Responding to a telephone report about black youths with a gun in a public playground, investigating Framingham police officers stopped and pat-frisked the defendant, Lawrence J. Grinkley. The frisk produced no gun but did find two prescription bottles in Grinkley’s pants pocket that contained twenty-eight bags of crack cocaine. A jury convicted Grinkley of possession of a class B substance with intent to distribute (G. L. c. 94C, § 32A[o]) and related offenses. He argues on appeal that a judge erroneously denied his motion to
The facts on which the motion judge ruled were presented through the testimony of the sole witness at the suppression hearing, Framingham police Sergeant Kevin Slattery. At approximately 8:20 p.m. on July 13, 1995, Slattery received word from the police dispatcher
“that a woman, whose name was given, was calling stating that she had seen a gun down at the Mary Dennison Field, on Beaver Street. That there was a group of black youths, and Hispanic youths there. That the group of black youths were by the tennis courts, and that they had a gun. And that she thought there was going to be a fight.”
Several officers were sent to the area to investigate, and Slattery went independently “to assist.” The Mary Dennison Field is a large, public recreational facility that contains playgrounds, tennis courts, lighted basketball courts (which are “quite a distance away” from the tennis courts), and softball diamonds. It is a popular summer “hangout” for youths in a neighborhood that is racially and ethnically mixed but is not (at least was not so described by Slattery) a high-crime area. Slattery parked his police vehicle in a funeral home parking lot at the rear of the field opposite the Beaver Street side so as to be in a position to intercept “anybody [who] came running.”
As he watched from his location, he noticed a group of Hispanic youths gathered at the distant basketball courts. He also saw several officers approach a group of black youths who were by the tennis courts.
Only then did Slattery notice Grinkley, as he was being questioned by another officer. Slattery recalled that he had previously arrested Grinkley for assault and battery with a dangerous weapon (a knife), an arrest that resulted in Grinkley’s conviction. Slattery also recognized another of the youths as someone whom he had arrested, and who was subsequently convicted, for armed robbery with a handgun. Slattery heard Grinkley give the inquiring officer a name Slattery knew to be false. When Slattery challenged Grinkley’s response, Grinkley persisted in his refusal to admit his real name. At that point Slattery, concerned that the reported gun had not been discovered, “went to pat him down.”
As Slattery “started looking ... at the bottles more carefully,” Grinkley denied that they were his. Slattery immediately realized that what he had found was not a weapon or a danger to the officers. Holding the bottles in front of him and spinning them around, he saw that they contained small glassine bags with a white substance in them as well as tablets. Based on his
Based upon Slattery’s essentially uncontested testimony, the motion judge concluded that the incriminating drugs had been obtained as the result of a valid investigative stop and frisk. That conclusion did not, however, find evidentiary support in Slattery’s testimony or the reasonable inferences therefrom.
In “stop and frisk” cases, the primary inquiry is whether a
When police suspicion arises not from officers’ own observations but from an informant’s tip, as here, the Commonwealth has- the burden of establishing both the informant’s reliability and the basis of her knowledge, although police corroboration may make up for deficiencies in one or both of those factors. Commonwealth v. Lyons,
It might be inferred that the tipster had, as she asserted, personally observed the matters she recounted, and that there was a need for the police to act quickly because of the perceived threat to public safety. Those inferences might justify brevity and a lesser degree of detail. See Commonwealth v. Anderson,
Nonetheless, despite the fact that what the tipster described “did not reveal any special familiarity . . . that might substitute for explicit information about the basis of the caller’s knowledge,” Commonwealth v. Lyons,
Nonetheless, the cases cited by the Commonwealth in support of a relaxed standard of reliability involved individuals personally known to the police, most of them past reliable informants, and not, as here, a person previously unknown to and never actually met by the police. Compare Commonwealth v. Ciaramitaro,
Unlike those cases, the informant’s stated identity here could not be verified because she did not leave a telephone number and presumably could not be contacted by the police. See Commonwealth v. Melendez,
Whatever the insufficiencies in an informant’s tip, we recognize that “[w]hen a tip . . . concerns the possession of a firearm, it deserves the immediate attention of law enforcement officials.” Commonwealth v. Stoute,
Unlike the cases in which police observations confirm all or most of the nonobvious predictive details of an informant’s tip, e.g., Draper v. United States,
Although Slattery did see a group of Hispanic youths, they were not, as predicted, near the black youths or in a position to engage them physically but rather were “quite a distance away.” He discerned no interaction between the two groups, much less a recent, ongoing, or threatened fight, or even apparent tension. Neither Slattery nor any of the police officers espied a gun or other weapon in the possession of the black youths. Thus, the only significant details of the tip — the observation of a gun and the apprehended imminence of a melee — proved unreliable. Nor did Slattery view any strange, furtive, or suspicious behavior on the youths’ part that could infuse otherwise innocent activity with incriminating aspect in the discerning eye of an experienced police officer. Contrast Commonwealth v. Cast,
In short, even combined with Slattery’s observations at the
Only if other factors are present in addition to arguably evasive behavior, which “in combination may allow the police to narrow the range of suspects to particular individuals,” may áttempts to avoid contact with the police be considered in the reasonable suspicion calculation. Commonwealth v. Mercado, supra, and cases cited. See Commonwealth v. Harkess,
More to the point, unlike the “other factors” which the cases just cited allow to be combined for “reasonable suspicion” purposes with apparent efforts to avoid contact with the police, the report of a gun was not an action or condition actually observed by or known to the police. It was not another “fact,” contrast Commonwealth v. Mercado,
The cases involving police investigation of reports of a gun or other weapon do not countenance such a conflation: they rather stress the necessity of actual police knowledge and observations, particularly in conjunction with a particular individual’s suspicious behavior, in substantiating a tip of less-than-solid veracity. See Commonwealth v. Anderson,
Upholding the validity of a stop and frisk in the instant circumstances would dilute the requirement of using “objective criteria” in determining reasonable suspicion, to the point of increasing “the risk of arbitrary action and abusive practices by police,” Commonwealth v. Lyons,
It is clear that the police stopped Grinkley and his companions, for constitutional purposes — i.e., effected their “seizure” — when the youths submitted to the several police officers’ show of authority in advancing on them, shouting and waving at them to stop and return as they walked toward the woods. The youths reacted by doing precisely what the officers had demanded, in a situation in which we are confident no reasonable person would have felt free to leave without responding to the police commands. See Terry v. Ohio,
Prior to that police show of authority in pursuit of the youths, Slattery and his police colleagues had no reasonable suspicion, based upon specific and articulable facts, to stop Grinkley for any past, ongoing, or threatened crime. Slattery’s post-stop recognition of Grinkley and one of his companions as individuals he had previously arrested for weapons crimes, his awareness that Grinkley was using an alias, and his failure to find any gun in the woods — observations that would have constituted specific and articulable facts weighing in favor of a finding of reasonable suspicion had they preceded the stop, see Commonwealth v. Silva,
Because the tip and subsequent police corroboration did not establish reasonable suspicion to stop Grinkley, his motion to suppress the fruits of the subsequent frisk should have been allowed. Had it been allowed, the Commonwealth’s evidence against Grinkley on the drug charges would have been insufficient to support conviction, and his motion for required findings of not guilty would have succeeded. He is now entitled to the entry of such findings. See Commonwealth v. Thibeau,
Judgments reversed.
Verdicts set aside.
Judgments for the defendant.
Notes
Slattery did not specify the number of officers involved in the investigation or the number of black youths during the suppression hearing. At trial he testified that there were three officers besides himself and seven or eight youths.
Slattery’s testimony is incomplete and unclear regarding the precise manner in which the police caught up to the youths. The Commonwealth’s brief states that the officers had, by their conduct, “ordered [the youths] back to where the officers were standing.”
The other officers had already patted or were in the process of patting down the other youths at this moment. No gun had up to that time been discovered on any of the youths. Grinkley was the last or one of the last to be patted down. No weapon of any kind was uncovered by the frisks.
The prescription bottles contained twenty-eight “dollar bags” of crack cocaine.
Although the findings of the judge who heard the motion to suppress are binding in the absence of clear error — a very limited standard of review — and the judge’s conclusions of law based thereon are entitled to respect, because the issue presented is one of constitutional dimensions those findings (at least those not based upon credibility assessments) and rulings of law are open for reexamination by an appellate tribunal. See Commonwealth v. Yesilciman,
The judge had summarily denied the motion to suppress on the date of the hearing without making findings, oral or written. At the request of this court, written findings were prepared by the motion judge. The pertinent erroneous findings behind the judge’s ruling were as follows: “As he [Slattery] approached he saw a few other officers approach the group of black youths who then ran toward the woods. He followed them and recognized the defendant and another youth as individuals previously arrested by him and convicted of assault and battery with a dangerous weapon and armed robbery with a handgun, respectively. When they stopped running, he heard one of the officers ask the defendant his name, to which he responded with a name which Sgt. Slattery knew to be false. He [Slattery] challenged the defendant’s response but the defendant refused to admit his true name. At this point the other officers had pat frisked the other youths and had not found any gun .... At that point he was reasonably justified in fearing for his safety . . . [and in] deciding] to pat frisk the defendant for weapons out of concern for his safety.” Aside from the minor embellishments that went beyond Slattery’s testimony (he conceded that the youths did not “run” away and never mentioned that he feared for his safety), these findings most significantly overlooked the police show of authority that effected the stop, ignored the fact
Because we conclude that the stop and threshold inquiry did not satisfy those standards, we do not reach the second part of the two-part analysis in “stop and frisk" situations: whether the scope of the frisk, or the degree of its intrusiveness, was reasonable in the circumstances. See Commonwealth v. Silva, 366 Mass, at 405; Commonwealth v. Bennent,
Because the standard for investigatory stops is reasonable suspicion rather than probable cause, “a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, supra.
9The informant here did not claim to be and in all probability was not “a neighborhood person,” since the street given as her address does not exist near Mary Dennison Field, or, indeed, anywhere in Framingham. See Commonwealth v. Boston & Me. Transp. Co.,
Even under the cases just cited, the possession of a firearm by a minor would be presumptively illegal as unlicensed and therefore ground for police investigation. See G. L. c. 140, § 131; G. L. c. 269, § 10. The record does not, however, provide any information regarding the ages of Grinkley and the other black “youths” or suggesting that the prior convictions of Grinkley and one of the other “youths” were as juvenile rather than as adult offenders. We have previously encountered the imprecise usage of the term “youth” in criminal cases. Commonwealth v. Burnett,
Contrast also Commonwealth v. Cavanaugh,
The motion judge did not expressly determine when Grinkley was stopped by the police. As noted, the Commonwealth concedes that the youths had stopped and returned in response to the police “ordering] them back to where the officers were standing.”