Commonwealth v. Martin

457 Mass. 14

927 N.E.2d 432

COMMONWEALTHv.Jamal MARTIN.

No. SJC-10420.

Supreme Judicial Court of Massachusetts Suffolk.

Submitted Nov. 5, 2009.

Decided May 27, 2010.

Wendy H. Sibbison (Pamela S. Segre with her) for the defendant.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Brownlow M. Speer, Committee for Public Counsel Services, & James F. Tierney, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

John Reinstein, Charles Ogletree, Robert J. Smith, Harry T. Daniels, & Kevin S. Prussia, Boston, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

After a jury-waived trial in the Central Division of the Boston Municipal Court Department, the defendant, Jamal Martin, was convicted of carrying a firearm without a license, in violation of G.L. c. 269, § 10 ( a ); carrying a loaded firearm, in violation of G.L. c. 269, § 10 ( n ); and assault and battery on a police officer, in violation of G.L. c. 265, § 13D.¹ He appealed from the denial of his pretrial motion to suppress evidence and statements, claiming that he was subjected to an unlawful patfrisk violative of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.² See Commonwealth v. Martin, 73 Mass.App.Ct. 526, 527, 899 N.E.2d 869 (2009). In addition, he challenged his convictions, asserting that the trial judge ³ erred in admitting ballistics certificates and excluding exculpatory evidence to rebut them. Id. A divided panel of the Appeals Court rejected his arguments and affirmed his convictions. Id. at 538, 899 N.E.2d 869. We granted the defendant's application for further appellate review. For the reasons that follow, we vacate the order denying the defendant's motion to suppress. In view of our conclusion, we need not consider the defendant's arguments pertaining to the purported errors at trial.

Background.⁴ We summarize the motion judge's findings of fact, with minor supplementation from uncontested testimony, noting that all of his findings are supported by the evidence he found credible.⁵ Consequently, we accept them. See Commonwealth v. Sparks, 433 Mass. 654, 656, 746 N.E.2d 133 (2001), and cases cited. On October 8, 2006, at approximately 10:30 a.m., Boston police Officer Ismael Henriquez and his partner were patrolling the Woodrow Avenue area of the Dorchester section of Boston. Officer Henriquez considered the area a “high crime” area, explaining that he had previously participated in arrests for drugs and had knowledge of “numerous shootings” in the area. The officers, who were dressed in plain clothes and were driving in an unmarked vehicle, were looking for a particular juvenile who lived in the neighborhood so they could execute a warrant for his arrest.

While driving, the officers observed a young man, the defendant, wearing a sweatshirt with the hood up around his face. The defendant was walking on Wollaston Terrace toward Woodrow Avenue in the opposite direction from which the police were traveling. The officers could not see the defendant's face, but thought he might be the youth for whom they were looking.

The officers turned around and drove alongside the defendant, who ignored them and continued walking with his head down. The officers rolled down a window, identified themselves as police officers, and asked the defendant his name. After some hesitation, the defendant responded, “Jamal Daly.” This name was not the name of the juvenile for whom they were looking, and the defendant was taller and stockier than that juvenile. The officers asked the defendant for his date of birth; he replied, “September, 1987.” When they asked him for his age, he stated, “Seventeen.” ⁶ Because the officers believed the defendant was lying about either his birth date or age, Officer Henriquez alighted from the vehicle and approached the defendant. Officer Henriquez's partner remained inside the vehicle. The defendant was nervous and took a few steps back. Officer Henriquez was able to see the defendant's face and knew he was not the juvenile for whom they had been looking.

Officer Henriquez asked the defendant if he had any weapons. When Officer Henriquez received no answer, he attempted to pat frisk the defendant, informing him that “for safety,” he was going to conduct a patfrisk. The defendant pushed the officer's hands away, and stated, “You can't touch me.” Officer Henriquez told the defendant to “calm down” and proceeded with the patfrisk, which revealed a loaded gun. The defendant was then placed in handcuffs and asked if he had a license to carry the firearm. He stated that he did not. The defendant was arrested and brought to a police station.

During the defendant's booking, he was allowed to make a telephone call. Officer Henriquez overheard the defendant say that he had “just got locked up for the gun he had found.” The officers then learned that there was an outstanding warrant for the defendant's arrest. He was eventually charged for his possession of the firearm and for assault and battery on a police officer, the latter charge based on his brushing away of Officer Henriquez's hands.

The motion judge first acknowledged that, prior to the defendant's pushing Officer Henriquez's hands away at the time of the initial attempted patfrisk, there was no constitutional basis to search the defendant. However, he reasoned that the defendant's actions of pushing Officer Henriquez's hands away “provided probable cause to arrest the defendant for the crime of assault and battery.” Because probable cause to arrest existed, the judge determined that Officer Henriquez was permitted to search the defendant for weapons. The motion judge relied on the principles that the search may precede the formal arrest Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555 (1992), and what constitutes an arrest is based on objective circumstances Commonwealth v. Avery, 365 Mass. 59, 65, 309 N.E.2d 497 (1974). He also noted, “If suspects were legally permitted to resist searches or arrests they believed illegal, chaos and violence would supplant the rule of law.” Based on these principles, the motion judge concluded that the officer's search and seizure of the defendant “objectively was an arrest and the seizure of the firearm [was] constitutional.”

By a divided panel, the Appeals Court affirmed the motion judge's ruling, but on different grounds. Commonwealth v. Martin, 73 Mass.App.Ct. 526, 529, 899 N.E.2d 869 (2009). The Appeals Court initially determined that the seizure of the defendant did not take place until Officer Henriquez decided to pat frisk him. Id. at 531-532, 899 N.E.2d 869. Relying on Commonwealth v. Fraser, 410 Mass. 541, 573 N.E.2d 979 (1991) ( Fraser ), the Appeals Court concluded that the patfrisk was lawful, reasoning that Officer Henriquez had a legitimate reason for being in the immediate proximity of the defendant, see Fraser, supra at 544-545 & n. 4, 573 N.E.2d 979, and had a reasonable belief that the defendant was armed and dangerous, see id. at 544, 573 N.E.2d 979, citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ( Terry ). With respect to its latter conclusions, the Appeals Court acknowledged that it was a “close question,” but held that the combination of four factors provided a sufficient basis for the officer's belief that the defendant posed a danger to him. Commonwealth v. Martin, supra at 533, 899 N.E.2d 869. The four factors were as follows: (1) the area was considered to be a high crime area; (2) the defendant's conduct of initial hesitation and nervousness; (3) the defendant lied about when he was born or his age; and (4) the ambiguity created by the defendant's silence in response to Officer Henriquez's question concerning whether he had any weapons. Id. at 533-534, 899 N.E.2d 869. The dissent, however, did not find the combination of these factors to be persuasive, and reasoned that, “even under the teachings of [ Fraser and its progeny], there simply was not enough here to question the defendant further after the police realized he was not the person they were looking for. This is a case where ‘the police ... turn[ed] a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion.’ ” Id. at 538, 899 N.E.2d 869 (Brown, J., dissenting), quoting Commonwealth v. Barros, 435 Mass. 171, 178, 755 N.E.2d 740 (2001).

Discussion. While, absent clear error, we adopt the factual findings of the motion judge, we “independently determine the correctness of the judge's application of constitutional principles to the facts as found.”

Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004). “It is the Commonwealth's burden to demonstrate that the police officers' stop and frisk of the defendant was within constitutional limits.” Commonwealth v. DePeiza, supra. For the reasons that follow, the Commonwealth did not meet its burden in this case.

We begin by identifying the moment the defendant was seized. See id. Here, we agree with the Appeals Court Commonwealth v. Martin, supra at 530-532, 899 N.E.2d 869, that the defendant was seized when Officer Henriquez first attempted to pat frisk the defendant. See Commonwealth v. DePeiza, supra at 371, 868 N.E.2d 90 (defendant seized when police officers announced their intention to pat frisk him). Up until that time, the officers were engaged in a consensual interaction with the defendant for which they required no constitutional justification.⁷ See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (“law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the...