Commonwealth v. Rucker

2006-MBAR-463

Commonwealth v. Kyle Rucker

No. 0600530

Superior Court of Massachusetts

November 27, 2006

Opinion No.: 96595

As-is Docket Number: 06-00530

Venue Essex

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lowy, David A., J.

Opinion Title: FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

The defendant, Kyle Rucker ("Rucker"), is charged with possession of a firearm under G.L.c. 269, §10G, and possession of ammunition under G.L.c. 269, §10(h). He now moves to suppress the firearm found on his person during a pat-frisk search, arguing that the police lacked reasonable suspicion to believe that he was involved in criminal activity or that he was armed and dangerous. After hearing and based upon the findings of fact and conclusions of law discussed below, the defendant's motion to suppress is DENIED.

FINDINGS OF FACT

At approximately one o'clock in the afternoon on February 14, 2006, Officer Michael DiMeglio ("Officer DiMeglio") of the Lynn Police Department was working at the police station when he heard a call over his police radio from Officer John Dean ("Officer Dean") that two shots had been fired in the downtown area of Lynn. Shortly thereafter, Sgt. Peter Holey ("Sgt. Holey"), also of the Lynn Police Department, radioed that he had heard two shots from the direction of Broad Street in downtown Lynn. This area of Lynn is, for the most part, a commercial area there are, for example, a Walgreens, a Chinese restaurant, a wireless cell phone store, and a social security office in the immediate vicinity. The court credits Officer DiMeglio's testimony that it is a high crime area, where he has made a number of arrests for violent offenses in the past. Officer Dean and Sgt. Holey (collectively "the reporting officers") had only heard the gun shots, and, therefore, could not provide a description of any possible suspects. Officer DiMeglio, who was dressed in uniform at the time, left the police station and entered his cruiser to investigate the report. The police station is not located far from the area where the shots had been fired, so Officer DiMeglio arrived relatively quickly to the general vicinity. As Officer DiMeglio was driving down Union Street, near where the reporting officers believed the shots had been fired, he saw an individual, Jason Welch ("Welch"), who he knew was under indictment for killing a woman in a nearby house, walking down the sidewalk with Rucker.

Officer DiMeglio estimated that there were between twenty and fifty people near where Welch and Rucker were walking. After Officer DiMeglio saw Welch, he turned on his police lights, made a U-turn, and drove back along Union Street. He pulled his cruiser diagonally into a parking spot next to Welch and Rucker, radioed to dispatch that he was exiting the cruiser to question two individuals on foot, and asked Rucker and Welch to "hold up for a second." Welch stopped, but Rucker asked if he was all set to go. Officer DiMeglio told him that he was not free to leave, and he ordered them to take their hands out of their jacket pockets, and to put them on the wall of the nearby Chinese restaurant. Initially, they both complied; shortly after placing his hands on the wall, however, Rucker began to move his hands back toward his jacket pocket. Officer DiMeglio ordered Rucker to put both of his hands back on the wall, and he began to unholster his sidearm. When Rucker complied, Officer DiMeglio kept his sidearm in the holster.

At this point, Officer O'Connell, also of the Lynn Police Department, arrived on the scene. He was on patrol nearby and had been dispatched to investigate the report of shots fired. In addition to the information that Officer DiMeglio had heard over the police radio, Officer O'Connell heard a later transmission from Officer Haggarty that a meter maid had told him that the shots were fired around Greene Street.^[1] When he heard over the radio that Officer DiMeglio was out of his cruiser and with two suspects, he drove to assist him. After Officer O'Connell arrived, Officer DiMeglio frisked Welch, while Officer O'Connell frisked Rucker. Officer O'Connell found a handgun in Rucker's front pocket, but Officer DiMeglio did not find a weapon on Welch. The officers then placed Rucker under arrest.

DISCUSSION

The defendant asserts that this court must suppress the firearm found by the police while conducting a pat-frisk search of his person because the officers did not have either probable cause or a reasonable and articulable suspicion to believe that he was involved in any criminal activity.

I. Reasonable Suspicion to Detain for Criminal Activity

Police may stop individuals on the street, absent probable cause to make an arrest, if they reasonably believe that the individuals may be involved in criminal activity, and they may conduct a limited pat-frisk search for weapons if they believe them to be armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 30 (1968). Thus, a police officer may pat-frisk an individual if there are specific facts justifying a reasonable inference that would warrant a prudent person in believing that his or her safety, or the safety of others, is in danger. See id. at 27. The degree of intrusion into the individuals' liberty interest must also be proportionate in time, space, and force to the degree of suspicion that warranted the intrusion. See Commonwealth v. Borges, 395 Mass. 788, 794 (1985).

Here, Officer DiMeglio seized Rucker when he got out of his cruiser and told him that he was not free to leave. See United States v. Mendenhall, 446 U.S. 544, 552 (1980) (holding that an individual is seized when, by a show of authority, an officer restrains their liberty); see also Commonwealth v. Stoute, 422 Mass. 782, 786 (1996). Thus, the Commonwealth must justify this intrusion of Rucker's liberty interest. See Terry, 392 U.S. at 19. In this case, Rucker and Welch were walking together, in a high crime area, in the vicinity where shots had been fired, and Officer DiMeglio recognized Welch as being under indictment for shooting a woman who lived nearby. On these facts, the officer had reasonable suspicion to detain Welch under Terry. See Stoute, 422 Mass. at 791; see also Commonwealth v. Dasilva, 66 Mass.App.Ct. 556, 560 (2006) (noting that the knowledge of the defendant's criminal reputation is an important element to justify an investigatory stop); Commonwealth v. Grinkley, 44 Mass.App.Ct. 62, 74 (1997).^[2] At the time of the seizure, however, Officer DiMeglio knew nothing of Rucker, other than that he was walking down the sidewalk with Welch. He did not have a description of a possible suspect, was unaware of any criminal history of the defendant, and, therefore, he did not have reasonable suspicion to believe that Rucker was involved in the shooting. See Commonwealth v. Quezada, 67 Mass.App.Ct. 693, 697 (2006); Commonwealth v. Dasilva, 56 Mass.App.Ct. 220, 226-28 (2002). Thus, if the firearm is to be admitted as the fruit of a lawful pat-frisk, the Commonwealth must rely on exigent circumstances. See Commonwealth v. Foster, 48 Mass.App.Ct. 671, 673-75 (2000) (citing cases).

II. Pat-Frisk of an Individual who Might be Armed and Dangerous

Police may detain and pat-frisk individuals, even without reasonable and articulable suspicion of criminal activity, if certain exigent circumstances exist. See Commonwealth v. DePeiza, 66 Mass.App.Ct. 398, 407 (2006) (noting that "[p]olice officers have a duty to investigate potential dangers to the public; and an investigating officer who comes into proximity with the defendant need not place his safety at risk"); see also Foster, 48 Mass.App.Ct. at 673-75 (2000). An inchoate hunch, however, that is not supported by particularized facts, is not enough to justify a seizure. See Terry, 392 U.S. at 27; DePeiza, 66 Mass.App.Ct. at 407. For example, when executing an arrest warrant, officers may frisk people in the general vicinity if they have reason to believe that a particular person may be armed and dangerous. See Commonwealth v. Wing Ng, 420 Mass. 236, 237-38 (1995) (holding that officers could reasonably believe that the brother of a dangerous suspect they were arresting, who was a passenger in a car that the suspect was driving, could be armed and dangerous).^[3] During a routine traffic stop, an officer may also order occupants to get out of the car if the officer has a reasonable belief that the situation is dangerous. See Commonwealth v. Gonzalves, 429 Mass. 658, 662-63 (1999). The officers may not, however, turn such a narrow protective sweep into a generalized search for weapons or contraband. See Ybarra v. Illinois, 444 U.S. 85, 94 (1979) (holding that police executing a search warrant in a bar could not permissibly pat-frisk patrons when they did not have a reasonable belief that their safety was in danger). Thus, as the Appeals Court has recently reaffirmed, "[a] police officer may stop and frisk an individual for the officer's own safety and the safety of others if the circumstances reasonably suggest that the person is armed and potentially dangerous." Commonwealth v. Nester N., 67 Mass.App.Ct. 225, 229-30 (2006).

In determining whether a particular seizure is reasonable, the court must balance "the intrusion on the individual's Fourth Amendment interests against... [the] promotion of legitimate governmental interests." Maryland v. Buie, 494 U.S. 325, 331 (1990). Massachusetts courts look at the totality of the circumstances when determining whether an officer has a reasonable belief that a defendant is armed and dangerous, thereby justifying a protective frisk. See Commonwealth v. Fisher, 54 Mass.App.Ct 41, 44 (2002). Such factors include whether there is an imminent danger to the police or the public, the...