Commonwealth v. Greenwood1

78 Mass.App.Ct. 611

941 N.E.2d 667

COMMONWEALTH

v.Knowell GREENWOOD.1

09–P–379.

Appeals Court of Massachusetts, Suffolk.

Argued June 15, 2010.Decided Jan. 20, 2011.

Dale M. Merrill, Reading, for the defendant.Paul B. Linn, Assistant District Attorney, for the Commonwealth.Present: McHUGH, MILLS, & GRAINGER, JJ.GRAINGER, J.

The defendant, Knowell Greenwood, was indicted on five counts, among them kidnapping, G.L. c. 265, § 26; breaking and entering, G.L. c. 266, § 17; and armed robbery, G.L. c. 265, § 17, all as a habitual offender.² Prior to trial, he filed a motion to suppress a pretrial identification. He also filed a motion to suppress an in-court identification. The trial judge denied both motions, and the Commonwealth introduced the contested evidence at trial. A jury convicted the defendant of kidnapping, breaking and entering, and the lesser included offense of unarmed robbery. On appeal, the defendant raises numerous claims of error, including the denial of his pretrial motions to suppress. Because we conclude that the arresting officers' initial search of the defendant's possessions was not supported by probable cause, but that the admission of the resulting fruits at trial was harmless beyond a reasonable doubt, and we reject the defendant's other claims of error, we affirm the judgments of conviction.

Background. We summarize the relevant facts from the motion judge's findings, supplemented as necessary with uncontested facts from the motion hearings. ³ See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007) ( Isaiah I. [No. 1] ), S.C. 450 Mass. 818, 882 N.E.2d 328 (2008) ( Isaiah I. [No. 2] ). At approximately 11:30 a.m. on October 9, 2004, a dispatcher for the Boston police department received a call from a resident of 1396 Dorchester Avenue, who reported that two large black males were banging on doors in his building. Officers Charles Blicker and Patrick Murphy responded to the scene in an unmarked police cruiser, which they parked roughly fifty feet from the apartment building's front entrance. Proceeding to the second floor to speak with the caller, the officers observed several objects—specifically, a black book bag and a paper bag containing a partially filled bottle of beer—in the second-floor hallway outside the caller's apartment. The officers spoke with the caller, who reiterated his initial report to the officers, adding that one of the two individuals—neither of whom he recognized—had braided hair. He also disclaimed ownership of the items discovered in the hallway, indicating that they had appeared only recently.

Officers Blicker and Murphy canvassed the building's four floors in search of any suspicious persons. Failing to observe any suspicious activity or individuals during the course of their search, the officers exited the building from the rear. En route to their cruiser via the side of the building, they observed several pieces of broken glass on the ground, which Officer Blicker determined to have originated from a shattered window on the building's third floor. Discerning no need to investigate further, the officers continued toward their cruiser intending to survey the building's front entrance for several minutes before clearing the call.

Moments before entering the cruiser, Officer Blicker spotted a black male with braids, subsequently identified as the defendant, exiting the building via the front entrance. The defendant was carrying the black book bag and beer bottle previously observed by the officers in the hallway. Also in his possession were a cooler bag and a woman's beige purse. Walking into the middle of Dorchester Avenue, the defendant immediately waved down a Pontiac Grand Am automobile. After engaging the driver in a brief conversation, the defendant entered the vehicle on the passenger side. Officers Blicker and Murphy immediately entered their cruiser, activated their lights, and pursued the vehicle, pulling it over within one hundred feet of the apartment building.

With Officer Murphy serving as backup, Officer Blicker approached the vehicle and questioned the driver, who maintained that he was not familiar with the defendant and was merely giving him a ride to a nearby location. Satisfied with the driver's explanation, Officer Blicker turned his attention to the defendant, whom he immediately removed from the vehicle. He pat frisked the defendant and, once satisfied that the defendant was not armed, questioned him concerning his activities at 1396 Dorchester Avenue. Receiving an unintelligible answer from the defendant, who appeared slightly inebriated, the officers then sought to determine ownership of the purse in the defendant's possession. The defendant asserted that the purse belonged to his grandmother, providing her name to the officers. Unconvinced by this explanation, Officer Blicker retrieved the purse and opened it to test the defendant's explanation. Among the items discovered in the purse was a prescription pill bottle bearing the victim's name and listing his address as 1396 Dorchester Avenue. Based on this discovery, Officer Blicker handcuffed the defendant pending further investigation.

At this point, Officer Antonio DiMaggio arrived on the scene. Conducting a cursory search of the black book bag, Officer DiMaggio found several additional prescription pill bottles bearing the victim's name and the 1396 Dorchester Avenue address. Receiving no answers from the defendant regarding ownership of the bottles, Officer DiMaggio proceeded to the apartment in search of a potential victim. Upon arriving at the apartment and discovering the door ajar, Officer DiMaggio entered with his gun drawn to conduct a protective sweep. Once inside, he encountered the victim, who appeared disheveled and informed Officer DiMaggio that he had just been robbed, describing his assailant as a black male with “dread locks.” ⁴ He further stated that the robber had choked him and placed him in a closet during the course of the robbery, threatening to kill him if he emerged. He also stated that he had attempted to contact the police once the robber fled the scene, but found that his telephone wires had been ripped out of the wall.

After taking the victim's statement, Officer DiMaggio informed him that the police had a suspect in custody at a nearby store. Within approximately fifteen minutes of the defendant's initial detainment, officers transported the victim to the that store to conduct a showup identification. Observing the defendant as he exited one of several cruisers in the parking lot, the victim immediately recognized the defendant as the robber, providing a positive identification to the police. He also subsequently identified several items in the defendant's possession, including house keys and prescription pill bottles, as his belongings.

Reasoning that the police “did not exceed the permissible scope of a threshold inquiry,” the motion judge found the search of the purse and the defendant's subsequent detainment to be reasonable extensions of the initial stop. He further concluded that, in light of the alleged “violent home invasion” and “in the interest of public safety,” the showup identification was necessary, and that nothing in the facts “indicate[d] that the manner in which this particular showup was conducted was unnecessarily or impermissibly suggestive.” Accordingly, the judge denied the defendant's motions to suppress and found the showup identification—and, by extension, any future in-court identification—to be admissible.

Discussion. 1. Claims based on pretrial motions to suppress. Both motions to suppress are directed to the initial detention of the defendant immediately after the robbery. The defendant contends that the police lacked reasonable suspicion for the initial stop and possessed no probable cause to search the purse, book bag, or cooler bag. Therefore, he asserts, all the evidence subsequently obtained, including the victim's showup and in-court identifications of the defendant, and moreover the victim's in-court testimony identifying the items stolen from him,⁵ was the product of an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. When reviewing a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error. Isaiah I. (No. 2), 450 Mass. at 821, 882 N.E.2d 328. “Our review of the application of constitutional principles to those facts, however, is plenary.” Commonwealth v. Watts, 74 Mass.App.Ct. 514, 516–517, 908 N.E.2d 788 (2009), quoting from Commonwealth v. Kaupp, 453 Mass. 102, 105, 899 N.E.2d 809 (2009).

a. Initial stop and exit order. We agree that Officers Blicker and Murphy possessed a reasonable suspicion of criminal activity sufficient to justify their initial stop of the vehicle and exit order to its occupants. Where police officers have a reasonable, articulable suspicion that a person in a vehicle has committed, is committing, or is about to commit a crime, they may stop that vehicle, issue an exit order, and conduct a threshold inquiry. Commonwealth v. Bostock, 450 Mass. 616, 619, 880 N.E.2d 759 (2008), citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Though the officers were admittedly uncertain that a specific crime had occurred, their observations to that point were sufficient to raise a reasonable suspicion of criminal activity. It is well established that otherwise innocent conduct, when considered in the aggregate, can give rise to reasonable suspicion. Isaiah I. (No. 2), supra at 823, 882 N.E.2d 328; Commonwealth v. Pagan, 63 Mass.App.Ct. 780, 782–783, 829 N.E.2d 1168 (2005). Here, the defendant matched the caller's general description of the suspicious individual banging on doors. The responding officers first observed him in possession of the black book bag and paper bag seen minutes earlier in...