449 Mass. 367 | Mass. | 2007
Two Boston police officers found a loaded handgun in Michael DePeiza’s jacket pocket when they pat frisked him in a late night encounter. The defendant was charged with illegal possession of a firearm and ammunition, in viola
1. Background. We recite the facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing. See Commonwealth v. Feyenord, 445 Mass. 72, 73 (2005), cert. denied, 546 U.S. 1187 (2006).
On April 27, 2005, shortly after midnight, the defendant was walking through the Dorchester section of Boston while talking on his cellular telephone. Officers John Conway and Dean Bickerton were on patrol in the neighborhood, a high crime area known for a number of incidents involving firearms. As they drove past the defendant in their unmarked vehicle he attracted their attention because of his odd way of walking. As he held his telephone to his ear with his left hand, he held his right arm stiff and straight, pressed against his right side. As part of their training at the police academy the officers had learned that this distinctive “straight arm” gait was one sign of a person carrying a firearm by pressing it against his body with the stiff arm.
The officers reversed direction and, without activating their lights or sirens, drove past the defendant a second time. As they approached the defendant again they called out to him.
2. Discussion. When reviewing a motion to suppress, we adopt the factual findings of the motion judge absent clear error. Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004), and cases cited. We “independently determine the correctness of the judge’s application of constitutional principles to the facts as found.” Id. It is the Commonwealth’s burden to demonstrate that the police officers’ stop and frisk of the defendant was within constitutional limits. Commonwealth v. Vuthy Seng, 436 Mass. 537, 550, cert. denied, 537 U.S. 942 (2002), and cases cited.
a. Investigative stop and protective frisk. Before determining whether the actions of the officers in stopping the defendant were constitutionally permissible, we must first identify the moment when the seizure occurred. See Commonwealth v. Sykes, ante 308, 314 (2007); Commonwealth v. Barros, 435 Mass. 171, 173 (2001). “[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification.” Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). A person is seized by the police only when, in light of all of the attending circumstances, a reasonable person in that situation would not feel free to leave. Id. at 786.
The Commonwealth concedes that the officers seized the defendant once they announced their intention to frisk him.
Although the question is a close one, we conclude that by the time the officers announced the patfrisk, they reasonably suspected that the defendant was committing the crime of carrying an illegal firearm, and the stop was therefore justified. This conclusion follows from the combination of the many factors found by the motion judge. The police encountered the defendant shortly after midnight in a high crime neighborhood with increasing incidences of firearm violence. He was walking with his right arm held stiff and straight against his body, which, based on the officers’ training at the police academy, suggested he was carrying a concealed firearm. While speaking with the officers the defendant appeared nervous, looking from left to right and shifting his feet, as if ready to run. Finally, and most significantly, throughout the encounter the defendant repeatedly hid his right side from, the officers’ view, and when the officers
The defendant argues that the judge’s finding that the encounter took place in a high crime area was clearly erroneous. He points to Officer Conway’s testimony commenting on three police reports describing incidents in the area in which he personally had been involved.
The defendant also argues that neither the “straight arm” walk nor the nervous movements observed by the officers could support the reasonable suspicion that he was carrying a firearm. Although nervous or furtive movements do not supply reasonable suspicion when considered in isolation, they are properly considered together with other details to find reasonable suspicion. See Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992); Commonwealth v. Pagan, supra at 782-783; Commonwealth v. Robie, 51 Mass. App. Ct. 494, 497-498 (2001). The defendant also argues that the “straight arm” walk was too am
The defendant next argues that the factors cited by the Commonwealth imply only that the defendant was carrying a concealed firearm. He reasons that because carrying a concealed firearm is not a crime, the officers’ observations could not have supplied the reasonable suspicion necessary to justify his seizure. The mere carrying of a concealed firearm is not a crime, thus observations suggesting a concealed firearm, with nothing more, do not provide reasonable suspicion for a stop. Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996). Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498 U.S. 951 (1990). However, when such police observations are coupled with other factors, there may be reasonable suspicion of a crime. See Commonwealth v. Haskell, 438 Mass. 790, 793-794 (2003) (publicly loading handgun in high crime area at 2 a.m. creates reasonable suspicion of imminent crime). Here the officers relied on additional factors to form their reasonable suspicion that the defendant was carrying an illegal gun. The defendant was in a high crime area shortly after midnight and walking with a “straight arm” gait. Most persuasively, the defendant continually attempted to hide his pocket from the officers’ view. When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop. See, e.g., Commonwealth v. Sykes, ante 308, 315 (2007) (abandoning bicycle to avoid police contributed to reasonable suspicion); Commonwealth v. Grandi
The defendant’s reliance on Commonwealth v. Alvarado, supra, and Commonwealth v. Couture, supra, is misplaced. In those cases we held that there could be no reasonable suspicion of carrying an unlicensed firearm based only on the bare suspicion of carrying a concealed firearm. In this case, not only was the defendant carrying a concealed firearm in his pocket, but he was also concealing his pocket from the police. It is the concealment of his pocket from police that supplies the reasonable suspicion that the firearm was illegal.
We conclude, as did the judge, that the officers’ patfrisk of the defendant also fell within constitutional limits. A patfrisk is constitutionally permitted when conducted by officers who reasonably believe the subject to be armed and dangerous. Commonwealth v. Wilson, 441 Mass. 390, 394 (2004), citing Terry v. Ohio, 392 U.S. 1 (1968). Such a frisk is justified by the officers’ reasonable fear for their own safety or the safety of the public. Commonwealth v. Silva, 366 Mass. 402, 406 (1974), citing Terry v. Ohio, supra at 27. Here, the officers reasonably believed that the defendant was carrying a concealed, unlicensed firearm, and that he was therefore armed and dangerous. See Commonwealth v. Fraser, 410 Mass. 541, 546-547 (1991) (officers justified in conducting protective frisk, with no reasonable suspicion of criminal activity, when they reasonably believed defendant had firearm).
The defendant argues that the officers could not have been afraid for their safety because they allowed him to reach into his pocket to retrieve his identification, a gesture he argues they would not have permitted had they truly believed that he was armed and dangerous.
b. Miranda warning. The defendant argues that an incriminating comment made immediately after Officer Bickerton announced the patfnsk, but before he had conducted the frisk, was the result of a custodial interrogation without the benefit of a Miranda warning and should therefore be suppressed.* ***
Not every Terry-type investigative stop results in a custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Commonwealth v. Haskell, supra at 795 n.1. Commonwealth v. LaFleur, 58 Mass. App. Ct. 546, 548 (2003).. “A person is in custody whenever he is ‘deprived of his freedom of action in any significant way.’ ” Commonwealth v. Almonte, 444 Mass. 511, 517, cert. denied, 546 U.S. 1040 (2005), quoting Commonwealth v. Groome, 435 Mass. 201, 211 (2001). A variety of factors are considered in that determination. See Commonwealth v. Almonte, supra at 517-518. It is the defendant’s burden to
The defendant argues that he was the subject of a custodial interrogation because the entire encounter was “police-dominated,” and because when Officer Bickerton asked if he had a firearm the officer effectively communicated to the defendant that he was suspected of committing a crime. We conclude that these elements of the defendant’s encounter with the police do not transform it into a custodial interrogation. Officer Bickerton did not imply that the defendant was suspected of a crime merely by asking if he was carrying a gun. Carrying a firearm is not a crime, and the defendant does not suggest any other criminal conduct of which he was suspected. Nor is the defendant’s description of the encounter as “police-dominated” an accurate one. The motion judge found that the tone of the officers was conversational throughout, and at no point did the interaction become aggressive. The defendant points toma words or actions of the officers that could have transformed the nature of the encounter from informal to aggressive. Miranda warnings were not required between the announcement of the patfrisk and the frisk itself. To the extent that any statements made during that interval were admitted at the defendant’s trial, there was no error.
Judgments affirmed.
The defendant testified that the officers yelled, “Hey, Dwayne.” The officers testified that they did not know the defendant’s name, but called out to him with a false name in order to engage him in conversation and observe him more closely.
This point was conceded in the Commonwealth’s brief. The Commonwealth argues elsewhere in its brief that reasonable suspicion was not required to justify the officers’ patfrisk of the defendant because at no point in the encounter was the defendant stopped. Because we conclude that the officers had reasonable suspicion when they announced the patfrisk, we need not decide whether they required reasonable suspicion for their actions, or whether a lesser standard might have sufficed.
One incident was a domestic assault involving a firearm. In another, police recovered shell casings but no firearm. The third report had an incorrect identification number and so the details of the incident were unavailable at trial.
The defendant contends that the motion judge’s findings concerning production of his identification are clearly erroneous. We have reviewed the record and conclude that there was substantial evidence to support the judge’s findings regarding the officers’ reasonable fear for their safety. Although there
Although the defendant refers generally in his brief to “statements” made after the officers announced the frisk, he only addresses the specific circumstances of one statement, in which he allegedly said he would not “blast” the officers. Officer Bickerton testified that after he announced that he would conduct a patfnsk, he asked, “Do you have a gun or do you have a firearm,” to which the defendant replied, “I wouldn’t blast you all.”