34 N.E.3d 772
Mass. App. Ct.2015Background
- At ~2:00 A.M. in Dorchester, two plain‑clothes Boston officers in an unmarked cruiser observed and followed Evans while he walked alone; they had no specific dispatch or prior knowledge about him.
- Evans turned onto a side street where he lived; officers pulled up, asked where he was going, and Officer Dodd directed him to remove his hands from his pockets after noting nervousness.
- Both officers exited the vehicle, approached Evans on the sidewalk, displayed badges, and continued questioning, including asking what was in his mouth.
- Evans opened his mouth; Officer Dodd used a flashlight and observed a bag appearing to contain crack cocaine wedged between Evans’s tongue and cheek.
- When Evans refused to spit and appeared to try to swallow it, Officer Dodd grabbed his jaw and induced him to spit the bag out; Evans was arrested and later summarily released.
- The motion judge suppressed the cocaine; the Appeals Court affirmed, finding Evans had been seized before reasonable suspicion existed and suppressing the evidence as fruit of the poisonous tree.
Issues
| Issue | Commonwealth's Argument | Evans's Argument | Held |
|---|---|---|---|
| Whether a seizure occurred before the officer used a flashlight to view inside Evans’s mouth | No — encounter was consensual until officer ordered Evans to spit (seizure occurred only when ordering spit) | Yes — interaction had escalated into a seizure by the time officer asked what was in his mouth | Seizure occurred when officer asked what was in Evans’s mouth (consensual encounter had matured into a seizure) |
| Whether reasonable suspicion supported the seizure at that time | (Not argued on appeal) | No — only nervousness and apparent something in mouth, which are insufficient | No reasonable suspicion existed when the seizure occurred; issue waived by Commonwealth but also rejected on merits |
| Whether the observed bag was admissible as plain view after Evans opened his mouth | Officer: opening mouth voluntarily placed bag in plain view, permitting flashlight examination | Evans: the seizure preceded opening mouth, so plain view does not cure illegality | Plain view argument fails because seizure without reasonable suspicion occurred before observation; evidence suppressed |
| Whether force used (jaw pressure) independently justified suppression | Commonwealth did not contest below; argued not reached | Evans argued jaw pressure was impermissible force and could independently require suppression | Court did not decide this issue (affirmed on other grounds) |
Key Cases Cited
- Commonwealth v. Lyles, 453 Mass. 811 (2009) (governing standard of review and seizure analysis under art. 14)
- Commonwealth v. Barros, 435 Mass. 171 (2001) (totality of circumstances test for when consensual encounter becomes a seizure)
- United States v. Mendenhall, 446 U.S. 544 (1980) (objective test for seizure — would a reasonable person feel free to leave)
- Michigan v. Chesternut, 486 U.S. 567 (1988) (assess coercive effect of police conduct as a whole)
- Commonwealth v. Lopez, 451 Mass. 608 (2008) (same‑time seizure inquiry and compelled response)
- Commonwealth v. Brown, 75 Mass. App. Ct. 528 (2009) (nervousness alone insufficient for reasonable suspicion)
- Commonwealth v. Houle, 35 Mass. App. Ct. 474 (1993) (appearance of something in mouth consistent with innocuous explanations)
- Commonwealth v. Sergienko, 399 Mass. 291 (1987) (plain‑view flashlight use in daytime context)
- Commonwealth v. Knowles, 451 Mass. 91 (2008) (plain‑view doctrine does not cure prior unlawful seizure)
- Commonwealth v. Damiano, 444 Mass. 444 (2005) (fruit‑of‑the‑poisonous‑tree suppression principle)