133 N.E.3d 258
Mass.2019Background
- Police received anonymous tip of a firearm placed under the front seat of a black car with four occupants in a high‑crime Holyoke area; officers arrived within minutes and found a dark green Honda with two occupants.
- The defendant (passenger) exited, adjusted his waistband, walked toward bushes off the sidewalk, made eye contact with an officer who called, “Hey, come here for a second,” and then immediately ran while clutching his waistband.
- An officer ordered the defendant to stop, chased and apprehended him as he attempted to scale a chain‑link fence; the defendant had thrown a plastic bag over the fence onto a nearby pedestrian walkway.
- Police recovered 129 small wax baggies (samples tested positive for heroin); some baggies were at the defendant’s feet and one plastic bag was on the walkway.
- At trial the Superior Court denied the defendant’s motion to suppress and convicted him of possession with intent to distribute heroin and of a § 32J park‑zone violation; on appeal the SJC affirmed the drug conviction but reversed and vacated the § 32J conviction and granted relief on the park‑zone charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did a seizure occur? | Seizure occurred when officer called to defendant to come over. | Seizure occurred later—when officer ordered him to stop and chased him. | No seizure at the first call; seizure occurred when officer ordered stop and pursued. |
| Did officer have reasonable suspicion to stop/arrest? | Officer had reasonable suspicion based on anonymous tip, waistband adjustment, movement toward bushes in a high‑crime area, and flight. | Tip and waistband adjustment were innocuous; flight alone insufficient. | Viewing all factors together, reasonable suspicion existed at the time of the seizure. |
| Does G. L. c. 94C, § 32J require proof that defendant knew park boundaries (mens rea)? | § 32J requires knowledge of park boundaries (defense available for park zones). | No additional scienter required; intent to commit the underlying drug crime suffices. | § 32J does not require knowledge of park boundaries; intent for the underlying drug offense is enough. |
| Is the pedestrian walkway a “park” under § 32J, and was counsel ineffective for failing to challenge variance between indictment (Ely Court Park) and proof (walkway)? | Commonwealth argued the walkway was parkland maintained by city parks and jury could find it a park. | Defendant argued walkway is not Ely Court Park; counsel should have challenged variance/insufficiency and moved to dismiss. | Whether land is a “park” is a question for the factfinder; but counsel was ineffective for failing to challenge the indictment/proof variance—conviction under § 32J vacated and judgment entered for defendant. |
Key Cases Cited
- Commonwealth v. Barros, 435 Mass. 171 (2001) (seizure depends on officers objective show of authority that a reasonable person would understand as enforceable)
- Commonwealth v. Jones‑Pannell, 472 Mass. 429 (2015) (persistence and subsequent command after initial request can effect a seizure)
- Commonwealth v. DePeiza, 449 Mass. 367 (2007) (furtive or nervous movements do not alone supply reasonable suspicion but may be considered with other factors)
- Commonwealth v. Warren, 475 Mass. 530 (2016) (flight by itself is insufficient for individualized reasonable suspicion)
- Commonwealth v. Roucoulet, 413 Mass. 647 (1992) (§ 32J fixes location element by its terms; once underlying offense is proved, measuring proximity establishes the zone)
- Commonwealth v. Peterson, 476 Mass. 163 (2017) (legislative purpose of § 32J is to protect children by creating drug‑free zones)
- Commonwealth v. Merry, 453 Mass. 653 (2009) (where evidence at trial is legally insufficient, defendant is entitled to dismissal to avoid double jeopardy)