Commonwealth v. Meneus , 476 Mass. 231 ( 2017 )

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SJC-12105
COMMONWEALTH vs. McGREGORY MENEUS.
Middlesex. September 8, 2016. - January 11, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Firearms. Constitutional Law, Investigatory stop, Stop and
frisk, Reasonable suspicion, Search and seizure. Search
and Seizure, Threshold police inquiry, Protective frisk,
Reasonable suspicion. Practice, Criminal, Motion to
suppress.
Complaint received and sworn to in the Cambridge Division
of the District Court Department on June 30, 2006.
A pretrial motion to suppress evidence was heard by James
L. LaMothe, Jr., J., and a motion for reconsideration was
considered by him; and the case was heard by Michele B. Hogan,
J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
David Gerson for the defendant.
Randall F. Maas, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. After a jury-waived trial in the Cambridge
District Court, the defendant was convicted of various firearms
charges. The firearm was discovered after the defendant and a
group of young black males were stopped by Cambridge police
officers to investigate a report of shots fired at a vehicle.
The defendant filed a motion to suppress the firearm, claiming
that the police lacked reasonable suspicion for the stop. The
motion judge denied the motion, as well as a motion for
reconsideration thereof filed in light of our decisions in
Commonwealth v. Martin, 457 Mass. 14 (2010), and Commonwealth v.
Narcisse, 457 Mass. 1 (2010).1 The defendant appealed from his
convictions and the Appeals Court affirmed in an unpublished
memorandum and order issued pursuant to its rule 1:28. We
allowed the defendant's application for further appellate
review. We conclude that the police lacked reasonable suspicion
for the stop and that the denial of the motion to suppress was
error. Therefore, we vacate the conviction and remand for a new
trial.
1
The defendant argued that the judge's decision on the
motion to suppress conflicted with our holdings in Commonwealth
v. Martin, 457 Mass. 14, 19-20 (2010), and Commonwealth v.
Narcisse, 457 Mass. 1, 9 (2010), that police officers may not
progress from a consensual encounter to a protective frisk
without reasonable suspicion that the individual is engaged in
criminal activity and is armed and dangerous. The judge denied
the motion.
3
Background. We summarize the facts as found by the motion
judge, supplemented by uncontroverted evidence drawn from the
record of the suppression hearing and evidence that was
implicitly credited by the judge.2 Commonwealth v. Melo, 472
Mass. 278, 286 (2015).
In the late evening hours of April 29, 2006, Debra Santos
reported to police that a gunshot struck her vehicle as she was
driving on Windsor Street in Cambridge. At approximately 10:50
P.M., Cambridge police officers Janie Munro and David Porter met
Santos at the intersection of Windsor and Washington Streets,
near the location where the shots allegedly were fired. Santos
told the police that she heard a loud noise that she believed
was a gunshot and that immediately thereafter she saw a group of
young black males run into the courtyard of the Washington Elms
housing complex. She did not indicate to the police that this
group was involved in the shooting at her vehicle, and she
provided no additional descriptive information about the
individuals she had seen running into the courtyard.
While speaking to Santos, Officer Munro observed a group of
young black males who were standing on a sidewalk near the
2
While assembling the record for the appeal, appellate
counsel learned that the recording of the January 16, 2009,
proceeding on the motion to suppress, consisting of Officer
Janie Munro's testimony on direct examination, could not be
located. After a hearing on the defendant's motion to perfect
the record, the motion judge issued written findings as to the
content of Officer Munro's direct testimony.
4
Washington Street entrance to the housing complex. The group
was "[l]iterally right around the corner" from where Santos had
stopped after hearing what she believed to be gunshots.
Officer Munro's attention was drawn to the group by one of the
males who "st[u]ck his head outside [of the courtyard] and
st[u]ck his head back inside." The officers drove their cruiser
to where the group was standing and approached the group on
foot. The defendant, one of five or six young black males in
the group, was wearing a black bomber jacket with a visibly
distinctive orange lining. The officers asked if anyone had
information about gunshots being fired in the area. They denied
any knowledge of a shooting.
After questioning the group, the officers requested
permission to pat frisk them for "officer safety." At the time
of this request, the police officers had had no prior
interaction with any of the young men in the group and no
information that anyone previously had been involved in criminal
activity. The judge made no finding that the defendant or
anyone else in the group engaged in suspicious or potentially
threatening conduct toward the police at any time during the
encounter. Up until the request to pat frisk the group, the
tone had been conversational. But thereafter, the young men
expressed their displeasure with the stop and with being asked
to submit to a patfrisk. Some of them submitted to the
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officers' request but they were "unhappy" about it. The judge
made no finding that the defendant consented to the patfrisk.
The defendant became argumentative when the police began
pat frisking some members of the group, and he attempted to
terminate the encounter by walking away. As the defendant
"started moving backwards" away from the group, one of the
officers started pursuing him. The defendant turned and began
running away from the area. The officers yelled, "Cambridge
police, stop," and pursued the defendant into the housing
complex. The defendant ignored the order to stop and continued
running. During the chase, the defendant passed Santos, who
grabbed his clothing, slowing his flight from the area. After a
brief chase, the police eventually caught up to the defendant on
Windsor Street where he was "assisted to the ground" by Officer
Porter. As the defendant was being brought to his feet, the
officers discovered a firearm that had been underneath his body.
Although Santos remained on the scene while the police
investigated the group, the police did not ask if she could
identify anyone as being in the group of young men she observed
running into the courtyard after hearing the gunshots.
The judge explicitly credited Officer Munro's testimony
that, at the time the police initiated the pursuit of the
defendant into the courtyard, she had "no information" that the
defendant was a suspect in the shots fired call or any other
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crime. Consistent with this finding, Officer Porter
acknowledged that, at the time of the request to pat frisk the
group, he had no information implicating the defendant or any of
the other young black males in criminal activity. Officer
Porter agreed that at the time of the pursuit, the defendant was
not a suspect in a crime and that he was merely "a person in
question."
Discussion. 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 . . . testimony presented at the motion
hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
However, "[w]e review independently the application of
constitutional principles to the facts found." Id. The
Commonwealth bears the burden of demonstrating that the actions
of the police officers were within constitutional limits.
Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).
The analysis of the constitutional propriety of the police
officers' conduct focuses on two questions: (1) whether and
when the defendant was seized in a constitutional sense; and (2)
whether the facts known to the police at the time of the seizure
establish reasonable suspicion that the defendant had committed,
was committing, or was about to commit a crime. Commonwealth v.
7
Depina, 456 Mass. 238, 241-242 (2010). The defendant argues
that the police effected a seizure of his person when they
manifested their intent to pat frisk the group and, at that
moment, the police lacked reasonable suspicion of criminal
activity. The Commonwealth counters that the seizure occurred
when the police commanded the defendant to stop and, at that
point, the information known to the police justified their
inquiry.
2. The seizure. A person is seized under art. 14 of the
Massachusetts Declaration of Rights "only if, in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave."
Commonwealth v. Barros, 435 Mass. 171, 173-174, (2001), quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980). The
judge's ruling on the motion to suppress did not specifically
identify the moment at which the defendant was seized. We are
persuaded, however, that a seizure for constitutional purposes
occurred when one of the police officers advanced toward the
defendant as he turned to leave the area in an apparent attempt
to avoid an imminent patfrisk.
As the judge found, the young men in the group initially
were cooperative with the police in responding to the inquiry
about the alleged shooting. Their willingness to cooperate
changed, however, when the police requested permission to pat
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frisk the group "for officer safety." Some members of the group
eventually acquiesced to the patfrisk request, albeit
reluctantly. The defendant, however, remained defiant and
"argumentative" during the encounter, never manifesting any
intent to submit to the patfrisk. Observing that the police
were intent on pat frisking the group, the defendant attempted
to leave the scene. The police officer's response, pursuing the
defendant as he backed away, communicated unequivocally that
refusing to submit to the "request" was not an option. That act
added a "compulsory dimension" to the encounter, transforming it
from consensual to obligatory. See Barros, 435 Mass. at 174.
Thus, where the police officer's conduct impeded the defendant's
freedom of movement, he was seized for constitutional purposes,
as "a reasonable person would have believed that he was not free
to leave" at that point in the encounter. Id. at 175-176.
3. Reasonable suspicion. Once a seizure has occurred, the
issue for the court is "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 (2014). "That suspicion must be
grounded in 'specific, articulable facts and reasonable
inferences [drawn] therefrom' rather than on a 'hunch.'"
DePeiza, 449 Mass. at 371, quoting Commonwealth v. Scott, 440
Mass. 642, 646 (2004). Reasonable suspicion is measured by an
9
objective standard, Commonwealth v. Mercado, 422 Mass. 367, 369
(1996) and the totality of the facts on which the seizure is
based must establish "an individualized suspicion that the
person seized by the police is the perpetrator" of the crime
under investigation. Commonwealth v. Warren, 475 Mass. 530, 534
(2016).
The motion judge ruled that police had reasonable suspicion
for the seizure based on a combination of factors: (1) the
defendant was part of a group of black males matching the
description provided to police by the victim; (2) the stop
occurred in a "high crime" area; (3) the purpose of the stop was
to investigate a report of shots fired, a crime posing an
imminent threat to public safety; (4) the defendant and his
companions were in close geographical and temporal proximity to
the alleged crime at the time of the stop; (5) the defendant
fled from the scene; and (6) the officers' safety justified the
patfrisk. 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 has, is, or will commit a
particular crime. Commonwealth v. Feyenord, 445 Mass. 72, 77
(2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth
v. Fraser, 410 Mass. 541, 545 (1991). Assessing the totality of
the circumstances leading to the stop of the defendant, we
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conclude that the facts known to the police at the time of the
seizure were not sufficient to establish reasonable suspicion
that the defendant was connected to the alleged shooting at the
victim's vehicle.
a. The description of the suspects. Neither the initial
dispatch about the alleged shooting nor the police interview of
Santos produced anything more than a very general description of
the possible perpetrators. Consequently, when the police
stopped the defendant and the other members of the group, they
knew only that "a group of young black males" had run into the
Washington Elms housing complex immediately after Santos heard
what she assumed to be gunfire. Other than the race and age of
the group seen running into the housing complex, the police had
none of the usual descriptive information such as distinctive
clothing, facial features, hairstyles, skin tone, height,
weight, or other physical characteristics that would have
permitted them to reasonably and rationally narrow the universe
of possible suspects.
"We have no hard and fast rule governing the required level
of particularity [of a description]; our constitutional analysis
ultimately is practical, balancing the risk that an innocent
person . . . will be needlessly stopped with the risk that a
guilty person will be allowed to escape." Commonwealth v.
Lopes, 455 Mass. 147, 158 (2009). Nonetheless, we have been
11
consistent in the view that a general description such as "a
group of young black males" falls far short of the particularity
necessary to establish individualized suspicion that a suspect
is committing, has committed, or is about to commit a crime.
See e.g., Warren, 475 Mass. at 535 (description of suspects as
"two black males" wearing "dark clothing" and "one black male"
wearing a "red hoodie," without any information as to other
physical characteristics, lacked sufficient detail to constitute
particularized reasonable suspicion); Commonwealth v. Walker,
443 Mass. 867, 872-873, cert. denied, 546 U.S. 1021 (2005)
(description of robber by race alone without other factors
suggestive of criminal activity insufficient for reasonable
suspicion); Commonwealth v. Cheek, 413 Mass. 492, 496 (1992)
(description of suspect as "black male with a black 3/4 length
goose" coat insufficient for individualized suspicion, as it
could have fit large number of men). Therefore, the mere
presence of a nondescript group of young black males standing
near the scene of a reported shooting did not, standing alone,
sufficiently narrow the range of possible suspects to include
this group of individuals.
We recognize that the value of a vague or general
description in the reasonable suspicion analysis may be enhanced
if other factors known to the police make it reasonable to
surmise that the suspect was involved in the crime under
12
investigation. Mercado, 422 Mass. at 371 (general description
alone not sufficient to establish reasonable suspicion requisite
to justify stop, but when combined with other factors "may allow
the police to narrow the range of suspects to particular
individuals"). In this case, however, the totality of facts
known to the police at the time of the seizure lacked sufficient
detail to add flesh to the bare-bones description provided by
Santos. Rather, the information then available to the police
detracted from any value Santos's description may have had in
identifying the group as suspects in the shooting. More
specifically, it does not appear that Santos ever identified the
defendant and his companions as the same group she saw running
into the courtyard. Also, the defendant was wearing distinctive
clothing, a fact not mentioned by Santos in her description of
the fleeing group. We note as well that the group did not
engage in suspicious behavior or other conduct suggesting that
only moments earlier, they had fired shots at Santos's vehicle.
See Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005)
("Strange, furtive, or suspicious behavior or movements can
infuse otherwise innocent activity with an incriminating
aspect"). Thus, Santos's very general description of the group
seen running into the housing complex added nothing of value to
the reasonable suspicion calculus.
13
b. High crime area. The judge found that the stop
occurred in a "high crime" area and ruled that this fact
contributed to the police officers' reasonable suspicion that
the defendant's group had fired the shot at Santos's vehicle.
Although the characterization of a particular neighborhood
as a "high crime" area has been recognized as a factor in the
reasonable suspicion analysis, Commonwealth v. Johnson, 454
Mass. 159, 163 (2009), we have been clear that "[j]ust being in
a high crime area is not enough to justify a stop."
Commonwealth v. Grandison, 433 Mass. 135, 139 (2001). Indeed,
whenever this factor is considered in the reasonable suspicion
analysis, we have urged a cautious approach because "many
honest, law-abiding citizens live and work in high-crime areas.
Those citizens are entitled to the protections of the Federal
and State Constitutions, despite the character of the area."
Commonwealth v. Gomes, 453 Mass. 506, 512 (2009), quoting
Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001). The
exercise of that caution necessarily means that we look beyond
the term "high crime area" to determine whether the inferences
fairly drawn from that characterization "demonstrat[e] the
reasonableness of the intrusion." Johnson, supra. Here, this
factor lacks relevance in the reasonable suspicion calculus, as
there was no negative inference to be drawn from the location of
the stop.
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c. The nature of the reported crime. The motion judge
considered the report of shots fired as an "imminent threat to
public safety" and, on that basis, concluded that the police
were permitted to stop the defendant even without direct
information that he had committed the crime under investigation.
The judge relied on Commonwealth v. Foster, 48 Mass. App. Ct.
671, 674-675 (2000), where the Appeals Court held that a police
officer may pat frisk an individual, even in the absence of
reasonable suspicion of criminal activity, if the circumstances
present an "imminent threat to public safety." The judge also
denied the defendant's motion for reconsideration based on our
holding in Narcisse, 457 Mass. at 9, that "police officers may
not escalate a consensual encounter into a protective frisk
absent a reasonable suspicion that an individual has committed,
is committing, or is about to commit a criminal offense and is
armed and dangerous." This was error.
First, our holding in the Narcisse case casts doubt on the
wisdom of the judge's steadfast reliance on the Foster case as
support for his ruling that the actions of the police officers
were constitutionally permissible because of the nature of the
crime under investigation, a report of gunshots being fired at a
motor vehicle. The rationale underlying Foster, derived
principally from Commonwealth v. Fraser, 410 Mass. 541 (1991),
was undercut substantially in Narcisse, where the court
15
specifically "disavow[ed] any suggestion in Fraser that we were
establishing a new or lesser standard in our stop and frisk
jurisprudence." Narcisse, 457 Mass. at 9. The motion judge
erred, therefore, in disregarding this limitation of Fraser,
which in turn called into question the continued vitality of
Foster.
Second, although our cases have recognized that the
"gravity of the crime and the present danger of the
circumstances" may be considered in the reasonable suspicion
calculus, we have not gone so far as to carve out a public
safety exception based on this factor. See e.g., Depina, 456
Mass. at 247, and cases cited. In Lopes, 455 Mass. at 158,
where the police were investigating a homicide, the court
considered the nature of the crime but still conducted a
reasonable suspicion analysis. There, the police stopped the
defendant's vehicle despite minor discrepancies between that
vehicle and the witness's description. The defendant's vehicle
was similar in color to the suspect vehicle and had tinted
windows, but it had a Cape Verdean flag hanging from the rear
view mirror instead of from the "back" of the vehicle as
described by the witness. Id. Although the court did not base
its determination that the stop was constitutional on the nature
of the crime, it was relevant to the analysis. The court
assessed the constitutionality of the stop, framing the issue in
16
terms of reasonableness, and concluded that "[a]n objectively
reasonable police officer [investigating a homicide] would not
have allowed the van to pass simply because the Cape Verdean
flag hung from the inside rear view mirror rather than the
'back' of the van." Id. at 158.
Likewise, in Depina, 456 Mass. 246, the court considered
whether a stop of the defendant in the immediate vicinity of and
close in time to a recent shooting was justified by reasonable
suspicion. Although the nature of the crime was a factor in the
reasonable suspicion calculus, the court considered the totality
of the information known to the police, including the
defendant's geographical and temporal proximity to the scene of
the crime and his suspicious behavior in the wake of the
shooting, in determining that the stop of the defendant was
constitutionally justified. Id. at 247. Thus, the fact that
the crime under investigation was a shooting, with implications
for public safety, was relevant but not dispositive in
determining the reasonableness of the stop.
d. Geographical and temporal proximity to the crime. The
seizure of a suspect in geographical and temporal proximity to
the scene of the crime appropriately may be considered as a
factor in the reasonable suspicion analysis. Commonwealth v.
McKoy, 83 Mass. App. Ct. 303, 313 (2013). The judge found that
the defendant and his companions were "literally around the
17
corner" from where Santos saw the group of black males run into
the courtyard only minutes after the alleged shooting occurred.
This geographical and temporal proximity was relevant to the
reasonable suspicion calculus. The inference from such
proximity adds little value to that calculus here, however,
where the police had no information connecting the defendant and
his companions to the group Santos had seen running into the
courtyard. Santos was present on the scene and participated in
the take-down of the distinctively dressed defendant, but she
made no identification of the group, and the judge made no
finding that she ever confirmed that the group approached by the
police was the same group she had seen earlier.
e. The defendant's flight from the scene. The motion
judge concluded that the defendant's flight from the scene as
the officers began pat frisking the other members of the group
"creat[ed] more suspicion that he might be armed or involved in
illicit activity." We disagree.
As noted, the seizure occurred when Officer Porter began to
pursue the defendant to prevent his avoidance of the patfrisk
that already had begun with the other members of the group, not
later in the encounter when the police commanded the defendant
to stop. Therefore, the issue of flight as a factor in
reasonable suspicion is focused on defendant's action in backing
away to avoid a patfrisk to which he did not consent. In the
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absence of constitutional justification for a threshold inquiry,
"our law guards a person's freedom to speak or not to speak to a
police officer. A person also may choose to walk away [or run
away], avoiding altogether any contact with police." Warren,
475 Mass. at 538, quoting Barros, 435 Mass. at 178 (breaking eye
contact and refusing to answer officer's initial questions did
not provide reasonable suspicion for detention or seizure as
"[i]t was the defendant's right to ignore the officer"). Having
not consented to the patfrisk, the fact that the defendant
backed away from the scene permits no inference of criminal
activity.
f. Officer safety. The judge ruled that the police were
justified by concerns for their safety in seizing the defendant.
The judge's findings, however, undermine that conclusion. In
assessing the credibility of Officer Munro's testimony, the
judge found that she "had no information that [the defendant]
had committed a crime at the time [the police initiated the
chase] into the courtyard." That finding eliminated the
defendant as a suspect in the crime under investigation and,
more generally, as a suspect in any other criminal activity.
Because the crime under investigation involved the discharge of
a firearm and none of the information available to the police
supported a reasonable belief that the defendant had committed
that crime or that he was armed, we are not persuaded that the
19
concern for officer safety supports the reasonable suspicion
calculus.
Conclusion. The convictions are vacated and the matter is
remanded for further proceedings consistent with this opinion.
So ordered.