terry v. Ohio, 392 U.S. 1,
21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).
Agreeing
that not every encounter between a law enforcement official and a member of the
public constitutes an intrusion of constitutional dimensions requiring
justification, see Commonwealth v. Leonard,
422 Mass. 504, 663 N.E.2d 828 (1996); Commonwealth v. Sanchez, 403 Mass. 640,
644, 531 N.E.2d 1256 (1988), the defendant in his brief does not dispute the
judge's conclusion that no Terry ‑type
stop occurred when Officer Murphy initially asked the defendant and his
companion to "hold up a minute."
See [422 Mass. 790]
Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979 (1991) (police
officer did not seize defendant by approaching him, identifying himself as
police officer and asking defendant to take his hands out of his pockets). See also
Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 561, 633 N.E.2d 1058
(1994) (no seizure when defendant, who left scene as unmarked cruiser
approached, evidently felt free to leave).
The defendant contends that pursuit in a constitutional sense commenced
when the officers, having left the trooper behind with the defendant's
companion, followed the defendant on his bicycle, and further contends that the
police officers lacked reasonable suspicion at that point for their focus on
the defendant. We need not decide
whether pursuit commenced when the officers drove after the defendant, or (a
more likely alternative) when Officer Murphy made his second request to the defendant
to stop, because we conclude that, once it was known that the defendant's
companion was not carrying a firearm, the officers had reasonable suspicion to
stop the defendant for the purpose of conducting a threshold inquiry.
[4][5] In
determining whether an officer acts reasonably in initiating a threshold, or
investigatory, stop, we view the circumstances as a whole, see Commonwealth v. Williams, 422 Mass.
111, 116, 661 N.E.2d 617 (1996), and consider the "specific reasonable
inferences which [the officer] is entitled to draw from the facts in light of
his experience." Terry v. Ohio, supra at 27, 88 S.Ct. at
1883. "Reasonable suspicion depends
upon the content of the information possessed and its degree of
reliability." United States v. Bold, 19 F.3d 99, 102
(2d Cir.1994). Tips from informants must
be evaluated by reference to their reliability and the probable basis of
knowledge of the informant. See K.B.
Smith, Criminal Practice and Procedure § 306 (1983 & Supp.1996). When a tip, such as the one received here,
concerns the possession of a firearm, it deserves the immediate attention of
law enforcement officials. See Commonwealth v. Fraser, supra at 544‑545
n. 4, 573 N.E.2d 979.
The police
officers, who knew from personal experience that they were in a very high crime
area in which crimes often had been committed with firearms, could have
inferred that the young woman (or women, see note 3, supra ) who shouted at them had personal knowledge that the
defendant's companion had a gun. See Commonwealth v. Anderson, 366 Mass.
394, 399, 318 N.E.2d 834 (1974). The
information was provided by [422
Mass. 791] bystanders who could have
been identified, thus reducing to some extent the likelihood of
fabrication. See Commonwealth v. Atchue, 393 Mass. 343, 347‑349, 471 N.E.2d
91 (1984). As the judge observed, the
police officers briefly lost sight of the two bicyclists after the bicyclists
(and one of the police officers) had heard the shouted comment. At this point, as the judge found, the
defendant's companion would have had an opportunity, as well as a reason, to
hand a gun off to his companion. Once
the trooper's frisk of the companion established that he did not possess a
weapon, the police officers reasonably could have suspected that the gun was in
the defendant's possession. The defendant's
failure to stop at Officer Murphy's request, and his accelerated pace as he
drew away from the officers, could have contributed to that suspicion. See
Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990); Commonwealth v. Sanchez, supra at 644‑645,
531 N.E.2d 1256. Particularly when a
police officer receives information concerning an individual with a gun, the
"test for determining reasonable suspicion should include consideration of
the possibility of the possession of a gun, and the government's need for
prompt investigation." United States v. Bold, supra at 104. The facts known to the officers were
sufficient to justify their approach to the defendant for a threshold inquiry.
Judgments affirmed.
(FN1.) The facts, as found by the judge, are
fully supported in the transcript of the hearing on the defendant's motion to
suppress, and the defendant does not argue otherwise. See
Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990). "[W]e make our own independent determination
on the correctness of the judge's 'application of constitutional principles to
the facts as found.' " Commonwealth v. Haas, 373 Mass. 545, 550,
369 N.E.2d 692 (1977), S.C., 398
Mass. 806, 501 N.E.2d 1154 (1986), quoting
Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424
(1977).
(FN2.)
At the hearing on the motion to suppress, one of the officers testified that he
had made arrests in the area for "[j]ust about every felony [he could]
think of ... for armed robbery, possession of firearms, drug arrests, rapes,
robberies." The other officer
testified that he was familiar with the area as a "very high crime
area," and that he had made arrests for "numerous felon[ies] ... drug
arrests, gun arrests, shootings, stolen cars."
(FN3.)
The judge's findings indicate that one of the girls yelled information to the
police about a gun. The police officers'
testimony at the hearing on the motion to suppress seems to indicate that more
than one person in the group attempted to transmit the information to the
police, and that the statement was made more than once.
(FN4.)
At the hearing on the motion to suppress, the police officer who had been
driving the automobile speculated that members of the group in front of the
sandwich shop would have recognized a Crown Victoria automobile occupied by
three white men as an unmarked police vehicle.
In addition, he noted that the group might have seen the automobile pull
out of the police station parking lot.
(FN5.)
The only issue we are concerned with in this case is whether a seizure occurs
when a person declines to submit to an official show of authority by engaging
in flight. Of course, a person also may
be seized in a constitutional sense when, having been accosted by law
enforcement officials, he remains and responds to a police officer's
inquiries. In those circumstances, the
question of seizure turns in large part on whether a reasonable person would
have felt free to terminate the interview with law enforcement officials. See
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).
(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 law."
(FN7.) We reject the Commonwealth's contention
that the defendant has failed to preserve the art. 14 issue. The judge plainly considered the question of
art. 14 to be before him, since he addressed that point in his memorandum of
decision. The defendant's brief contains
an adequate, if not exhaustive, argument on the point, with citation to
relevant authority. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
See also Commonwealth v. Williams,
422 Mass. 111, 115 n. 9, 661 N.E.2d 617 (1996) (when defendant cites State and
Federal cases in support of claim, court usually analyzes case under both art.
14 and Fourth Amendment).
(FN8.) The definition of the term
"seizure" has been phrased in various ways. In
Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d
889 (1968), the United States Supreme Court defined "seizure" as the
situation "when [an] officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen." In
Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d
389 (1991), discussing seizure when circumstances other than the presence of
law enforcement officials constrain a person's freedom of movement, the Court
held that the "appropriate inquiry is whether a reasonable person would
feel free to decline the officers' requests [for information] or otherwise
terminate the encounter."
(FN9.)
See, e.g., Bacigal, The Right of the People to be Secure, 82 Ky. L.J. 145
(1993); Clancy, The Future of Fourth
Amendment Seizure Analysis After Hodari
D. and Bostick, 28 Am.Crim.L.Rev.
799, 834‑842 (1991); Green,
"Power, Not Reason": Justice
Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990
Term, 70 N.C.L.Rev. 373, 400‑404 (1992);
4 W.R. LaFave, Search and Seizure § 9.3(d) (3d ed. 1996).
(FN10.) "It is by now firmly established
that, in some circumstances, art. 14 affords greater protection against
arbitrary government action than do the cognate provisions of the Fourth
Amendment." Jenkins v. Chief Justice of the Dist. Court
Dep't, 416 Mass. 221, 229 n. 16, 619 N.E.2d 324 (1993).
(FN11.) Noting that Nebraska has no history of
affording individuals greater rights on the basis of the State Constitution
than are afforded by the United States Constitution, the Court of Appeals of
Nebraska adopted the principles in the
Hodari D. decision for the purposes of the Nebraska Constitution. See
State v. Cronin, 2 Neb.App. 368, 373, 509 N.W.2d 673 (1993). See also
State v. West, 119 N.C.App. 562, 566, 459 S.E.2d 55 (1995).
(FN12.) In his dissenting opinion, Justice
Stevens took issue with the majority's explanation of the common law as
incomplete, noting that "the facts of this case ... describe ... an
unlawful attempt to take a presumptively innocent person into custody," California v. Hodari D., 499 U.S. 621,
631, 111 S.Ct. 1547, 1553, 113 L.Ed.2d 690 (1991) (Stevens, J., dissenting),
which was unlawful at common law. Thus,
assuming that the scope of Fourth Amendment protections should be defined by
reference to the common law, the proper reference point was the common law of
attempted arrest rather than the common law of arrest. Id. at 631‑632, 111
S.Ct. at 1553‑1554.
(FN13.) Nor, prior to the Hodari D. decision, had it been thought that the United States
Supreme Court regarded the common law as the decisive source in the search for
the meaning of the words in the Fourth Amendment. See
California v. Hodari D., supra at 629, 111 S.Ct. at 1552 (Stevens, J.,
dissenting); Katz v. United States, 389 U.S. 347, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967).
(FN14.) A stop is, of course, a form of
seizure in the constitutional sense, see, e.g., Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243
(1996), predicated on Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.
(FN15.) The basis for the decision in Commonwealth v. Thibeau, 384 Mass. 762,
429 N.E.2d 1009 (1981)‑‑Fourth Amendment or art. 14‑‑was
not specified. More recently, without
extended discussion, we stated that "[p]ursuit for constitutional purposes
began when the officers left the police cruiser and began to chase the suspects
on foot. At this time, the police were
attempting to stop the defendant to effectuate a threshold inquiry."
Commonwealth v. Williams, supra at 117, 661 N.E.2d 617. We went on to observe that the police had
the requisite reasonable suspicion before the pursuit began, thus implicitly
adhering to the view expressed in the
Thibeau decision that, in many circumstances, a pursuit is a seizure for
constitutional purposes.