449 Mass. 308 | Mass. | 2007
The defendant in this case was charged with carrying a firearm without a license, possession of a firearm without a firearm identification card, commission of a felony while possessing a firearm with a defaced serial or identification number, assault and battery on a police officer (two counts), and resisting arrest. A judge in the Dorchester Division of the Boston Municipal Court allowed the defendant’s motion to suppress evidence re
The judge’s unchallenged findings are as follows. At about 6 p.m. on August 23, 2005, Officers Chin, Griffin, Charbonnier, and O’Brien of the area C-ll drug control unit responded to a 911 telephone call. The caller alleged drug activity among ten to twenty black and Hispanic males, wearing white shirts and jeans, who had congregated on Bird Street in the Dorchester section of Boston, a known high-crime area. The caller did not identify particular individuals by name or by physical characteristics. The police officers were in an unmarked Ford Crown Victoria automobile and were dressed in plain clothes. Their shirts were emblazoned with the words, “Boston Police Department Anti-Crime Unit,” and all four officers were displaying their badges outside of their clothes.
While en route to Bird Street, the officers received a radio message from Boston Detective Gallarelli, who stated that he had just been in the vicinity of Bird Street and had seen the reported ten to twenty black and Hispanic males in white T-shirts, and that they were engaged in pitching pennies. Detective Gallarelli did not tell the officers that he had witnessed any illegal drug activity.
When the four police officers reached their destination, they observed a group of black males huddled on the odd-numbered side of Bird Street. The officers saw the defendant look at them. The defendant, who was on a bicycle, then began to move away from the group of black males. He turned and looked back in the direction of the officers several times as he rode away. The officers pulled their vehicle alongside the defendant and asked if he would speak with them. In response, the defendant sped up. The officers correspondingly did the same.
The defendant rounded Bird Street onto Hancock Street, hit a
The judge concluded that the encounter between the defendant and the police officers became a seizure when, after asking the defendant if they could speak with him, the defendant sped up on his bicycle and the officers proceeded to follow him in their vehicle. At that point, the judge opined, the officers were acting in such a manner as to force the defendant to submit to police authority, because a reasonable person would have believed that he was not free to leave without answering the officers’ questions. The judge stated that at the time of seizure, the officers did not have reasonable suspicion to believe that the defendant was engaged in any criminal activity. Therefore, the judge allowed the defendant’s motion to suppress.
In reviewing the disposition of a motion to suppress, “we accept the motion judge’s subsidiary findings of fact absent clear error.” Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). We make an independent determination whether the judge correctly applied constitutional principles to the facts as found. See Commonwealth v. Robbins, 407 Mass. 147, 151 (1990).
Determining the precise moment at which a seizure occurs is critical to resolving the issue of suppression. See Commonwealth v. Barros, 435 Mass. 171, 173 (2001). A person has been “seized” by a police officer, “if, in view of all of the circum
Not surprisingly, the Commonwealth and the defendant differ in their opinions as to when the defendant was seized by law enforcement officials. The defendant contends, and the judge found, that seizure occurred when, after being asked by the officers if he would speak with them, the defendant sped up on his bicycle and the officers correspondingly did the same, following him in their vehicle. In the defendant’s view, the officers’ actions constituted a “chase,” the object of which was to capture and interrogate him. The defendant argues that the officers’ pursuit indicated that he was not free to leave without responding to their inquiries, and that he had become the subject of undeniable police authority. It was, the defendant continues, the functional equivalent of a seizure.
Whether a police “pursuit” will be considered a seizure depends on the particular nature of the law enforcement action. “[Pjursuit begins only when action by the police would ‘communicate[] to the reasonable person an attempt to capture or otherwise intrude on [an individual’s] freedom of movement.’ ” Commonwealth v. Watson, 430 Mass. 725, 731 (2000), quoting Commonwealth v. Williams, 422 Mass. 111, 116 (1996). “It occurs when police attempt to stop an individual ‘to effectuate a threshold inquiry.’ ” Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 117. See Commonwealth v. Barros, supra at 174-176 (police action in following defendant in cruiser, leaving vehicle, approaching defendant, demanding to speak with him, and telling him, “Come here,” had compulsory dimension that transformed encounter into seizure); Commonwealth v. Smigliano, 427 Mass. 490, 491-492 (1998) (activation of police car’s blue lights constituted seizure, requiring reasonable suspicion of criminal activity); Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981) (pursuit designed to effect stop encumbers freedom of movement, necessitating constitutional scmtiny); Commonwealth v. Dasilva, 56 Mass. App. Ct. 220, 224-225 (2002) (police conduct in following lone bicyclist and twice ordering him to stop with unmistakable intent of requiring him to submit to police inquiries amounted to seizure). See also Commonwealth v. Stoute, supra at 782-784, 788-790 (under art. 14 of Massachusetts Declaration of Rights, seizure occurs not only when police officer physically detains individual, but also when officer engages in pursuit with obvious intent of detaining individual for inquiry).
“[A] claim of police ‘pursuit’ by [a] defendant, however, is
The defendant here correctly acknowledges that there was no “pursuit” and, therefore, no seizure when the police officers initially pulled their vehicle alongside the defendant’s bicycle on Bird Street and asked if he would speak with them. The officers did not restrict the defendant’s movements, and plainly the defendant felt free to leave, because his response to the officers’ inquiry was to pedal away quickly. See Commonwealth v. Barros, supra. Once that occurred, the officers merely followed the defendant in their cruiser, keeping him under surveillance. They did not turn on their blue fights, flashers, or sirens. There was no evidence that the officers blocked or impeded the defendant’s path, direction, or speed. They did not demand that he stop and answer any questions. Such action (or inaction) by the police simply did not constitute a pursuit, and, therefore, was not a seizure of the defendant. It was the subsequent actions of the officers that constituted “an intrusion of constitutional dimensions requiring justification.” Commonwealth v. Stoute, supra at 789.
Neither mere presence in a high-crime area nor flight from police officers is sufficient to justify a stop. See Commonwealth v. Grandison, supra. “However, ‘[sjeemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry’ ” (emphasis added). Id., quoting Commonwealth v. Watson, supra. See Commonwealth v. Wilson, supra at 414-415, and cases cited (flight may be considered as one factor, among others, in determining whether reasonable suspicion existed when police began to chase defendant); Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 52-53 n.10 (2000) (“once the circumstances establish suspicion sufficient to justify a stop, the subsequent flight of a defendant may contribute to the objective indicia of criminality”). “The facts and inferences underlying the officer’s suspicion must be viewed as a whole when assessing the reasonableness of his acts.” Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981) (suspicion must be reasonable before pursuit begins).
We acknowledge that this is a close case. Nonetheless, after careful consideration, we conclude that the police officers pos
The order allowing the motion to suppress is reversed, and an order denying the motion is to enter. This case is remanded to the Boston Municipal Court for further proceedings.
So ordered.