Commonwealth v. McKoy , 83 Mass. App. Ct. 309 ( 2013 )

Kantrowitz, J.

The defendant, Duron McKoy, was indicted for unlawful possession of a firearm, unlawful possession of ammunition, and assault and battery by means of a dangerous weapon, in violation of G. L. c. 269, § 10(a), G. L. c. 269, § 10(h), and G. L. c. 265, § 15A(b), respectively. The defendant argues on appeal that the motion judge improperly denied his motion to suppress because the police unlawfully stopped him and, even if the stop were legitimate, the police used disproportionate force.

Facts. On January 18, 2011, at approximately 9:20 p.m., while on patrol, Brockton police Officers John Lonergan and Peter Spillane received a report of a stolen car. As they drove, they passed Edgemere Street, where they noticed two men walking. The men caught the officers’ attention because they did not expect to see, and had not seen, anyone out during the adverse weather conditions: a cold, windy, wet night filled with snow and slush. As the officers passed them, the men, unsurprisingly given the poor weather, had their “hoodies” pulled over their faces and their hands inside their pockets. Upon seeing the officers, they looked away. Seconds after passing the men, the officers heard a radio call stating that a person had been shot at 41 Clarendon Avenue, which was no more than 100 yards from their current location.

Both officers testified that they were familiar with 41 Clarendon Avenue because the police were frequently called to that address due to prostitution and gang activity. Officer Spillane also testified that the previous time he was at the address, it was for a gunshot call.

The officers turned around and encountered the two men about fifty yards from where they first saw them. Both men still had their hands inside their pockets, holding them up against their waists. Because of the nature of the call, the fact that somebody had just been shot, and the probability that a firearm was somewhere close by, Officer Spillane drew his weapon and pointed at the subjects as he got out of the cruiser. Officer Lonergan also exited the vehicle and asked the men to take their hands out of their pockets. As the defendant moved his hand, “a large item” fell to the darkened ground. The other man, Antoine McKoy, the defendant’s brother as it turned out, began to backpedal and only removed one hand, keeping the other in his pocket. Antoine made several motions as if he was trying to get something out of his pocket, and then ran away. At this point, Officer Lonergan also drew his weapon as Officer Spillane chased after Antoine.

Officer Lonergan, who was left alone with the “large sized” defendant,¹ ordered him to the ground. Forty to fifty seconds later, Officer Spillane returned after he was unable to catch Antoine. The officers proceeded to stand the defendant up, and Officer Spillane conducted a patfrisk. A magazine from a firearm was discovered in the defendant’s pocket. Officer Lonergan testified that after finding the magazine, they proceeded to handcuff the defendant because he might have “had a gun secreted on him some place,” the other defendant had fled, and the officers wanted to be cautious in case the other defendant was “lurking behind them.” Once the defendant was secured, Sergeant Mark Celia, who arrived at scene, used his flashlight to illuminate the area where the “large item” had been dropped. There he found a bottle of alcohol and a firearm. The firearm was “relatively dry” despite “everything around it [being] soaking wet,” indicating that it had been recently placed there. The firearm appeared to have been recently fired because a spent casing was still in the ejector port. The handgun and the magazine were a match.

After another officer came to assist Officer Lonergan, Officer Spillane returned to the area where he had last chased Antoine. Officer Spillane proceeded to follow the only set of footprints in the area, which he knew to be Antoine’s, because while jumping the fence, Antoine had lost his right sneaker. Officer Spillane testified that he found a gun in one of the footprints.

The defendant was then taken to 41 Clarendon Avenue, where the homeowner identified him as an individual that had recently been at the house. After the defendant was read the Miranda rights, he told Officer Spillane that “they were messing around with a gun and it went off.”

The stop. In reviewing a judge’s ruling 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). Here, the judge found that the emerging circumstances permitted the police to stop the defendant and pat frisk him.

Reasonable suspicion is determined by a twofold inquiry: “first, whether the initiation of the investigation by the police was permissible in the circumstances, and second, whether the scope of the search was justified by the circumstances.” Commonwealth v. Moses, 408 Mass. 136, 140 (1990), quoting from Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Such reasonable suspicion “must be ‘based on specific, articulable facts and reasonable inferences therefrom’ rather than on a ‘hunch.’ ” Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting from Commonwealth v. Wren, 391 Mass. 705, 707 (1984).² It is an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996), quoting from Terry v. Ohio, 392 U.S. 1, 21-22 (1968).

Moreover, “where there may be an ‘imminent threat’ presented ‘because of shots just fired, . . . there is an edge added to the calculus upon which . . . reasonable suspicion may be determined.’ ” Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 654 (2006), quoting from Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 557 & n.12 (2002). Specifically, the “test for determining reasonable suspicion should include consideration of the possibility of the possession of a gun, and the government’s need for prompt investigation.” Commonwealth v. Stoute, 422 Mass. 782, 791 (1996), quoting from United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994).

Here, the defendant and his companion were alone on the street. No one else was out due to the poor weather conditions. The area from where the defendant was coming, more specifically 41 Clarendon Avenue, had a reputation of hosting crimes, and on a prior occasion, police officers, including Officer Spillane, had been called to that house because of a shooting.

At the time the police officers first saw the defendant, he was no more than 100 yards from 41 Clarendon Avenue. Within a few seconds of passing the defendant, the police officers received a radio message stating that someone had been shot at 41 Clarendon Avenue. By the time the police officers turned around and confronted the defendant, he was no more than fifty yards from where they had just seen him. Because of the nature of the crime, the time of day, the weather conditions, and the proximity to the crime scene, the police officers had reasonable suspicion to question the defendant and his brother. When asked to take their hands out of their pockets, the defendant dropped a large item to the ground, while his brother kept his hand in his pocket prior to fleeing. Taken together, these actions justified the stop. See Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).

Disproportionate force. Now that we have determined the stop was permissible, we turn to the proportionality of the force employed, specifically the drawing of the gun by Officer Spillane.

“Once the [valid basis] for a stop [is] established, ‘the pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances.’. . . The extent of the danger is important in assessing whether the force used by the police in the encounter was commensurate with their suspicion. ... In short, [t]he degree of [permitted] intrusiveness ... is that which is ‘proportional to the degree of suspicion that prompted the intrusion.’ ” Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 199 (2003). (Citations omitted.) See Commonwealth v. Ruiz, 51 Mass. App. Ct. 346, 350 (2001). When police officers have reasonable suspicion to stop someone, drawing a handgun and pat frisking a suspect may be permissible based on safety concerns. See Commonwealth v. Johnson, 413 Mass. 598, 600 (1992); Commonwealth v. Owens, 414 Mass. 595, 600 (1993). The crucial safety question is the extent of the danger at the time the police used force.

Commonwealth v. Williams, 422 Mass. 111, 117-119 (1996), is illustrative. There, police officers were on patrol when they observed the defendant running down the street. The defendant was sweating, had a strained expression on his face, and discarded his shirt without breaking pace. The officers proceeded to follow the defendant who, upon closer observation, was covered with blood. The officers ordered the defendant to stop. The defendant then took evasive action by running through back yards and scaling chain link fences. At that point, one of the officers drew his service revolver, followed the defendant, and ordered him to stop and get on the ground. While handcuffing the defendant, the officers received a radio broadcast confirming a shooting, approximately 200 to 400 yards from where they had stopped the defendant.

The court held that not only drawing a gun, but handcuffing the individual, was reasonable to ensure the officer’s safety. The court reasoned that the length of the encounter, the nature of the inquiry, the possibility of flight, and the danger to the officers’ safety justified the action taken. Id. at 119. An “officer’s concern for his own safety is a fact that can be inferred from all the circumstances: it does not necessarily depend on direct testimony.” Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 306 n.5 (1986). “A police officer does not have to testify specifically that he was in fear for his own safety so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger.”³ Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 n.7 (1997).

Here, it was reasonable for Officer Spillane to take out and point his weapon at the outset of the encounter. There had been a report of a shooting; the address where the shooting had taken place had a past shooting associated with it; it was dark; and the two individuals, one of whom was veiy large, had their hands in their pockets. Additionally, they were coming from the direction of the shooting location and were the only people out at the time. An officer is entitled to take reasonable precaution for his own safety if the facts warrant a reasonable person believing the suspect to be armed. See Commonwealth v. Alvarado, 427 Mass. 277 (1998). “The Constitution does not require officers ‘to gamble with their personal safety,’ and police officers conducting a threshold inquiry may take reasonable precautions, including drawing their weapons, when the circumstances give rise to legitimate safety concerns.” Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), quoting from Commonwealth v. Robbins, 407 Mass. 147, 151-152 (1990).

Conclusion. There was no error in the judge’s decision to deny the defendant’s motion to suppress.

Order denying motion to suppress affirmed.

1 The defendant was apparently so large that it was impossible for the officers to later get his hands behind his back in order to handcuff him. Even after using four handcuffs, the officers were unable to handcuff him.

2 Our review does not hinge on the words chosen by the officer to describe his motivations, but on the facts viewed objectively by a reasonable person. We add that the dissent places great significance on Officer Spillane’s use of the phrase “odds” and seeks to equate that with hunch. The plain meaning of “odds,” however, is “the probability that one thing is so or will happen rather than another.” Merriam-Webster Dictionary 859 (11th ed. 2003). See Ralph v. Pepersack, 335 F.2d 128, 134 (4th Cir. 1964), cert. denied, 380 U.S. 925 (1965) (cautioning against engaging in “futile and unwarranted exercise[s] in semantics”). Based on the totality of the officer’s testimony, it is apparent that he acted on more than mere assumption.

3 Both officers testified that safety was an issue but neither stated that they were in fear.