COMMONWEALTH vs. LEON BORGES.
Supreme Judicial Court of Massachusetts
August 28, 1985.
395 Mass. 788
Bristol. May 6, 1985. - August 28, 1985. Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O‘CONNOR, JJ.
When police officers who had stopped a person suspected of selling heroin ordered him to remove his shoes in order to prevent his flight while they conducted further inquiry, they exceeded the bounds of an investigatory stop, and probable cause for detaining the defendant was required. [790-794] HENNESSEY, C.J., concurring. NOLAN, J., dissenting.
A statement made by an unknown informant to officers in a police cruiser, telling the officers that she had recently been in a bar with a man named Leon, who was selling heroin, and giving a detailed description of the man and his clothing, did not give the officers probable cause to arrest a man matching the informant‘s description whom they saw in the neighborhood of the bar a short time later. [794-796] HENNESSEY, C.J., concurring. NOLAN, J., dissenting.
Conduct by a defendant in attempting to flee from two police officers who had detained him and in attempting to swallow eight bags of heroin taken from his pocket did not dissipate the taint of the initial illegal detention by police officers without probable cause, and thus suppression of the heroin as the fruit of an illegal arrest was required. [796-797] HENNESSEY, C.J., concurring. NOLAN, J., dissenting.
INDICTMENT found and returned in the Superior Court Department on September 28, 1983.
A motion to suppress evidence was heard by George Jacobs, J.
The case was reported by Wilkins, J., following his allowance of the defendant‘s motion for an interlocutory appeal in the Supreme Judicial Court for the county of Suffolk.
Louis D. Coffin for the defendant.
Dana A. Curhan, Assistant District Attorney (Phillip L. Weiner, Assistant District Attorney, with him) for the Commonwealth.
The facts, as found by the motion judge, are these. At approximately 5:45 p.m. on September 3, 1983, on a main thoroughfare in New Bedford, a pedestrian hailed a police cruiser. The pedestrian told the two police officers in the cruiser that she wanted to speak with them, but not on the main thoroughfare. The officers and the pedestrian met minutes later on a nearby side street. The pedestrian then informed the officers that she recently had been with a person named Leon in a bar on Purchase Street and that Leon had eight bags of heroin for sale at $40 a bag. She stated that the bags of heroin were in Leon‘s left pants pocket, and she described in detail both Leon and his clothing. The conversation lasted approximately five minutes. The police officers did not know the identity of the pedestrian; neither one had received information from her before.
The officers then radioed a second cruiser and arranged to meet those officers in a nearby parking lot. The second pair of officers were to act as back-up while the first pair went to the area of the bar. The officers then drove toward the bar looking for the defendant. One of the officers had known the defendant for many years and had assumed that the pedestrian had described the defendant when she spoke of “Leon.” The officer had seen the defendant in the area approximately five minutes before the conversation with the pedestrian. The defendant and his clothing matched the description given by the pedestrian.
Upon approaching a magazine store located 150 feet from the bar described by the pedestrian, the officers saw the defendant standing with several other people in front of the store. By the time the officers parked the cruiser in front of the store, the defendant had gone inside the store. The officers entered the
The motion judge ruled that the defendant was illegally seized when the police officers asked him to step out of the store and to remove his shoes. The judge reasoned that, although there may have been reasonable articulable facts to justify a brief detention of the defendant to conduct a threshold inquiry, see Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Silva, 366 Mass. 402, 405 (1974), the officers did not have probable cause to seize the defendant. The judge concluded, however, that, despite the fact that an initial, illegal seizure occurred, intervening events, sufficiently detached from the illegal seizure, established probable cause to arrest the defendant, and therefore the seizure of the evidence was proper.
We conclude that, although the officers may have had a reasonable suspicion that the defendant had committed a crime which would warrant an investigatory stop, the initial seizure of the defendant, i.e., the officer‘s request that the defendant remove his shoes, exceeded the scope of investigatory stops outlined in Terry, supra, and its progeny. Moreover, the initial seizure was unsupported by probable cause. Thus, the seizure violated the defendant‘s rights under
At the outset we note that the officer‘s request that the defendant remove his shoes clearly constituted a seizure within the meaning of art. 14.2 An objective standard is used to determine when a seizure has occurred: “a person has been ‘seized‘... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). See United States v. Hensley, 469 U.S. 221, 226 (1985) (“stopping a car and detaining its occupants constitutes a seizure“); Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216-217 (1984) (seizure occurs when circumstances of an encounter are so intimidating that a reasonable person would believe that he was not free to leave); Brown v. Texas, 443 U.S. 47, 50 (1979) (physical detention of defendant to determine identity implicates Fourth Amendment rights); Terry, supra at 16 (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person“). Cf. Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974).
A recent United States Supreme Court case contemplates an objective standard within an analogous factual pattern. In Florida v. Royer, 460 U.S. 491 (1983), detectives approached the defendant in an airport terminal, identified themselves as narcotics officers, and asked the defendant to accompany them to a small office. The detectives retained the defendant‘s airline ticket and identification throughout the encounter and obtained, and had possession of, the defendant‘s luggage. The Court held that such action was a seizure for purposes of the Fourth
We turn now to the question whether the intrusiveness of the seizure was proportional to the degree of suspicion that prompted the intrusion. See Commonwealth v. Bottari, supra. Terry held that to be valid “[t]he scope of the [seizure] must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, supra at 19, quoting Warden v. Hayden, 387 U.S. 294, 310 (1967).4 Courts must inquire “whether the officer‘s action... was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, supra at 20.
In Florida v. Royer, supra, the Court also addressed the question of the proper scope of a stop. A majority of the Royer Court believed that there was reasonable suspicion for a stop. A plurality, however, ruled that the limits of a Terry-type stop had been exceeded. The detectives retained possession of the defendant‘s ticket and identification, and obtained possession of his luggage. The Court stated: “The scope of the detention must be carefully tailored to its underlying justification.... [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer‘s suspicion in a short period of time.” Royer, supra at 500.5
at 794, such a use of force was inconsistent in nature and degree with that authorized by an investigatory stop. Our opinion in Commonwealth v. Bottari, supra, illustrates, also, that, as matter of State law, use of excessive force in detaining a suspect may raise the nature of a seizure from an investigatory stop to the level of an arrest requiring probable cause. See Commonwealth v. Wallace, 346 Mass. 9, 16 (1963); Commonwealth v. Holmes, 344 Mass. 524, 526 (1962).
Thus, Terry and Royer state a “principle of proportionality.” See United States v. $84,000 U.S. Currency, 717 F.2d 1090, 1104 (7th Cir. 1983), cert. denied sub nom. Holmes v. United States, 469 U.S. 836 (1984); United States v. Berryman, 717 F.2d 651, 657 (1st Cir. 1983), cert. denied, 465 U.S. 1100 (1984). The degree of intrusiveness on a citizen‘s personal security, including considerations of time, space, and force, must be proportional to the degree of suspicion that prompted the intrusion. See Bottari, supra.
We believe that the officers exceeded the bounds of an investigatory stop when they requested that the defendant remove his shoes. Unlike Adams v. Williams, 407 U.S. 143 (1972), this seizure was not a limited intrusion designed to ensure the officers’ safety. There was no evidence that the officers feared for their safety in asking the defendant to remove his shoes. While, on the basis of the informant‘s information, the officer might have been justified in stopping the defendant and inquiring about the bulge in his pants pocket, the officer requested that the defendant remove his shoes before he noticed the bulge. In short, the means used by these officers to conduct their investigatory inquiry raised the seizure to the level of an arrest. Thus, probable cause was required to justify this type of seizure.
We address the question whether there was probable cause to support the seizure. Under Commonwealth v. Upton, 394 Mass. 363 (1985), for an arrest to comport with art. 14, information known to police officers at the time of the arrest must satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969): first, a “basis of knowledge” of the informant — the particular means by which he came by the information — must be shown; and second, facts establishing either the general “veracity” of the informant or the specific “reliability” of his statement in the particular case must be provided. In the present case, the
Having concluded that the officers exceeded the limited scope of a proper investigatory inquiry and that they acted without probable cause, we last consider whether the evidence seized must be suppressed as the fruit of an unlawful seizure. See Commonwealth v. Loughlin, 385 Mass. 60, 63 (1982). We disagree with the judge‘s ruling that independent and intervening acts supplied the police officers with probable cause to arrest the defendant. Because the initial stop was improper and the subsequent actions occurred as an immediate and direct result of that illegality, the Commonwealth is not entitled to introduce in evidence the fruit of the unlawful act.
A sufficient causal connection to view evidence as the fruit of an illegal act is not established merely because “but for” the illegal police conduct the defendant would not have responded as he did. Commonwealth v. King, 389 Mass. 233, 245 (1983). Commonwealth v. Saia, 372 Mass. 53, 58 (1977). Accord Dunaway v. New York, 442 U.S. 200, 217 (1979). On the other hand, “an act by a defendant, which may in some sense be considered ‘voluntary,’ [will not] necessarily break the causal chain.” United States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1982), cert. denied, 461 U.S. 933 (1983). In determining whether the connection between an illegal arrest and a subsequent arrest or search has become so attenuated as to dissipate the taint of the illegality, we consider the following: (1) the temporal proximity of the arrest to the defendant‘s re-
The defendant attempted to flee moments after the illegal arrest. The struggle and attempted disposal of the evidence quickly followed. Thus, there is a close temporal proximity between the illegal arrest and the defendant‘s response.6 Moreover, the nature of the defendant‘s intervening actions was insufficient to establish probable cause. Generally, flight alone does not establish probable cause for a “second” arrest. See Commonwealth v. Thibeau, 384 Mass. 762 (1981); Commonwealth v. Crowley, 13 Mass. App. Ct. 915 (1982); United States v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976); United States v. Ogilvie, 527 F.2d 330, 331-332 (9th Cir. 1975). But see United States v. Garcia, 516 F.2d 318, 319 (9th Cir.), cert. denied sub nom. Martinez-Lopez v. United States, 423 U.S. 934 (1975). Compare United States v. Nooks, 446 F.2d 1283, 1287-1288 (5th Cir.), cert. denied sub nom. Hughes v. United States, 404 U.S. 945 (1971). Nor does the attempted disposal of evidence constitute an independent, intervening act sufficient to justify a subsequent arrest where the disposal is in direct and immediate response to the illegal police action. See United States v. Beck, 602 F.2d 726, 729-730 (5th Cir. 1979); Massachusetts v. Painten, 368 F.2d 142, 144 (1st Cir. 1966); Hobson v. United States, 226 F.2d 890, 894 (8th Cir. 1955). Although, in the present case, the defendant attempted both to flee and to dispose of evidence, we believe that because of the close temporal proximity of these events to each other and to the illegal act of the police officers, they cannot be considered independent and intervening acts sufficient to establish probable cause.
The judge relied on Commonwealth v. King, supra, in ruling that the defendant‘s independent and intervening acts gave rise
There is no indication here that the police officers undertook the arrest with consideration of the defendant‘s intervening acts; only one crime, possession of heroin, motivated the officers’ actions throughout the incident. See Painten, supra at 143. Apparently, the police officers did not arrest the defendant for assaulting them. See
In sum, while intervening acts occurred, as in King, we cannot say that these acts were sufficiently independent, in nature and temporal proximity from the primary illegality to justify the defendant‘s subsequent arrest by the officers. We reverse the order denying the defendant‘s motion to suppress.
So ordered.
HENNESSEY, C.J. (concurring). As frequently occurs in search and seizure cases, we are dealing here with line-drawing of a difficult nature. Necessarily so, because of the subtle balance that we must preserve between law enforcement and the protection of individual privacy. A majority of the court, not counting my contribution, says the evidence in this case must be excluded. The case is close enough to the line so that I bow to the majority‘s wisdom, but not without doubt on my part. First, I assume that the court is approaching the issue of the informant‘s reliability in light of this court‘s recent emphasis that the dual test of Aguilar-Spinelli still has vitality under Massachusetts law. In that light, I am troubled by the court‘s
I write this brief concurrence with the hope that the court will in the future give continued credibility to the Draper principle, because that approach, carefully applied, is both in the public interest, and consistent with the spirit of Aguilar-Spinelli. I add only that I do not agree with the dissenting opinion in this case, which relies, in part, on Terry v. Ohio, 392 U.S. 1 (1968). Clearly the police here (and also in Commonwealth v. Bottari, ante, which is published simultaneously with this opinion), were detaining the suspect for purposes of making a search for contraband. They were not merely, for their own protection, conducting a pat-down for weapons while they questioned a suspicious person. The requisite for a search and seizure in this Commonwealth is probable cause, and not the “articulable suspicion” of Terry.
NOLAN, J. (dissenting). I dissent. If ever a fact pattern came within the boundaries of Terry v. Ohio, 392 U.S. 1 (1968), it is this case. If ever police officers had the right (if not the obligation) to stop and frisk a person, it was here, armed as they were with specific information as to name, place, and particulars of the location of the drugs (“left pants pocket“). One police officer, the judge found, had known Borges for many years. In Terry, supra at 5-6, it should be recalled, the detective was not acquainted with either man suspected of
This is but another example of the extent to which the exclusionary rule has led to a travesty of good order and common sense.
Notes
In Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev‘d on other grounds, 463 U.S. 239 (1983), we had occasion to define an “arrest“: “To constitute an arrest, ‘[1] there must be an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.‘... ‘[T]he test must be not what the defendant... thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant‘s shoes.‘” Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967), quoting from Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947), and United States v. McKethan, 247 F. Supp. 324, 328 (D.D.C. 1965). Use of the officer‘s subjective intention as a criterion has been rejected in cases where the officer‘s conduct is inconsistent with a mere momentary stopping. 2 W. LaFave, Search and Seizure § 5.1, at 217 (1978 & Supp. 1985). See Avery, supra. Some courts believe that an officer‘s intentions at the time of a stop are irrelevant in determining whether an arrest occurred. See, e.g., United States v. Danielson, 728 F.2d 1143, 1146 (8th Cir.), cert. denied, 469 U.S. 919 (1984).
What is significant, however, about Massachusetts Gen. Hosp., supra, is that we held that an arrest occurred when the police officers used extreme force to apprehend the defendant. As will be discussed more fully, infra