Commonwealth v. Edwards , 476 Mass. 341 ( 2017 )

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SJC-11989
COMMONWEALTH vs. JOSHUA EDWARDS.
Suffolk. September 6, 2016. - January 20, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Constitutional Law, Search and seizure, Investigatory stop,
Reasonable suspicion. Search and Seizure, Motor vehicle,
Threshold police inquiry, Reasonable suspicion. Threshold
Police Inquiry. Firearms. Alcoholic Liquors, Possession
of opened bottle. Beverage Containers.
Indictments found and returned in the Superior Court
Department on April 23, 2013.
A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. After review by the Appeals Court,
the Supreme Judicial Court granted leave to obtain further
appellate review.
Greg L. Johnson for the defendant.
Matthew T. Sears, Assistant District Attorney, for the
Commonwealth.
2
BOTSFORD, J. The defendant, Joshua Edwards, has been
indicted for multiple offenses, including firearms offenses,
with which he was initially charged following the seizure and
search of a motor vehicle he had been driving. Before trial, he
moved to suppress evidence seized during the search of the
vehicle, invoking the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights. After an evidentiary hearing, a Superior Court judge
allowed the defendant's motion. A single justice of this court
allowed the Commonwealth leave to pursue an interlocutory appeal
and reported the case to the Appeals Court. See Mass. R. Crim.
P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The
Appeals Court reversed in an unpublished memorandum and order
issued pursuant to its rule 1:28. Commonwealth v. Edwards, 87
Mass. App. Ct. 1133 (2015). We granted the defendant's
application for further appellate review. Recognizing that this
is an exceedingly close case, we conclude that the stop was
predicated on reasonable suspicion of criminal activity and
therefore reverse the motion judge's order allowing the motion
to suppress.
Factual background. One witness, Boston police Officer
David Lanteigne, testified at the hearing on the motion to
suppress. In addition, a number of photographs, documents, and
3
police radio transmissions, as well as a recording of a 911
call, were received in evidence. In reviewing a judge's
decision on a motion to suppress, we "accept the judge's
subsidiary findings of fact absent clear error, but conduct an
independent review of the judge's ultimate findings and
conclusions of law." Commonwealth v. Washington, 449 Mass. 476,
480 (2007). Without "detract[ing] from the judge's ultimate
findings," Commonwealth v. Jessup, 471 Mass. 121, 127-128
(2015), we supplement his factual findings with "evidence from
the record that 'is uncontroverted and undisputed and where the
judge explicitly or implicitly credited the witness's
testimony'" (citation omitted). Commonwealth v. Jones-Pannell,
472 Mass. 429, 431 (2015).1
1
The judge's factual findings were prefaced with the
statement that "[t]he [c]ourt finds that Officer Lanteigne was
credible and credits his testimony to the extent it is
consistent with and reflected in express findings stated in this
memorandum. The [c]ourt does not credit any testimony by
Lanteigne that goes beyond or is inconsistent with the court's
2
findings." We have listened to the recording of the 911
call that was admitted in evidence and played during the
suppression hearing. Some portions of the recording are
inaudible or unclear. We discern no clear error in the
subsidiary findings that the judge made with respect to the
recording, and therefore accept them. See Commonwealth v.
Jewett, 471 Mass. 624, 628 (2015). We make no additional
findings with respect to the recording.
4
On March 17, 2013, at approximately 1:30 A.M., the Boston
police received a 911 call.2 The caller identified himself by
name, Jabari Wattley, and told the operator that he could see a
man standing in the street holding a gun. Wattley further
stated that he had seen the man drive off in a black Infiniti
motor vehicle, return and park on Armandine Street (in the
Dorchester section of Boston), get out of the vehicle holding a
gun in his hand, and then get back into the vehicle.3 He
informed the operator that he knew the man, identified him as
the defendant, Joshua Edwards, and said that Edwards was not
threatening anyone.
2
We have listened to the recording of the 911 call that was
admitted in evidence and played during the suppression hearing.
Some portions of the recording are inaudible or unclear. We
discern no clear error in the subsidiary findings that the judge
made with respect to the recording, and therefore accept them.
See Commonwealth v. Jewett, 471 Mass. 624, 628 (2015). We make
no additional findings with respect to the recording.
3
The dispatcher's broadcast added, "He's circling the area.
He's been driving around." The motion judge properly predicated
his findings on the information provided by the 911 caller
rather than the dispatcher's comments. See Commonwealth v.
Lopes, 455 Mass. 147, 155 (2009) (Commonwealth must "establish
that the transmitted information bears adequate indicia of
reliability"). The judge found that the defendant left and
returned; he did not find that the caller reported circling
activity, or that any such behavior had occurred. The
transcript from the suppression hearing indicates that, on
cross-examination, the police officer agreed that "there's
nothing on the 911 recording that was the basis for the
information . . . regarding the vehicle circling the area."
5
The police dispatcher broadcast the information as a
"Priority 1" call, requesting "any unit nearby" to respond to
the address. A call coded as "Priority 1" "means that it was of
a serious nature and that response time and protecting officer
safety were both high priorities." A marked cruiser driven by
Lanteigne arrived on Armandine Street shortly after the
broadcast.4 The cruiser did not have its emergency lights
activated. Lanteigne stopped when a man (later identified as
Wattley) ran off his porch toward the cruiser and began
"yelling" to Lanteigne and pointing at a black Acura motor
vehicle that was parked twenty to thirty feet in front of the
cruiser, on the right hand side of the street.5
The Acura was legally parked very close to the curb, and
was completely dark; no interior or external lights were on.
Another vehicle was parked in front of the Acura, but the space
or spaces behind it were empty. At that point, Lanteigne
observed the Acura's brake lights illuminate, and Wattley yelled
something to the effect of, "That's him. That's the guy, he's
4
The motion judge found that Lanteigne knew Armandine
Street was in a high crime area; he also knew that repeated
incidents of shots fired, gun injuries, homicides and other
violent crimes had occurred within a few blocks of the street,
but had no information about shots fired or use of a firearm
near Armandine Street that night.
5
The distinction between the Infiniti mentioned by Jabari
Wattley on the 911 call and the Acura that he pointed out to
Lanteigne is discussed in note 8, infra.
6
about to drive away." In response, Lanteigne activated the
cruiser's blue lights, strobe lights, and other lights, and
moved the cruiser alongside the driver's side of the Acura in
order to block the vehicle from leaving. Lanteigne believed
"the Acura was about to drive away . . . [and] understood that
the person Wattley had seen with a handgun was driving the
Acura."
Lanteigne got out of the cruiser and removed his firearm
from its holster. At the same time, the defendant got out of
the Acura and closed the door. He "appeared to take no notice
of and pay no attention to" Lanteigne, and started to walk away.
Lanteigne responded by running to the front of his cruiser and
ordering the defendant to stop. When the defendant turned and
started walking away quickly, the officer holstered his own
weapon, pushed the defendant against the rear of the Acura,
forced him to the ground when he resisted being pushed, and
handcuffed him.
Another police officer who had responded to the scene stood
immediately next to the closed driver's side door of the Acura,
and leaned toward the window. He observed a firearm lying on
the floor by the driver's seat.6 If the defendant had been
6
A photograph taken through the closed window of the Acura,
and showing the firearm on the driver's side floor, was received
in evidence. The judge made no finding as to whether the gun
7
seated in the vehicle, "his legs would have completely hidden
the gun from view."
The police determined that the defendant did not have a
Massachusetts driver's license, and that he was not the
registered owner of the Acura. The police decided to tow the
vehicle because a person having lawful control of the vehicle
was not present, and because there had been vandalism in the
area. Prior to the tow, the vehicle was searched pursuant to an
inventory policy. In addition to the firearm, the police found
an open bottle of beer, a cup containing what appeared to be an
alcoholic beverage in the console next to the driver's seat, and
a closed, full bottle of beer.
Suppression ruling. The motion judge allowed the motion to
suppress because he concluded that, at the time Lanteigne
stopped and seized the Acura vehicle -- identified by the judge
as the moment when Lanteigne activated his cruiser's blue lights
and blocked the Acura from leaving -- the police lacked a
reasonable, articulable suspicion that criminal activity was
afoot.7 See Commonwealth v. Alvarado, 423 Mass. 266, 268 & n.3
(1996), citing Terry v. Ohio, 392 U.S. 1 (1968). The judge
was secured with a safety device. Nothing about the photograph
suggests that such a device was present. See G. L. c. 140,
§ 131L (gun storage statute).
7
The Commonwealth did not argue that there was probable
cause for the stop.
8
emphasized that it is not unlawful to carry a gun in public; it
is only illegal to do so without a license. The judge concluded
that a report of a man holding an unholstered gun on a public
sidewalk, late at night in a high crime area, was not
sufficiently suspicious to warrant an investigatory stop. He
therefore ordered that the evidence discovered in the vehicle be
suppressed.
Discussion. We agree with the motion judge that the
determinative issue in this case is whether the initial stop of
the Acura was predicated on "reasonable suspicion, based on
specific, articulable facts and reasonable inferences therefrom,
that an occupant of the . . . motor vehicle had committed, was
committing, or was about to commit a crime." Alvarado, 426
Mass. at 268. See Commonwealth v. Wilson, 441 Mass. 390, 394
(2004). See also Terry, 392 U.S. at 21-22.
Breaking down the inquiry into its component parts, we
consider when the stop and seizure occurred, whether the stop
was supported by reasonable suspicion, and whether the scope of
the ensuing search was proportional to the degree of suspicion
that prompted it.
1. Moment of seizure. Like the motion judge, we conclude
that the defendant clearly was stopped and seized in the
constitutional sense when Lanteigne activated his cruiser's blue
lights and blocked the Acura's egress. See Commonwealth v.
9
Thompson, 427 Mass. 729, 733, cert. denied, 525 U.S. 1008
(1998). Viewed objectively, at that moment, a reasonable person
would not have believed that he was free to leave the scene.
See Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001);
Commonwealth v. Smigliano, 427 Mass. 490, 491 (1998).
2. Reasonable suspicion to initiate stop. Under the
principles of Terry, 392 U.S. at 21-22, a police officer may
stop a person to make a "threshold inquiry where suspicious
conduct gives the officer reason to suspect that a person has
committed, is committing, or is about to commit a crime."
Commonwealth v. Silva, 366 Mass. 402, 405 (1974). An officer's
suspicion must be grounded in "'specific, articulable facts and
reasonable inferences [drawn] therefrom' rather than on a
'hunch'" (citation omitted). Commonwealth v. Lyons, 409 Mass.
16, 19 (1990). In this case, the stop was predicated primarily
on the information contained in the police broadcast. That
information was provided by a person who both identified himself
and said he personally had seen the defendant with a gun at 1:30
A.M. on a deserted, residential street. He identified the
defendant by name; explained that he knew the defendant; met the
police officer, Lanteigne, at the address he had provided to the
911 dispatcher; and pointed out the defendant's vehicle to
10
Lanteigne.8 In these circumstances, Wattley's basis of knowledge
was established, and his report of seeing the defendant holding
a firearm "could be regarded as reliable without any prior
demonstration of his reliability." Commonwealth v. Gouse, 461
Mass. 787, 793 (2012), quoting Commonwealth v. Bowden, 379 Mass.
472, 477 (1980) (distinguishing reports of anonymous informants
from those of "bystanders, victims and participants").
Although Wattley did not describe the firearm to the 911
dispatcher -- and, as the motion judge observed, there is
nothing illegal about merely possessing an appropriately
licensed gun -- there was more to the 911 call and Wattley's
description of the defendant's behavior than mere possession of
a gun.9 As Wattley reported, the defendant drove away and then
came back to Armandine Street; he got out of the vehicle and
stood outside while holding a gun -- apparently in his open
hand, because Wattley reported seeing the weapon; the defendant
8
Although Wattley, who was calling from the second story of
a building, reported to the 911 dispatcher that the vehicle was
a black Infiniti, he specifically identified a black Acura to
Lanteigne. In the circumstances -- nighttime, Wattley's
location inside his apartment at the time of the 911 call, his
location outside and nearer to the vehicle at the time he
pointed it out to Lanteigne, and the fact that on both occasions
he described the vehicle as black -- the difference is
immaterial.
9
Contrast Commonwealth v. Couture, 407 Mass. 178, 179, 183
cert. denied, 498 U.S. 951 (1990) (report that defendant had
been seen inside convenience store with handgun protruding from
rear pocket, by itself, was insufficient to support probable
cause under Fourth Amendment).
11
returned the firearm to the vehicle before entering the vehicle
himself; and he then sat alone in the vehicle with all of its
lights off. These facts, coupled with the time (approximately
1:30 A.M.), the location (a deserted street in a residential
area, "within a few blocks" of which there had been repeated
crimes of violence, including gun violence and homicides), and
the officer's belief that "trained, licensed owners of a handgun
typically carry their firearm in a holster,"10 combine to create
a scenario that an experienced police officer could reasonably
believe is more consistent with likely criminal activity than it
is with lawful possession of a firearm. Although, unlike
Commonwealth v. Haskell, 438 Mass. 790, 791, 794 (2003), the
defendant was not observed loading the gun, the facts just
described concerning the time of night, the location, and the
defendant's conduct in driving away and returning and, more
particularly, in his handling of the gun as he got out of and
then reentered the Acura, were collectively significant.
10
We recognize, as did the motion judge, that a person
licensed to carry a gun is not required to carry it holstered
and concealed from view. See Couture, 407 Mass. at 181, 183.
However, the fact that in the officer's experience, licensed gun
owners tend to carry their weapons in holsters, when combined
with the other facts discussed in the text, added, albeit
marginally, to the facts that collectively amounted to
reasonable suspicion. See Commonwealth v. Gomes, 453 Mass. 506,
511 (2009), quoting Commonwealth v. Watson, 430 Mass. 725, 729
(2000) ("Seemingly innocent activities taken together can give
rise to reasonable suspicion justifying a threshold inquiry").
12
When these facts are considered together and in light of
Lanteigne's police experience, they are sufficient to establish,
even if just barely, the requisite nexus to suspected criminal
activity to warrant an investigatory stop, because the officer
"could reasonably infer from the conjunction of these facts that
criminal activity might be afoot." Thompson, 427 Mass. at 734.
See id. (vehicle double-parked in front of townhouse that was
subject of narcotics investigation, late at night, with engine
running, in high crime area); Commonwealth v. Almeida, 373 Mass.
266, 271-272 (1977) (reasonable suspicion present where
defendant was sitting alone in automobile in high crime area
late at night, with its engine running and lights off).11
Contrast Couture, 407 Mass. at 183 (in absence of other factors,
"mere possession of a handgun was not sufficient to give rise to
a reasonable suspicion that the defendant was illegally carrying
that gun").
3. Scope of search. Not only was the decision to make an
investigatory stop objectively reasonable, but the officer's
actions were "reasonably related in scope to the circumstances
which justified the interference in the first place."
11
"Although an individual's presence in a high crime area
alone will not establish a reasonable suspicion, . . . it may
nevertheless be a factor leading to a proper inference that the
individual is engaged in criminal activity" (citations omitted).
Commonwealth v. Thompson, 427 Mass. 729, 734, cert. denied, 525
U.S. 1008 (1998).
13
Commonwealth v. Borges, 395 Mass. 788, 793 (1985), quoting
Terry, 392 U.S. at 20. See Commonwealth v. Moses, 408 Mass.
136, 141 (1990) (once investigative circumstances for stop are
established, "[t]he pertinent inquiry is whether the degree of
intrusion is reasonable in the circumstances"). When Lanteigne
saw the Acura's brake lights illuminate, he "feared that the
Acura was about to drive away." Activating the cruiser's
emergency lights and blocking the Acura's egress were reasonably
prudent protective measures that were proportional to the degree
of suspicion that prompted the stop. See Moses, supra ("common
knowledge that a person who wants to avoid police questioning,
very often will recklessly drive away, resulting in serious
injury to the police and bystanders").
The defendant's actions following the initial seizure of
the Acura increased the degree of reasonable suspicion, and the
police response properly escalated in proportion to it. See
Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001) ("conduct
of the officers was proportional to the escalating suspicion
that emerged over the course of the stop"). See also Haskell,
438 Mass. at 794. At the time of the stop, Lanteigne was alone,
very late at night, on a deserted street in an area that he knew
from his police experience had been the site of repeated
incidents involving the use of guns as well as homicides and
other violent crimes. He was aware of Wattley's report that the
14
defendant was armed, that he had left the scene and then
returned, and that he had held the weapon openly on the
residential street before concealing its presence by returning
it to the vehicle. Those facts properly were "considered as
part of the aggregate circumstances that provide reasonable
suspicion to justify a protective frisk." Commonwealth v.
Gomes, 453 Mass. 506, 512 (2009). See Wilson, 441 Mass. at 394-
395. See also Sinforoso, supra at 325. If the defendant had
remained seated in the vehicle, the officer would have been
warranted in ordering him from the vehicle to conduct that
patfrisk. See Commonwealth v. Robbins, 407 Mass. 147, 151
(1990) (protective measures may include protective frisk and
minimal search of interior of vehicle).
The defendant did not, however, remain in the vehicle.
Instead, after the cruiser's blue lights and strobe lights had
been activated and the cruiser had pulled along the driver's
side of the Acura, the defendant get out of the vehicle and
"appeared to take no notice of and pay no attention to Lanteigne
and started to walk away”; he disregarded the officer's order to
stop, and turned and began to walk quickly in a different
direction. Because the defendant resisted the officer's
attempts to stop him, the officer was warranted in physically
restraining him to further the investigation. See Commonwealth
v. Williams, 422 Mass. 111, 119 (1996) ("restraint, . . .
15
limited in duration and necessary to complete the
[investigatory] inquiry, does not turn a valid investigatory
stop into an unlawful arrest"). See also Commonwealth v.
Torres, 424 Mass. 153, 162 (1997) (limited restraint for
purposes of threshold inquiry permissible where commensurate
with purpose of stop).
While Lanteigne was occupied with the defendant, another
officer, who had arrived on the scene and was standing outside
the defendant's vehicle, observed a gun on the floor of the
Acura near the driver's seat. For essentially the same reason
that Lanteigne was justified in frisking the defendant, and in
light of the defendant's actions after the initial stop, the
police were entitled to determine "whether the object was, in
fact, a weapon which could be used against them. The [officers]
were not required to gamble with their personal safety."
Robbins, 407 Mass. at 152. See Sinforoso, 434 Mass. at 324
(actions of police officers in entering automobile to retrieve
discovered weapons was reasonable for officer safety); Silva,
366 Mass. at 408 ("a Terry type of search may extend into the
interior of an automobile so long as it is limited in scope to a
protective end"). Although the defendant was not in the vehicle
at the time the gun was observed, "like the defendant in Silva,
[supra,] he was not under arrest at the time of the 'pat-down'
search of his person, and there was no assurance that he would
16
not be returning promptly to his seat behind the wheel of the
automobile." Almeida, 373 Mass. at 272. In the circumstances,
the police intrusion into the vehicle was reasonably justified
in scope.
Once the police lawfully had access to the vehicle, under
the plain view doctrine, additional items could be seized,
provided the incriminating character was apparent. See, e.g.,
Commonwealth v. Santana, 420 Mass. 205, 211 (1995). In this
case, two open containers of what appeared to be alcoholic
beverages were seized from the center console. The
incriminating character of these open containers was apparent.
See Commonwealth v. Johnson, 461 Mass. 44, 50 n.7 (2011)
("possession of an open container of alcohol in a motor vehicle
is a misdemeanor"); G. L. c. 90, § 24I (open container law).12
We conclude that seizure of the items contained in the vehicle
was constitutionally permissible.13
12
The Commonwealth did not argue that there was probable
cause to search the motor vehicle based on the officer's plain
view that the firearm inside the vehicle was neither locked nor
secured, in violation of G. L. c. 140, § 131L (gun storage
statute). As a result, the judge made no findings with respect
to whether the gun was within the defendant's control or, if
not, whether there was cause to believe it was not secured with
a safety device. We do not, therefore, reach the question
whether violation of the gun storage statute would support
warrantless entry into the vehicle.
13
Because we conclude that the firearm and the open
containers of alcohol were properly seized, we do not consider
17
Conclusion. Considered collectively, the articulable facts
in this case combine to establish a reasonable suspicion of
criminal activity before the defendant was stopped and seized,
albeit with the very narrowest of margins. Objectively, the
police officer could consider the behavior reported, the weapon
identified, the time of night, and the characteristics of the
location, and reasonably suspect that the sum of these
activities equated to criminality. The order allowing the
motion to suppress is vacated, and a new order is to be entered
denying the motion. The case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.
whether the officers lawfully impounded the vehicle and
conducted an inventory search, or whether the search was lawful
as a search incident to arrest.