Commonwealth v. Allen Bolden.
22-P-0110
Mass. App. Ct.
Jun 5, 2023
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COMMONWEALTH vs. ALLEN BOLDEN.

22-P-110

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

June 5, 2023

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in (formerly known as rule 1:28, as amended by ), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel‘s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See .

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Allen Bolden, pleaded guilty to breaking and entering a building in the daytime with the intent to commit a felony, G. L. c. 266, § 18, and being a common and notorious thief, G. L. c. 266, § 40, reserving the right to challenge the denial of his motion to suppress evidence. Concluding that police had reasonable suspicion to stop the defendant and that a search of the defendant‘s backpack was justified as a search incident to arrest, we affirm.

1. Standard of review.

“In reviewing the denial of a motion to suppress, we ‘accept[] the judge‘s subsidiary findings of fact absent clear error, give[] substantial deference to the judge‘s ultimate findings and conclusions of law, but independently review[] the correctness of the judge‘s application of constitutional principles to the facts found.‘” , quoting .

2. The stop.

“To justify an investigatory stop under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights, ‘the police must have reasonable suspicion that the person has committed, is committing, or is about to commit a crime.‘” , quoting . “Reasonable suspicion ‘must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch.‘” , quoting . It “is measured by an objective standard, [considering] the totality of the facts.” , quoting .

Here, when the victim called 911 to report “someone breaking into [her] apartment,” she initially described the defendant as a white male, in his twenties, wearing a black coat, a knit hat, and a gray backpack. The victim‘s description of the defendant improved as she watched him over her surveillance camera. After telling the dispatcher “maybe he‘s actually Hispanic or African-American, it‘s hard to say . . . he has something covering his mouth . . . a scarf,” the victim described the defendant as an African-American male wearing jeans and a dark coat, and covering his mouth.

Within one minute after the defendant left the victim‘s apartment, police arrived on scene. An officer saw the defendant approximately 433 feet away from the victim‘s apartment and stopped him.1 See (reasonable suspicion supported by “the proximity of the suspects to the scene of the crime, the minor lapse of time [three minutes] between the report of the crime and [the detective‘s] observation of the suspects“). Contrast (“defendant was stopped one mile from the scene of the crime approximately twenty-five minutes after the victim‘s telephone call to the police“).

At the moment the officer stopped the defendant, the active description was that the suspect was a light skinned, Black male with a scarf over his face, wearing a dark coat, a gray backpack, and a knit hat.2 The defendant was a light skinned, Black male with a cloth over his neck, wearing a dark coat, a gray backpack, and a knit hat. This was a better and more specific match than “two black males wearing the ubiquitous and nondescriptive ‘dark clothing,’ and one black male wearing a ‘red hoodie,‘” , or “the description of the suspect as a ‘black male with a black ¾ length goose [jacket]’ [which] could have fit a large number of men,” . Although the defendant was stopped in a busy area in Boston, an officer testified that there was no one else in the immediate vicinity matching that description. See (“the police, having canvassed the area, had found no one else matching those descriptions“). In this case, “[t]he similarity of the physical description of the suspect to the defendant, the temporal and physical proximity of the defendant to the scene of the [crime], and the context of the stop gave rise to reasonable suspicion.” .

3. Search incident to lawful arrest.

“Once a custodial arrest occurs, as did here, no additional justification is required for a search of the person for weapons that otherwise might be used to resist arrest or to escape, or to discover evidence of the crime for which the arrest was made.” .3 This type of search must be limited “to the body of the person arrested and the area and items within his or her immediate possession and control at the time.” , quoting . Police “may secure the arrestee and then safely search the area within his immediate control at the moment of arrest.” . A search incident to arrest requires that the arrest be supported by “probable cause to believe that the individual arrested is committing or has committed a criminal offense.” .

Here, the search of the defendant‘s backpack was justified as a search incident to a lawful arrest. See , quoting G. L. c. 276, § 1 (“Under our law, [the officer] could have searched the backpack for the ‘fruits, instrumentalities, contraband and other evidence of the crime . . . and remov[ed] any weapons that the arrestee might use to resist arrest or effect his escape‘“). When the victim reported the breaking and entering, she saw that the defendant was “stealing [her] . . . Amazon Kindle Fire”4 and that he “took anything he could stuff into his backpack, including all of [her] quarters” and possibly her laptop. Within twenty minutes after the defendant was stopped, the victim identified the defendant based on his clothing and the backpack that he was wearing. The detective testified that, “at that point, [the defendant] was placed under arrest.” Although the police looked in the backpack before the victim identified the defendant, they did not show the contents of the backpack to the victim until after the defendant was arrested. Once police had probable cause to arrest the defendant for the breaking and entering, based on the victim‘s in-person identification, they were entitled to search his backpack for the stolen goods. See . Cf. (because officers lacked probable cause to arrest, “the subsequent search of the defendant‘s person and backpack was not justified as a search incident to a lawful arrest“). Accordingly, the search of the backpack was a valid search incident to arrest.5

Order denying motion to suppress affirmed.

By the Court (Massing, Ditkoff & Singh., JJ.6),

Clerk

Entered: June 5, 2023.

Notes

1
The officer who stopped the defendant arrived on the scene within two minutes after the defendant left the victim‘s apartment.
2
After the defendant was stopped, the dispatcher informed police that the defendant had a black pair of gloves. The absence of the gloves from the description at the time of the stop does not eliminate reasonable suspicion. See (stop supported by reasonable suspicion “with or without the information that the suspect had facial hair“).
3
The Commonwealth did not raise this ground justifying the search before the motion judge, but we “may affirm a suppression decision on any ground supported by the record, even if neither the parties nor the judge relied on it below.” .
4
The Amazon Kindle Fire is a “tablet computer and e-reader.” .
5
The defendant suggests in passing that the patfrisk of his person was unlawful, but nothing in the record suggests that any evidence to be suppressed was recovered from his person.
6
The panelists are listed in order of seniority.
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