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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. Thinh Van Cao, 419
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Brownlow M. Speer, Committee for Public Counsel
Services,
Michael Adam Chinman, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and
GREANEY, JJ.
LIACOS, Chief Justice.
The
defendant was convicted on
[1] We
recite the relevant facts found by the judge who heard the motion to
suppress. These findings are
"binding in the absence of clear error ... and [we] view with particular
respect the conclusions of law which are based on them" (citation omitted).
Commonwealth v. Correia, 381
On January
6, 1991, several armed men entered the Lotus Flower Restaurant in Framingham,
after closing, and robbed the employees.
One of the employees, Jerry Chi, saw the face of the first robber as he
entered the restaurant. The entrance hallway
was well lit and Chi was near the front door when the man entered. Chi was able to describe the man's build,
facial features, and clothing. (FN1)
On January
31, a few weeks after the robbery, Chi was shown an array of about 100
photographs by Boston police. [419 Mass. 385] Chi chose a photograph of the defendant from the array and identified him as the robber he
saw enter the restaurant. (FN2)
The
photograph from which Chi identified the defendant was taken by a Boston police
detective in November or December of 1990, some months before the robbery,
pursuant to a Boston police department policy requiring police in Chinatown to
conduct "Field Interrogation Observations" of young men they suspect
may be involved with Asian gangs. The
motion judge found: "Under this
Field Interrogation Observation (FIO) procedure, the police question suspicious
looking Asian males asking them to identify themselves, to give their date of
birth and a physical description (including height, weight and tatoos), and to
take their photograph with a Polaroid camera." The motion judge also found that during an
FIO, the individuals approached by the police officer(s) are "free to go
and to refuse having their picture taken." As to this defendant, the judge found further: "The police did not ... give the
defendant any reason to believe that he was not free to go, and they asked his
permission before taking the picture.
Under the totality of the circumstances, a reasonable person would have
believed that he was free to leave and to refuse to be photographed. Therefore, the defendant's constitutional
rights were not violated."
The
evidence before the judge warrants his findings. Boston police Detective Waiman Lee testified
that while on foot patrol in Chinatown in November or December, 1990, he
conducted an FIO of the defendant and three of his friends, all youths. Lee testified that he conducts FIOs when he
suspects someone of being a member of an Asian gang. Lee, dressed in full uniform, approached the
group as they were walking together in a parking lot and asked them several [419 Mass. 386] questions including their names, dates of birth, addresses, and
physical descriptions. Lee testified
that the youths stopped when he approached them and answered the questions. (FN3)
After he asked the questions Lee performed an outstanding warrant check
on the youths. (FN4) The process of questioning and checking for
warrants took "no more than 5 minutes." Lee testified that after he had checked for
warrants, Detective John Bean came on the scene. At Lee's request, Bean retrieved a Polaroid
camera from his car. When Bean returned
with the camera he asked the youths, including the defendant, "you don't
mind if we take a picture of you, right?," to which the defendant replied,
"No, I didn't do anything wrong, go ahead." Lee testified that at no time during these
few minutes did the detectives indicate to the group that they were not free to
leave. The defendant spoke with his
friends during the encounter and appeared to be under no physical distress nor
did he indicate that he wanted to leave.
[2] The
question of what constitutes a "seizure" triggering an individual's
constitutional rights has been the subject of much case law and commentary over
the years. The United States Supreme
Court recently had occasion to address the issue once again in California v. Hodari D., 499 U.S. 621,
111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
In Hodari D., the Court
revised its previous definition of seizure as a situation between a law
enforcement officer and an individual in which, under the totality of the
circumstances, a reasonable person would not have felt free to terminate the
encounter and leave. See 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).
See also Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d
247 (1984). The Hodari D. Court explained that whether a reasonable person would feel free to leave was only part of the
seizure equation. California v. Hodari D., supra 499 U.S.
at 628, 111 S.Ct. at 1551. In addition
to a show of authority [419 Mass.
387] which would indicate to a
reasonable person that he was not free to leave, the Court held that there can
be no seizure until the individual in question submits to that show of
authority. Id. at 628‑629, 111 S.Ct. at 1551‑1552. (FN5)
Since the Hodari D. decision, Massachusetts
courts have not been faced with a case that has required us to interpret art.
14 of the Massachusetts Constitution in light of the Hodari D. holding.
(FN6) Massachusetts courts have
adhered to the test set forth in the
Mendenhall‑ Royer line of cases decided prior to Hodari D. as the proper analysis whether a seizure has occurred
under article 14 to the Massachusetts Constitution, i.e., "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 United States v. Mendenhall, 446 U.S.
544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See
Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979 (1991);
Commonwealth v. Sanchez, 403 Mass. 640, 643‑644, 531 N.E.2d
1256 (1988). See also Commonwealth v. Harkess, 35
Mass.App.Ct. 626, 628‑632, 624 N.E.2d 581 (1993).
[3][4]
Because both the Federal and the Massachusetts Constitutions require some
objective indicia that a reasonable person would not have felt free to
terminate the encounter with the law enforcement officer before there can be a
seizure, we analyze the facts of the instant case under that standard. Cases applying a standard such as the one we
apply here are necessarily fact‑specific and thus the instant case can be
properly decided only on a careful examination of the circumstances surrounding
the police‑citizen encounter. In
the case at bar, Detective Lee approached the defendant and his friends in [419 Mass. 388] uniform and asked them several questions concerning their
identities. All of the information given
was recorded by Lee on a small notecard as was his normal practice when
conducting FIOs. There was no evidence
that Lee ordered the group to answer his questions or otherwise indicated that
they could not terminate the encounter.
The FIO was conducted in public, while the defendant was walking with
friends in a parking lot, not while the defendant was in a confined space or in
a car. Lee testified that during the
encounter the defendant spoke with his friends and did not appear to be under
any physical distress nor did he indicate at any time that he wished to
leave. Under these circumstances, we
cannot say that a reasonable person would have been sufficiently intimidated so
as to feel that he or she could not terminate the encounter and walk away. Therefore, there was no seizure. (FN7)
[419 Mass. 389] The defendant argues that his case is supported by the Supreme
Court's decision in Brown v. Texas, 443 U.S. 47, 99 S.Ct.
2637, 61 L.Ed.2d 357 (1979). The
defendant is mistaken. In Brown, the defendant was approached by
officers who had no reasonable suspicion that the defendant was involved in any
criminal activity and demanded he identify himself. Id. at 48‑49, 99
S.Ct. at 2639‑2640. When Brown
refused and attempted to walk away he was frisked and then arrested. Id.
at 49, 99 S.Ct. at 2639. It is clear
that in Brown there was a seizure of
the defendant's person. Brown attempted
to terminate the encounter with the police and was detained in response. The Court did not hold that Brown was seized
prior to the officers' preventing him from walking away.
The
defendant also points to Commonwealth v.
Phillips, 413 Mass. 50, 595 N.E.2d 310 (1992), a recent case decided by
this court. In Phillips, we suppressed evidence obtained during a search
conducted pursuant to police policy which permitted the "search on
sight" of black youths in the Roxbury section of Boston suspected of gang
involvement. (FN8) The defendants in that case were approached,
searched, and placed in a police cruiser while officers searched the car they
had been driving. Id. at 52, 595 N.E.2d 310. The officers involved had neither probable
cause nor reasonable suspicion that the defendants were engaged in criminal
activity.
Id. at 55, 595 N.E.2d 310.
[419 Mass. 390] As in Brown, Phillips
involved defendants who were detained (searched and placed in police cruiser),
and thereby seized. Thus, our decision
in Phillips is inapposite. (FN9)
Last, the
defendant relies on Delaware v. Prouse,
440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). However, that case involved the stop of an
automobile without objective justification.
It is a well‑established rule that the stopping of an automobile
constitutes a seizure. Id. at 653, 99 S.Ct. at 1395.
Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1
(1980).
Commonwealth v. McGeoghegan, 389 Mass. 137, 139, 449 N.E.2d 349
(1983). 3 W. LaFave, Search and Seizure
§ 9.2(h), at 417 (2d ed. 1987).
Because
there was no seizure of the defendant's person, the photograph need not be
suppressed. Additionally, as the judge
found, there was evidence that the officers asked for and received the
defendant's permission before taking the photograph and that this consent did
not appear in any way [419 Mass. 391] to be involuntarily given. See
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973);
Commonwealth v. Harmond, 376 Mass. 557, 382 N.E.2d 203 (1978).
There was
no error. The denial of the defendant's
motion to suppress is affirmed. The
convictions are affirmed.
So ordered.
(FN1.) Chi described the man as five feet,
five inches or five feet, six inches tall, with high cheekbones and no facial
hair and said that the man did not look Vietnamese. Chi also said that the man was wearing a ski
hat and a dark jacket.
(FN2.)
Subsequent to the photographic identification, Chi identified the defendant at
a lineup and also made an in‑court identification of the defendant during
trial. The defendant does not argue in
his appeal that any of the identification procedures employed by the Boston
police were unnecessarily suggestive or conducive to mistaken identification in
violation of his right to due process of law.
See Commonwealth v. Botelho,
369 Mass. 860, 866, 343 N.E.2d 876 (1976).
(FN3.)
There was no testimony regarding the exact words spoken by Lee which led to the
group's stopping and speaking with him.
(FN4.)
There was no testimony regarding whether Lee asked the group to wait for him to
conduct the warrant check.
(FN5.)
The Court noted that a seizure is also made whenever officers use physical
force to detain an individual. California v. Hodari D., supra at 624‑625,
111 S.Ct. at 1549‑1550.
(FN6.)
This court did decide a case with facts similar to those in Hodari D. in 1981, ten years before the Supreme Court's decision.
Commonwealth v. Thibeau, 384 Mass. 762, 429 N.E.2d 1009 (1981). In
Thibeau, we held that officers may not pursue a suspect without the
reasonable suspicion required for a Terry
stop because "pursuit that appears designed to effect a stop is no less
intrusive than a stop itself." Id. at 764, 429 N.E.2d 1009.
(FN7.)
Distinguishable on their facts are cases such as: Commonwealth v. Helme, 399
Mass. 298, 503 N.E.2d 1287 (1987) (defendant seized when officer blocked
defendant's car with police car so as to prevent defendant from leaving parking
lot);
Commonwealth v. Borges, 395 Mass. 788, 793, 482 N.E.2d 314 (1985)
(defendant was seized when officer asked him to remove his shoes in order to
prevent flight); Commonwealth v. Houle, 35 Mass.App.Ct.
474, 622 N.E.2d 638 (1993) (defendant seized when officer ordered him to
"spit ... out" contents of his mouth and defendant complied);
Commonwealth v. Moore, 32 Mass.App.Ct. 924, 586 N.E.2d 41 (1992)
(defendant seized when officer felt drugs on defendant's person during
consented‑to search and struggle began).
See also Florida v. Royer, 460
U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) ( "when the
officers identified themselves as narcotics agents, told Royer that he was
suspected of transporting narcotics, and asked him to accompany them to the
police room, while retaining his ticket and driver's license and without indicating
in any way that he was free to depart, Royer was effectively
seized"). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),
the United States Supreme Court noted that "street encounters between
citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of
pleasantries or mutually useful information to hostile confrontations of armed
men involving arrests, or injuries, or loss of life." Id. at 13, 88 S.Ct. at
1875. "Obviously, not all personal
intercourse between policemen and citizens involves 'seizures' of the
person. Only when the officer, by means
of physical force or show of authority, has in some way restrained the liberty
of a citizen may we conclude that a 'seizure' has occurred." Id.
at 19 n. 16, 88 S.Ct. at 1879 n. 16.
Cases decided since Terry have
made it clear that a law enforcement officer may approach an individual and ask
the individual questions without implicating the individual's constitutional
rights. See, e.g., United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980) (no seizure where DEA agents merely approached the defendant
in airport, asked to see her identification and airline ticket, and asked her
to come to office for further questioning); Commonwealth v. Fraser, 410 Mass. 541,
573 N.E.2d 979 (1991) (officer did not seize defendant when he approached him,
identified himself as a police officer and asked him to take his hands out of
his pockets); Commonwealth v. Sanchez, 403 Mass. 640,
531 N.E.2d 1256 (1988) (defendant not seized when officer approached him at
airport, displayed his badge and asked if the defendant would talk with him).
(FN8.)
The defendant makes much of the fact that race is a determinative factor in who
the officers conducting FIOs in Chinatown target and seeks to suppress the FIO
photograph under the exclusionary rule on the ground that the FIO policy is a
"formula for absolute tyranny."
However, the issue of discrimination is not before us, and even if it
were, the proper remedy for the defendant's concerns is not the exclusionary
rule.
Terry v. Ohio, 392 U.S. 1, 13‑15, 88 S.Ct. 1868, 1875‑1877,
20 L.Ed.2d 889 (1968) (recognizing that although FIO procedures are a source of
conflict between minority youth and police officers, the exclusionary rule is
not an effective method of discouraging considerations of race in police work).
(FN9.) We note another case in which police
conducted an unconstitutional "sweep" of a high crime area in search
of a suspect, and in the process stopped and frisked the defendant without
reasonable suspicion. Commonwealth v. Cheek, 413 Mass. 492, 597
N.E.2d 1029 (1992). In Cheek, we said that we accepted the
motion judge's findings, based on the record, that the defendant was seized when
the officers approached him and asked him his name, even before they frisked
him.
Id. at 494 n. 2, 597 N.E.2d 1029.
However, unlike the instant case, the encounter in Cheek was one continuous flow of movements over the course of only
a few seconds. That fact, in combination
with our deference to the motion judge's finding that the defendant had been
seized, led to our conclusion.
We
stated in Cheek, citing Phillips: "Where there is a report of a crime in a
neighborhood which police consider to be a 'high crime area,' law enforcement
officials may not conduct a broad sweep of that neighborhood stopping
individuals who happen to live in the area and be about, hoping to apprehend a
suspect. To permit police investigative
stops under the sparse facts present in this case would be to encourage unduly
intrusive police practices." Id. at 496‑497, 597 N.E.2d
1029. We continue to adhere to this
principle. Our holding in the instant
case is based solely on the fact that, under the circumstances, the defendant
was not seized.
Since
the cases are often so fact specific, we suggest that the better practice would
be for officers conducting FIOs to inform the individuals approached that the
encounter is consensual and that they are free to leave at any time. We also suggest that the police department
develop clear guidelines for the application of the FIO procedure so that
officers are given guidance as to the permissible scope of such encounters. See
United States v. High, 921 F.2d 112, 115 (7th Cir.1990).