The defendant, Jose Mercado, stands indicted for murder in the first degree, breaking and entering a building with intent to commit a felony, and illegal possession of a firearm. After a hearing, a Superior Court judge allowed Mercado’s motion to suppress evidence seized from him following a police officer’s stop and frisk. The judge determined that the stop was not justified by reasonable suspicion. Pursuant to Mass. R. Crim. P. 15 (b) (2),
The facts, as found by the judge, are as follows. On August 19, 1994, at about 4:30 p.m., a number of shots were fired on the third floor of 146 Main Street in Worcester. Officer Coakley of the Worcester police department learned of the incident by police radio. According to the radio report, the suspects in the shooting were three Hispanic males who, after the reported shooting, ran south on Main Street.
When he arrived at the scene, Coakley saw another police officer assisting a man who was bleeding profusely. The officer directed Coakley to interview a woman standing on the sidewalk fifty to seventy yards to the south. The woman told Coakley that she had heard shots fired and had seen two white males running northeastward.
After speaking to the woman, Coakley started walking northerly. When he was about twenty-five to thirty feet from the woman, Coakley encountered a man named Lemerise standing on the sidewalk with his eight or nine year old son. Lemerise told Coakley that he had observed some unusual activity in Kangaroo Crossing, a sporting attire and shoe store located in a building set back less than one hundred feet from the sidewalk on which they were standing. He told Coakley that he had observed a shirtless Hispanic or black male wearing olive green pants pushing people out of his way in an apparent attempt to reach the cash register. He had three or four fifty dollar bills in his hands and said that he wanted to buy an article. The man appeared very agitated.
Coakley looked toward the doorway of Kangaroo Crossing. The judge found that “Coakley saw a Spanish male . . . start to come outside from the small vestibule. This man was later identified as Luis Yambo. . . . Yambo stopped and backed up into the vestibule. Officer Coakley also saw another Spanish male [Mercado], three or four feet behind the first, make these same movements when he saw the officer. Thereafter, they once again stepped outside.
“[Mercado] was wearing plaid shorts with a long ‘Miami Hurricane’ shirt extending over the top, and a baseball cap. He stepped out first, looking back at Yambo and then ahead at the officer. Yambo hesitated, then started out, then stopped and started once again. . . .
“Coakley then proceeded to pat them down. . . . He patted down Yambo first. . . . Then he patted down [Mercado]. He felt an object. He lifted the shirt and in the waist band of the shorts saw a firearm. It proved to be a semi-automatic 9 mm. [handgun].”
In reviewing a ruling on a motion to suppress, our duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found. Commonwealth v. Robbins,
As to the first inquiry, a police officer may stop an individual and conduct a threshold inquiry if the officer reasonably suspects that such individual has committed, is committing, or is about to commit a crime. Moses, supra at 140, quoting Commonwealth v. Wren,
We conclude that the information Officer Coakley received from the police radio, together with Lemerise’s statement and Coakley’s own observations, justified the stop and frisk of Mercado. From the radio bulletin, and his observation of the bleeding man, Coakley knew that a shooting had recently oc
Mercado relies heavily on Commonwealth v. Cheek,
We rejected the Commonwealth’s contention that reasonable suspicion arose from the match of the coat to the radio description coupled with the defendant’s presence in the high crime area where the stabbing allegedly occurred. We observed that the description of the suspect as a “black male with a black ¾ length goose” could have fit a large number of men living in the area where the stop occurred. Id. at 496. We also observed that neither his proximity to the crime scene nor his presence in a high crime area “contribut[ed] ... to the officers’ ability to distinguish the defendant from any other black male” in the neighborhood. Id. In particular, we noted that the police had not observed the defendant engaged in any suspicious activities. Id.
Neither evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support the reasonable suspicion necessary to justify a stop and frisk. See Cheek, supra at 492 (general description and proximity insufficient to warrant stop); Commonwealth v. Thibeau,
We now turn to the second inquiry arising from a “stop and frisk” search: whether the scope of the search was within constitutional limits. See Owens, supra at 600; Silva, supra at 405. Those limits are exceeded unless the search is “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Silva, supra at 407, quoting Terry, supra at 19. “The degree of intrusiveness that is permitted is
Applying constitutional principles to the instant case, we conclude that the evidence should not have been suppressed. “We believe the circumstances justified the officer’s actions.” Commonwealth v. Summerlin,
The order allowing the motion to suppress is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Notes
The motion judge noted in his ruling that “Officer Coakley had inconsistent information from different sources.” While it is appropriate for the judge to consider the existence of inconsistent information, inconsistencies alone do not foreclose the possibility of reasonable suspicion. The question is whether the officer knew sufficient articulable facts to form a reasonable suspicion of particular individuals.