Commonwealth v. Warren

475 Mass. 530

58 N.E.3d 333

COMMONWEALTH

v.Jimmy WARREN.

SJC 11956.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 9, 2016.

Decided Sept. 20, 2016.

Nelson P. Lovins, Woburn, for the defendant.

Michael Glennon, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.¹

HINES, J.

After a jury-waived trial in the Boston Municipal Court, the defendant, Jimmy Warren, was convicted of unlawful possession of a firearm, G.L. c. 269, § 10 (a ).² The complaint arose from the discovery of a firearm after an investigatory stop of the defendant in connection with a breaking and entering that had occurred in a nearby home approximately thirty minutes earlier. Prior to trial, the defendant filed a motion to suppress the firearm and statements made after his arrest, arguing that police lacked reasonable suspicion for the stop. The judge who heard the motion denied it, ruling that, at the time of the stop, the police had reasonable suspicion that the defendant was one of the perpetrators of the breaking and entering. The defendant appealed, claiming error in the denial of the motion to suppress.³ The Appeals Court affirmed, Commonwealth v. Warren, 87 Mass.App.Ct. 476, 477, 31 N.E.3d 1171 (2015). We allowed the defendant's application for further appellate review and conclude that because the police lacked reasonable suspicion for the investigatory stop, the denial of the motion to suppress was error. Therefore, we vacate the conviction.

Background. We summarize the facts as found by the judge at the hearing on the motion to suppress, supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge. Commonwealth v. Melo, 472 Mass. 278, 286, 34 N.E.3d 289 (2015). On December 18, 2011, Boston police Officer Luis Anjos was patrolling the Roxbury section of Boston in a marked police cruiser when, at 9:20 P.M. , he received a radio call alerting him to a breaking and entering in progress on Hutchings Street, where the suspects were fleeing the scene. The dispatcher gave several possible paths of flight from Hutchings Street, one toward Seaver Street and the other toward Jackson Square, locations that are in the opposite direction from one another.⁴

Anjos went to the scene and spoke to the victims, a teenage male and his foster mother. The male reported that as he was leaving the bathroom in the residence, his foster mother said that she heard people in his bedroom. The victim opened his bedroom door and saw a black male wearing a “red hoodie” (hooded sweatshirt) jump out of the window. When the victim looked out the window he saw two other black males, one wearing a “black hoodie,” and the other wearing “dark clothing.” When the victim checked his belongings, he noticed that his backpack, a computer, and five baseball hats were missing. The victim saw the three males run down Hutchings Street, but he could only guess which direction they took thereafter. Anjos peered out the window but could only see twelve to fifteen yards up the street to the intersection of Hutchings and Harold Streets. After speaking to the victims for approximately eight to twelve minutes, Anjos left the scene and broadcast the descriptions of the suspects.

For the next fifteen minutes or so, Anjos drove a four to five block radius around the house, searching for persons fitting the suspects' descriptions. Because of the cold temperature that night, Anjos did not come across any pedestrians as he searched the area. At around 9:40 P.M., Anjos headed back toward the police station. While on Martin Luther King Boulevard, he saw two black males, both wearing dark clothing, walking by some basketball courts near a park. One male wore a dark-colored “hoodie.” Neither of the two carried a backpack. Anjos did not recognize either of the males, one of whom was the defendant, as a person he had encountered previously in the course of his duties as a police officer.

When Anjos spotted the defendant and his companion, he had a hunch that they might have been involved in the breaking and entering. He based his hunch on the time of night, the proximity to the breaking and entering, and the fit of the males to the “general description” provided by the victim. He decided “to figure out who they were and where they were coming from and possibly do [a field interrogation observation (FIO) ].”⁵ He rolled down the passenger's side window of the cruiser and “yelled out,” “Hey guys, wait a minute.” The two men made eye contact with Anjos, turned around, and jogged down a path into the park.

After the two men jogged away, Anjos remained in the police cruiser and radioed dispatch that three men⁶ fitting the descriptions provided by the victim were traveling through the park toward Dale Street. Boston police Officers Christopher R. Carr and David Santosuosso, who had heard the original broadcast of the breaking and entering, were very near Dale Street and headed in that direction. Arriving quickly, Carr and Santosuosso observed two males matching Anjos's description walking out of the park toward Dale Street. Carr parked the cruiser on Dale Street and both officers approached the defendant and his companion as they left the park. The defendant and his companion walked with their hands out of their pockets. Carr saw no bulges in their clothing suggesting the presence of weapons or contraband.

Carr was closer to the two males, approximately fifteen yards away. When he uttered the words, “Hey fellas,” the defendant turned and ran up a hill back into the park. His companion stood still. Carr ordered the defendant to stop running. After the command to stop, Carr observed the defendant clutching the right side of his pants, a motion Carr described as consistent with carrying a gun without a holster.⁷

Ignoring the command to stop, the defendant continued to run and eventually turned onto Wakullah Street. Carr lost sight of the defendant for a few seconds before catching up with him in the rear yard of a house on Wakullah Street. Carr drew his firearm, pointed it at the defendant, and yelled several verbal commands for the defendant to show his hands and to “get down, get down, get down.” The defendant moved slowly, conduct that Carr interpreted as an intention not to comply with his commands. After a brief struggle, Carr arrested and searched the defendant but found no contraband on his person. Minutes after the arrest, police recovered a Walther .22 caliber firearm inside the front yard fence of the Wakullah Street house. When asked if he had a license to carry a firearm, the defendant replied that he did not.

Discussion. The defendant challenges the judge's denial of the motion to suppress, claiming error in the judge's ruling that at the time of the stop on Dale Street, the police had a sufficient factual basis for reasonable suspicion that the defendant had committed the breaking and entering.⁸ In sum, he argues that the police pursued him with the intent of questioning him, while lacking any basis for doing so. Accordingly, he claims that any behavior observed during the pursuit and any contraband found thereafter must be suppressed.

1. Standard of review. “In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing” (citation omitted). Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004). However, “[w]e review independently the application of constitutional principles to the facts found.” Id. We apply these principles in deciding whether the seizure was justified by reasonable suspicion that the defendant had committed the breaking and entering on Hutchings Street. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

2. Reasonable suspicion. The judge ruled, and the Commonwealth concedes, that the seizure occurred when Officer Carr ordered the defendant to stop running and pursued him onto Wakullah Street. If a seizure occurs, “we ask whether the stop was based on an officer's reasonable suspicion that the person was committing, had committed, or was about to commit a crime.” Commonwealth v. Martin, 467 Mass. 291, 303, 4 N.E.3d 1236 (2014). “That suspicion must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a hunch.” Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007), quoting Scott, 440 Mass. at 646, 801 N.E.2d 233. The essence of the reasonable suspicion inquiry is whether the police have an individualized suspicion that the person seized is the perpetrator of the suspected crime. Commonwealth v. Depina, 456 Mass. 238, 243, 922 N.E.2d 778 (2010) (stop is lawful only if “information on which the dispatch was based had sufficient indicia of reliability, and ... the description of the suspect conveyed by the dispatch had sufficient particularity that it was reasonable for the police to suspect a person matching that description”).

According to the judge's ruling, the following information established reasonable suspicion for the investigatory stop: the defendant and his companion “matched” the description of two of the three individuals being sought by the police; they were stopped in close proximity in location (one mile) and time (approximately twenty-five minutes) to the crime; they were the only persons observed on the street on a cold winter night as police canvassed the area; and they evaded contact with the police, first when both men jogged away into the park, and later when the defendant fled from Carr after being approached on the other side of the park.⁹

We review the judge's findings as a whole, bearing in mind that “a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief” that a person...