Commonwealth v. Martin, 15-P-403

91 Mass.App.Ct. 733

81 N.E.3d 350

COMMONWEALTH

v.Dequan MARTIN.

No. 15-P-403

Appeals Court of Massachusetts, Suffolk..

Argued April 1, 2016.

Decided July 6, 2017

Chase A. Marshall, Boston, for the defendant.

Kathryn Leary, Assistant District Attorney, for the Commonwealth.

Present: Meade, Wolohojian, & Maldonado, JJ.

MALDONADO, J.

In this case, we consider whether the warrantless entry by police into a residence was justified where the entry was made while chasing the defendant, who fled from police during a stop for a civil infraction of marijuana possession. Concluding that these circumstances do not give rise to any exigency that would authorize the police to follow the defendant into a residence, we reverse.

Background. On April 11, 2012, at about 8:50 P.M. , two undercover Boston police officers, while patrolling the Dorchester section of Boston, approached a legally parked vehicle in which sat three males. The vehicle was "consumed with smoke" and condensation had formed on the rear windshield. The defendant was seated in the front passenger seat. As the officers approached the vehicle, the defendant opened the door and stepped outside. Smoke emanated from the vehicle, and the officers were struck by a "strong" odor of burnt marijuana.

One of the officers, Officer Beliveau, who had experience and training in drug related crimes, was approaching the passenger side and ordered the defendant to get back inside the vehicle. The defendant sat back in the front passenger seat but his legs protruded outside the vehicle through the door. Beliveau repeated his command, and the defendant repositioned himself fully into the vehicle. "[I]n the passenger compartment of that door," Beliveau then observed a small plastic glassine bag, a copper grinder (commonly used to break up marijuana so that it could be more easily rolled into cigarettes), and cigar wrappers. "[G]reen leafy matter" was observed inside the grinder.

The defendant appeared very nervous. He told Beliveau, who was standing before him, that he felt nauseous and wanted to throw up; he asked the officer to step aside to make room for him to vomit. Beliveau jokingly quipped that he must have smoked some "bad weed," but he did not move away. Beliveau, instead, leaned into the vehicle and addressed the back seat passenger (passenger).

Beliveau asked the passenger and the defendant for identification. The passenger produced identification, but he was also asked by Beliveau if he had ever been arrested or on probation. The passenger responded that he had been arrested for a firearm charge and was on probation. The defendant responded that he did not have any identification on him, but he disclosed his name and date of birth. Beliveau jotted that information in his notebook, and likewise asked the defendant several additional questions, including whether he had any warrants, was on probation, or had ever been arrested. The defendant responded that he had been arrested, but Beliveau could not remember if he disclosed the charge. At that point, which was approximately four minutes from the time the officers approached the vehicle, Beliveau's partner called for backup.

Meanwhile, a woman started approaching the vehicle and asked the officers what was going on. Beliveau told the woman that they were conducting an investigation that would take only a couple of minutes, and he asked her to step back. The woman complied, and the defendant identified her as his mother.

Within a few minutes, two uniformed officers arrived. One of those officers positioned himself near the defendant. Beliveau handed his notebook to his partner, who began checking the defendant's information in the computer located in the cruiser. Beliveau also went around the vehicle to the driver's side rear door and continued his investigation of the passenger. When Beliveau began pat frisking that individual, which was seven to eight minutes after Beliveau and his partner first approached the vehicle, the defendant fled.

Three officers chased after the defendant, while Beliveau remained at the scene. The officers yelled for the defendant to stop, but he kept running. As the officers chased the defendant, there was a group of people on the sidewalk. The defendant ran approximately forty or fifty feet¹ to a side door of 440 Gallivan Boulevard, which was later determined to be his residence. He entered the residence without the use of force or a key. The officers followed the defendant into the residence; there were other individuals in the residence at that time. The defendant ran through the kitchen and the dining room to the front hallway, where the officers tackled him. Once on the ground, without giving the defendant any Miranda warnings, one of the officers asked the defendant why he had run. The defendant responded that "he had a firearm" in his front right pocket. The police retrieved the gun and handcuffed the defendant.

The defendant was arrested and charged with three firearm related crimes² and resisting arrest. Arguing that the initial stop and the incremental progression of police activity violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the defendant moved to suppress the evidence, including the gun. The judge denied the motion with the following single endorsement: "I find the officers had reasonable suspicion to confront the [defendant] and the subsequent actions of the [defendant] provided sufficient probable cause to seize the [defendant]." Prior to the jury-waived trial, the Commonwealth dismissed two of the charges and the defendant stipulated that he possessed a loaded firearm. The defendant was found guilty of carrying a firearm without a license and carrying a loaded firearm without a license. The defendant appeals, arguing that his motion to suppress was erroneously denied. We agree.

Discussion. 1. The stop. The parties agree, correctly, that the defendant was stopped in the constitutional sense when Beliveau ordered him back into the vehicle. See, e.g., Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985) (a person is "seized" by police if, in view of all of the circumstances surrounding the incident, a reasonable person would not believe that he was free to leave); Commonwealth v. Lyles, 453 Mass. 811, 815, 905 N.E.2d 1106 (2009) (same). The defendant argues that his seizure was based only on the odor of burnt marijuana, which did not give rise to a reasonable belief that he possessed a criminal amount of marijuana. See Commonwealth v. Cruz, 459 Mass. 459, 469, 945 N.E.2d 899 (2011) ; Commonwealth v. Rodriguez, 472 Mass. 767, 778, 37 N.E.3d 611 (2015).³ As there was no reasonable suspicion of criminal activity, the defendant asserts, the seizure was unconstitutional and any evidence seized thereafter should have been suppressed. See Cruz, supra ; Rodriguez, supra. We disagree.

While the defendant correctly asserts that there was no reasonable suspicion for his possession of a criminal amount of marijuana, there was overwhelming evidence of civil marijuana possession. Compare Rodriguez, supra (where "a police officer actually observed an infraction—such as a person walking through a park smoking what appeared to be a marijuana cigar or cigarette—" the officer may stop the offender to issue a citation and confiscate the item). In addition to the odor of burnt marijuana, the officers noticed that the interior of the vehicle, in which the defendant sat, was filled with so much smoke that it was condensing on the rear window. Also, before the defendant was ordered back into the vehicle, police had observed a plume of smoke that smelled like marijuana escape through the open door. Those observations, in combination with the officer's experience that such smoke occurs from individuals smoking marijuana, provided probable cause to believe that the individuals occupying the vehicle were presently in the process of consuming marijuana.⁴ Accordingly, the police could lawfully detain the defendant long enough to issue a citation and confiscate the marijuana. See Cruz, supra at 469 n.16, 945 N.E.2d 899 ; Commonwealth v. Locke, 89 Mass.App.Ct. 497, 501, 51 N.E.3d 484 (2016).

The defendant's next challenge, that the length and nature of the stop was longer and more intrusive than necessary for the issuance of a civil citation, is arguably a closer question. Once the defendant provided his name and date of birth, Beliveau did not proceed directly to confirm the defendant's identity for issuance of a citation.⁵ Rather, Beliveau engaged in a series of unrelated questions pertaining to whether the defendant had a criminal history. The defendant was asked whether he had ever been arrested, had any warrants, or was on probation. Those probing questions into the defendant's criminal history during a stop grounded in only a civil violation for marijuana possession are at odds with the Supreme Judicial Court's directive that such an infraction is "no longer ‘a serious infraction worthy of criminal sanction,’ and that those who commit this offense should be treated differently from other drug offenders." Rodriguez, supra at 777, 37 N.E.3d 611, quoting from Cruz, 459 Mass. at 471, 945 N.E.2d 899. In addition, those questions, when asked of the passenger, resulted in police calling for backup and a further delay in the civil citation process while awaiting the arrival of additional officers.

However, in this particular case, because the questioning produced no incriminating evidence and was brief (the uniformed officers arrived within minutes of the call), we are not inclined to conclude at this time that it resulted in unreasonable delay. When the defendant fled, only seven to eight minutes had passed from the arrival of Beliveau and his partner, and the police were still in the process of confirming the defendant's identifying information. We conclude, therefore, that the duration of the stop did not exceed...