Commonwealth v. Warren

87 Mass.App.Ct. 476

31 N.E.3d 1171

COMMONWEALTH

v.Jimmy WARREN.

No. 13–P–820.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 2, 2014.

Decided June 10, 2015.

Nelson P. Lovins, Woburn, for the defendant.

Michael Glennon, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., CYPHER, GREEN, RUBIN, & AGNES, JJ.¹

Opinion

GREEN, J.

On appeal from his conviction of carrying a firearm, the defendant claims error in the denial of his motion to suppress a firearm. The firearm was recovered near the sidewalk on which the defendant ran from police who sought to question him concerning a breaking and entering that had occurred at a nearby residence earlier that evening. At issue is whether there was

reasonable suspicion to justify the directive to stop issued by one of the officers during his pursuit of the defendant. We conclude that reasonable suspicion justified the stop, and therefore affirm.

Background. We summarize the facts from the motion judge's careful findings, supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the motion judge.² See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

On Sunday, December 18, 2011, Boston police Officer Luis Anjos was on duty and in uniform, traveling alone in a marked police cruiser, in area B-2 in the Roxbury section of Boston. At 9:20 p.m. he received a radio call “that there was a breaking and entry in progress and the suspects were fleeing the area.” The dispatcher gave “several paths of flight” from Hutchings Street—where the breaking and entering had occurred—one toward Seaver Street and one toward Jackson Square.³

Anjos went to the scene of the breaking and entering and spoke with the victims, a teenage male and his foster mother. The male victim told Anjos that he had left his room to go to the bathroom and that, when he was returning, his foster mother told him that she heard people in his bedroom. The male victim opened his bedroom door and saw a “black male jumping out of the window.” The man was wearing “a red hoodie” (hooded sweatshirt) and, when the male victim ran to the window to look outside, he saw “three black males, one was wearing a red hoodie and the other two [were] wearing all dark clothing.” One of the two in dark clothing was wearing a “black hoodie,” and the male victim could not be more specific about the third man except to say that he was “definitely wearing dark clothing.” The men ran down Hutchings Street—which could have led them either to Seaver Street or to Walnut Avenue. The male victim told the officer that his Apple MacBook and five baseball hats were missing. Both victims gave the officer their names, as well as their dates of birth.

Anjos spoke to the male victim and his foster mother for approximately eight to twelve minutes and broadcast the description he had been given. He then began to drive around the area to see if he could find anyone who fit that description. It was a cold

night (twenty-three degrees Fahrenheit), and the officer did not see anyone walking on the adjoining or connecting streets. After about fifteen to eighteen minutes, as Anjos began to head back to the police station, and while passing some basketball courts in the area of Martin Luther King Boulevard, he saw “two black males walking up facing [him] and they were wearing all dark clothing.” At least one was wearing a hoodie.⁴

Anjos rolled down the passenger's side window of his cruiser and yelled out, “Hey guys, wait a minute.” He still was sitting in the cruiser and had activated neither his lights nor his siren at any point. The two men “made eye contact” with Anjos, looking in his direction, and then turned around and “quickly started jogging” in the direction of Dale Street, down a path through a park. Anjos had worked in area B–2 for ten years and was familiar with the park; he had responded to calls for assaults and batteries, and firearm arrests, among others. He described the park as “a pretty busy area in the summertime.” He also testified, “There are a lot of gang members from the local area that hang out there.... Once you get inside [the park], you've got a cover so nobody can see you unless you walk in on them.”

After the two men jogged into the park, Anjos radioed to dispatch that men fitting the description were traveling through the park towards Dale Street.⁵ Anjos saw them later, after they were stopped, and he identified the defendant in court as one of the two.

Boston police Officer Christopher Carr responded with another officer, David Santosuosso, to Anjos's request for help. Carr had been a Boston police officer for seven years and had received special training from the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives “on characteristics of an armed gunman,” and he had made several firearm arrests himself. Carr heard Anjos broadcast a description of “several males that matched a description from a previous [breaking and entering]”; Carr and Santosuosso were nearby and arrived in a matter of seconds. When they did, they saw “two males matching the description that Officer Anjos had broadcast walking through the park.” Both men were wearing dark clothing. Carr also was familiar with the

park and testified that “recently there's been, I want to say, at least two people shot by the park. Many rounds recovered. Shots fire[d] calls.”

Carr pulled the cruiser to the side of the street, and both he and Santosuosso got out of the car. No lights or sirens were activated. Carr was closest to the two men, and he started to speak to them; his firearm was not drawn. He “started to say, ‘Hey fellas, can I ...’ and ... only got about two words out, and the suspect made a right hand turn, one eighty, and took off back into the park.” The other man remained standing still.

Officer Carr ran after the young man, who appeared to him to be sixteen or seventeen years old (“[d]efinitely under the age of twenty-one”), losing sight of him “for a couple of seconds” at one point. Carr eventually saw the man run into the backyard of a residence on Wakullah Street. At one point during his pursuit, Carr saw that the man was “clutching the right side of his pants as he was running up the hill back into the park.”⁶ Carr shouted at the man to stop, but the man continued running. Eventually, Carr apprehended the man, later identified in court as the defendant, Jimmy Warren, and ordered him to get down on the ground.⁷ There was a brief struggle, and the defendant was placed under arrest.

A “Walther .22 caliber firearm” was recovered “less than five yards off the sidewalk on the inside of the fence of [the residential yard where the defendant was arrested].” The defendant and his companion were the first individuals whom any of the officers encountered after hearing the radio call about a breaking and entering.

Discussion. “In reviewing a decision on a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear

error “but conduct an independent review of [her] ultimate findings and conclusions of law.” ’ ” Commonwealth v. Delacruz, 463 Mass. 504, 512, 976 N.E.2d 788 (2012), quoting from Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). As the motion judge noted, all of the police officers involved had reliable information that a serious crime had taken place. Two victims gave their names and dates of birth and were interviewed at their residence regarding a home invasion that just had taken place. See Commonwealth v. Anderson, 461 Mass. 616, 622, 963 N.E.2d 704, cert. denied, ––– U.S. ––––, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012), and cases cited. (“ ‘An eyewitness's report to police of [a] recent, firsthand observation satisfies the basis of knowledge prong.’ Commonwealth v. Depina, 456 Mass. 238, 243 [, 922 N.E.2d 778 (2010) ]. See Commonwealth v. Costa, 448 Mass. 510, 515 [, 862 N.E.2d 371 (2007) ].” In addition, such a report also satisfies the reliability prong. See Commonwealth v. Costa, supra at 516, 862 N.E.2d 371 ; Commonwealth v. Love, 56 Mass.App.Ct. 229, 232 [, 775 N.E.2d 1264 (2002) ] ).

Equipped with information about the crime, and seeing two young men who matched the description he had been given minutes earlier, in a location that roughly corresponded to the distance the perpetrators might have traveled by foot in the interim, Officer Anjos properly sought to speak with the two young men. At that time, he was sitting in a police cruiser, with no lights or siren activated and no weapon displayed, and his statement, “Hey guys, wait a minute,” was not a stop. As observed in Commonwealth v. Martin, 467 Mass. 291, 303, 4 N.E.3d 1236 (2014), “Although the record does not establish the precise words [the detective] used in addressing the defendant, the motion judge found that [the detective] had ‘called out to [the defendant] to hold up or stop we want to speak with you or words to that effect.’ These words more closely resemble a ‘request to speak with the defendant and ask questions,’ Commonwealth v. Nestor N., 67 Mass.App.Ct. 225, 228–229, 852 N.E.2d 1132 (2006), which does not rise to the level of a seizure, than a ‘command to stop,’ id., which is an ‘intrusion of constitutional dimensions that requires justification.’ Commonwealth v. Gomes, 453 Mass. 506, 510, 903 N.E.2d 567 (2009). See, e.g., Commonwealth v. Lopez, 451 Mass. 608, 610, 887 N.E.2d 1065 (2008) (statement ‘can I speak with you’ not seizure); Commonwealth v. Barros, 435 Mass. 171, 172, 173–174, 755 N.E.2d 740 (2001) (statement ‘Hey you ... I want to speak with you’ was not seizure); Commonwealth v. Stoute, [422 Mass. 782, 789, 665 N.E.2d 93 (1996) ] (police request that suspect

‘hold up a minute’ not seizure).”⁸ The fact that the two men in the present case made eye contact and then turned and jogged away from Officer Anjos, and that the defendant later turned and ran away from Officer Carr, provides further support for the...