COMMONWEALTH vs. JOSHUA EDWARDS.
Supreme Judicial Court of Massachusetts
January 20, 2017
476 Mass. 341 (2017)
Suffolk. September 6, 2016. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
A Superior Court judge erred in allowing the criminal defendant‘s pretrial motion to suppress evidence seized from the motor vehicle he had been driving, where, at the moment of seizure, which occurred when a police officer activated his cruiser‘s blue lights and blocked the egress of the defendant‘s vehicle [345], the officer had minimally sufficient facts to establish a reasonable suspicion that the defendant was engaged in criminal activity, based on a report of the defendant holding a gun early in the morning on a deserted residential street from a witness whose basis of knowledge had been established, in combination with the defendant‘s conduct and in light of the officer‘s experience [345-347]; further, the officer‘s actions were reasonably related in scope to the circumstances that justified the interference in the first place, and other police officers properly escalated their response in proportion to the defendant‘s actions following the initial seizure that increased the degree of reasonable suspicion [347-349].
INDICTMENTS found and returned in the Superior Court Department on April 23, 2013. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J.
An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Greg L. Johnson for the defendant.
Matthew T. Sears, Assistant District Attorney, for the Commonwealth.
BOTSFORD, J. The defendant, Joshua Edwards, has been indicted for multiple offenses, including firearms offenses, with which he was initially charged following the seizure and search of a motor vehicle he had been driving. Before trial, he moved to suppress evidence seized during the search of the vehicle, invoking the
Factual background. One witness, Boston police Officer David Lanteigne, testified at the hearing on the motion to suppress. In addition, a number of photographs, documents, and police radio transmissions, as well as a recording of a 911 call, were received in evidence. In reviewing a judge‘s decision on a motion to suppress, we “accept the judge‘s subsidiary findings of fact absent clear error, but conduct an independent review of the judge‘s ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007). Without “detract[ing] from the judge‘s ultimate findings,” Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015), we supplement his factual findings with “evidence from the record that ‘is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness‘s testimony‘” (citation omitted). Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).1
On March 17, 2013, at approximately 1:30 A.M., the Boston police received a 911 call.2 The caller identified himself by name, Jabari Wattley, and told the operator that he could see a man
The police dispatcher broadcast the information as a “Priority 1” call, requesting “any unit nearby” to respond to the address. A call coded as “Priority 1” “means that it was of a serious nature and that response time and protecting officer safety were both high priorities.” A marked cruiser driven by Lanteigne arrived on Armandine Street shortly after the broadcast.4 The cruiser did not have its emergency lights activated. Lanteigne stopped when a man (later identified as Wattley) ran off his porch toward the cruiser and began “yelling” to Lanteigne and pointing at a black Acura motor vehicle that was parked twenty to thirty feet in front of the cruiser, on the right hand side of the street.5
The Acura was legally parked very close to the curb, and was completely dark; no interior or external lights were on. Another vehicle was parked in front of the Acura, but the space or spaces behind it were empty. At that point, Lanteigne observed the Acura‘s brake lights illuminate, and Wattley yelled something to the effect of, “That‘s him. That‘s the guy, he‘s about to drive away.” In response, Lanteigne activated the cruiser‘s blue lights, strobe lights, and other lights, and moved the cruiser alongside the driver‘s side of the Acura in order to block the vehicle from
Lanteigne got out of the cruiser and removed his firearm from its holster. At the same time, the defendant got out of the Acura and closed the door. He “appeared to take no notice of and pay no attention to” Lanteigne, and started to walk away. Lanteigne responded by running to the front of his cruiser and ordering the defendant to stop. When the defendant turned and started walking away quickly, the officer holstered his own weapon, pushed the defendant against the rear of the Acura, forced him to the ground when he resisted being pushed, and handcuffed him.
Another police officer who had responded to the scene stood immediately next to the closed driver‘s side door of the Acura, and leaned toward the window. He observed a firearm lying on the floor by the driver‘s seat.6 If the defendant had been seated in the vehicle, “his legs would have completely hidden the gun from view.”
The police determined that the defendant did not have a Massachusetts driver‘s license, and that he was not the registered owner of the Acura. The police decided to tow the vehicle because a person having lawful control of the vehicle was not present, and because there had been vandalism in the area. Prior to the tow, the vehicle was searched pursuant to an inventory policy. In addition to the firearm, the police found an open bottle of beer, a cup containing what appeared to be an alcoholic beverage in the console next to the driver‘s seat, and a closed, full bottle of beer.
Suppression ruling. The motion judge allowed the motion to suppress because he concluded that, at the time Lanteigne stopped and seized the Acura vehicle — identified by the judge as the moment when Lanteigne activated his cruiser‘s blue lights and blocked the Acura from leaving — the police lacked a reasonable, articulable suspicion that criminal activity was afoot.7 See Commonwealth v. Alvarado, 423 Mass. 266, 268 & n.3 (1996), citing Terry v. Ohio, 392 U.S. 1 (1968). The judge emphasized that it is not unlawful to carry a gun in public; it is only
Discussion. We agree with the motion judge that the determinative issue in this case is whether the initial stop of the Acura was predicated on “reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the . . . motor vehicle had committed, was committing, or was about to commit a crime.” Alvarado, 423 Mass. at 268. See Commonwealth v. Wilson, 441 Mass. 390, 394 (2004). See also Terry, 392 U.S. at 21-22.
Breaking down the inquiry into its component parts, we consider when the stop and seizure occurred, whether the stop was supported by reasonable suspicion, and whether the scope of the ensuing search was proportional to the degree of suspicion that prompted it.
1. Moment of seizure. Like the motion judge, we conclude that the defendant clearly was stopped and seized in the constitutional sense when Lanteigne activated his cruiser‘s blue lights and blocked the Acura‘s egress. See Commonwealth v. Thompson, 427 Mass. 729, 733 (1998). Viewed objectively, at that moment, a reasonable person would not have believed that he was free to leave the scene. See Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001); Commonwealth v. Smigliano, 427 Mass. 490, 491 (1998).
2. Reasonable suspicion to initiate stop. Under the principles of Terry, 392 U.S. at 21-22, a police officer may stop a person to make a “threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime.” Commonwealth v. Silva, 366 Mass. 402, 405 (1974). An officer‘s suspicion must be grounded in “‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch‘” (citation omitted). Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). In this case, the stop was predicated primarily on the information contained in the police broadcast. That information was provided by a person who both identified himself and said he personally had seen the defendant with a gun at 1:30 A.M. on a deserted, residential street. He identified the defendant by name; explained that he knew the defendant; met the police officer, Lanteigne, at the address he had provided to the 911 dispatcher; and pointed out the defendant‘s
Although Wattley did not describe the firearm to the 911 dispatcher — and, as the motion judge observed, there is nothing illegal about merely possessing an appropriately licensed gun — there was more to the 911 call and Wattley‘s description of the defendant‘s behavior than mere possession of a gun.9 As Wattley reported, the defendant drove away and then came back to Armandine Street; he got out of the vehicle and stood outside while holding a gun — apparently in his open hand, because Wattley reported seeing the weapon; the defendant returned the firearm to the vehicle before entering the vehicle himself; and he then sat alone in the vehicle with all of its lights off. These facts, coupled with the time (approximately 1:30 A.M.), the location (a deserted street in a residential area, “within a few blocks” of which there had been repeated crimes of violence, including gun violence and homicides), and the officer‘s belief that “trained, licensed owners of a handgun typically carry their firearm in a holster,”10 combine to create a scenario that an experienced police officer could reasonably believe is more consistent with likely
When these facts are considered together and in light of Lanteigne‘s police experience, they are sufficient to establish, even if just barely, the requisite nexus to suspected criminal activity to warrant an investigatory stop, because the officer “could reasonably infer from the conjunction of these facts that criminal activity might be afoot.” Thompson, 427 Mass. at 734. See id. (vehicle double-parked in front of townhouse that was subject of narcotics investigation, late at night, with engine running, in high crime area); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (reasonable suspicion present where defendant was sitting alone in automobile in high crime area late at night, with its engine running and lights off).11 Contrast Couture, 407 Mass. at 183 (in absence of other factors, “mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun“).
3. Scope of search. Not only was the decision to make an investigatory stop objectively reasonable, but the officer‘s actions were “reasonably related in scope to the circumstances which justified the interference in the first place.” Commonwealth v. Borges, 395 Mass. 788, 793 (1985), quoting Terry, 392 U.S. at 20. See Commonwealth v. Moses, 408 Mass. 136, 141 (1990) (once investigative circumstances for stop are established, “[t]he pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances“). When Lanteigne saw the Acura‘s brake lights illuminate, he “feared that the Acura was about to drive away.” Activating the cruiser‘s emergency lights and blocking the Acura‘s egress were reasonably prudent protective measures that were proportional to the degree of suspicion that prompted the stop. See Moses, supra (“common knowledge that a person who wants to avoid police questioning, very often will recklessly drive away, resulting in serious injury to the police and bystanders“).
The defendant did not, however, remain in the vehicle. Instead, after the cruiser‘s blue lights and strobe lights had been activated and the cruiser had pulled along the driver‘s side of the Acura, the defendant got out of the vehicle and “appeared to take no notice of and pay no attention to Lanteigne and started to walk away“; he disregarded the officer‘s order to stop, and turned and began to walk quickly in a different direction. Because the defendant resisted the officer‘s attempts to stop him, the officer was warranted in physically restraining him to further the investigation. See Commonwealth v. Williams, 422 Mass. 111, 119 (1996) (“restraint, . . . limited in duration and necessary to complete the [investigatory] inquiry, does not turn a valid investigatory stop into an unlawful arrest“). See also Commonwealth v. Torres, 424 Mass. 153, 162 (1997) (limited restraint for purposes of threshold inquiry permissible where commensurate with purpose of stop).
While Lanteigne was occupied with the defendant, another officer, who had arrived on the scene and was standing outside the defendant‘s vehicle, observed a gun on the floor of the Acura near the driver‘s seat. For essentially the same reason that Lanteigne
Once the police lawfully had access to the vehicle, under the plain view doctrine, additional items could be seized, provided the incriminating character was apparent. See, e.g., Commonwealth v. Santana, 420 Mass. 205, 211 (1995). In this case, two open containers of what appeared to be alcoholic beverages were seized from the center console. The incriminating character of these open containers was apparent. See Commonwealth v. Johnson, 461 Mass. 44, 50 n.7 (2011) (“possession of an open container of alcohol in a motor vehicle is a misdemeanor“);
Conclusion. Considered collectively, the articulable facts in this case combine to establish a reasonable suspicion of criminal
So ordered.