Commonwealth v. Harris ( 2018 )

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17-P-123 Appeals Court
COMMONWEALTH vs. JESSE HARRIS.
No. 17-P-123.
Suffolk. December 18, 2017. - March 19, 2018.
Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander,
JJ.
Constitutional Law, Search and seizure, Reasonable suspicion,
Investigatory stop. Search and Seizure, Threshold police
inquiry, Reasonable suspicion. Threshold Police Inquiry.
Firearms. Evidence, Firearm, Knife, Flight. Practice,
Criminal, Stipulation, Motion to suppress.
Indictments found and returned in the Superior Court
Department on November 13, 2015.
A pretrial motion to suppress evidence was heard by Robert
N. Tochka, J., and the cases were heard by Robert B. Gordon, J.,
on a statement of agreed facts.
Rosemary Daly for the defendant.
Meghan Joyce, Assistant District Attorney (L. Adrian
Bispham, Assistant District Attorney, also present) for the
Commonwealth.
ENGLANDER, J. This case raises an issue as to the
reasonableness of police conduct when the police engaged with,
2
and ultimately stopped and seized, persons walking in a public
area. The defendant appeals from his convictions of illegal
possession of a firearm and carrying a loaded firearm without a
license, claiming that (1) the firearm was seized in violation
of the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights, and (2) the
trial judge failed to conduct the necessary waiver colloquy
before convicting the defendant based upon stipulated facts.
Because, as the Commonwealth acknowledges, the required colloquy
did not occur, the judgments must be vacated and the findings
set aside.
That leaves the search and seizure issue, which has been
fully briefed and argued and which bears on any future
proceedings. See Commonwealth v. Monteiro, 75 Mass. App. Ct.
280, 289 (2009). The seizure of the gun resulted from what
began as a "casual" encounter between the defendant, his two
companions, and the Northeastern University (university) police,
outdoors on a September afternoon in the middle of the
university's campus. The defendant contends that he and his
companions were stopped or seized, for constitutional purposes,
without the required reasonable suspicion, and that the gun
accordingly must be suppressed. A Superior Court judge denied
the defendant's pretrial motion to suppress the gun, concluding
that the initial conversations with police were consensual and
3
that no stop occurred until after the police officers had
observed a knife on the defendant's person, at which point the
seizure became entirely justified. We conclude that although
the initial actions of the police were reasonable, the police
unreasonably extended the encounter, and then seized the
defendant before the knife appeared and without the requisite
reasonable suspicion.
1. Background. a. Facts.1 This case arises, as our cases
often do, out of ordinary police work that developed into a
seizure and, ultimately, an arrest. On September 23, 2015,
Officers John Sweeney, Jonathan Sprague, and Andrew Good of the
university police were working a day shift. Officers Sweeney
and Sprague were on mountain bicycles, while Officer Good was
driving a marked police car. These three officers were wearing
university police uniforms.2
At 3:20 P.M., all three officers heard a radio broadcast
stating, "two black males in their early 20's, one wearing a
black hoody, and the other wearing a gray hoody, possibly with a
third person, casing the bike racks by Snell [L]ibrary" at the
university. This information was initially provided by a
1 The following facts are drawn from the motion judge's
findings of fact, together with uncontested testimony adduced at
the evidentiary hearing where the judge credited the witnesses'
testimony.
2The officers have arrest powers pursuant to G. L. c. 22C,
§ 63. See Commonwealth v. Smeaton, 465 Mass. 752, 756 (2013).
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security officer employed by the university, who was stationed
by the bicycle racks because the area was a high-crime area for
bicycle theft.
Approximately twenty minutes after the broadcast, Officer
Good saw two men fitting the broadcast description, along with a
female, pass his car from the direction of the library. The
three people in the group were the defendant, the other male,
Dakari Ferguson-Boone, and the female, Dajunnay Wade-Joseph.3
The defendant and Ferguson-Boone were seated on bicycles,
although Wade-Joseph had no bicycle and the three were walking
together. Officer Good got out of his car and called out to the
group, asking if he could speak to them, but they continued to
move away.
Officers Sprague and Sweeney then approached the group.
Officer Sweeney said hello and asked if he could speak to the
three. Although the exact details and timing of the ensuing
conversations are not spelled out in the judge's findings,
initially the officers stated to the group that there had been a
number of bicycle thefts in the area, and asked where the group
was coming from. The companions responded that they had eaten
at Popeye's, a restaurant in the campus food court; at least one
of the group was carrying a container from that restaurant.
3 The defendant does not contest the motion judge's factual
finding that he and Ferguson-Boone matched the description in
the broadcast.
5
Soon thereafter a third officer arrived, Officer Jim
Cooney, and three separate conversations ensued, in close
proximity. Officer Sprague spoke with the defendant, Officer
Sweeney spoke with Ferguson-Boone, and Officer Cooney with Wade-
Joseph. The motion judge found that "[t]he officers' tone of
voice was casual, conversational, and nonthreatening." The
officers asked the two men to get off the bicycles and they
complied, placing the bicycles on the ground. The officers
asked whether the men had stolen the bicycles, and they
responded that they had not.
Officer Sprague asked the defendant if he had previously
had issues with the police, and he responded by raising his pant
leg, revealing a GPS-monitored ankle bracelet. Officer Sprague
then asked the defendant for identification, and the other two
officers followed suit, asking for identification from Ferguson-
Boone and Wade-Joseph. The defendant did not produce
identification, but did orally provide his name, date of birth
and address. Officer Sprague then stepped a short distance away
from the group to call in the defendant's information to police
dispatch, in order to conduct a criminal history and warrant
check. Ferguson-Boone provided some form of identification
card, which Officer Sweeney took and held, waiting for Officer
Sprague to complete his conversation with dispatch. Wade-Joseph
produced her university student identification card. While
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these conversations were occurring, Officer Good and another
officer came on the scene but "stood a distance away from the
ongoing conservations."
As Officer Sprague was calling in the defendant's
information, Officer Sweeney observed the defendant make a
movement to his left side, causing his sweatshirt to ride up and
expose a knife clipped inside of his waistband. Officer
Sweeney, "concerned for his and other officers' safety[,]
grabbed the knife handle to remove it."
Officer Cooney then told the defendant to place his hands
on his head because he intended to conduct a patfrisk. The
defendant began to comply, but then fled, chased by Officer
Good. While fleeing, the defendant dropped the firearm that is
the subject of the motion to suppress.
The motion judge did not make a finding as to how long the
encounter lasted from the time the officers first engaged the
group until the defendant fled. The witnesses gave a range of
estimates, but the record reflects that the encounter was
approximately ten to fifteen minutes.
The defendant was ultimately located and arrested, and
charged with illegal possession of a firearm, in violation of
G. L. c. 269, § 10(a); illegal possession of ammunition, in
violation of G. L. c. 269, § 10(h)(1); and carrying a loaded
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firearm without a license (FID card), in violation of G. L.
c. 269, § 10(n).
b. Pretrial proceedings. The defendant filed a motion to
suppress all items seized. After an evidentiary hearing, the
motion judge denied the defendant's motion, finding that "[t]he
initial encounter was not a stop or seizure" prior to the time
the officer saw and seized the knife. The judge stated that
asking the defendant for biographical information did not effect
a seizure, and continued, "The fact that there were three
officers speaking to the defendant and his friends does not make
the consensual encounter a seizure. Each officer spoke
separately to [the defendant] and his two friends. [Officers]
Good and Cooney did not engage in conversation and stood about
100 yards from the interaction."
Finally, the judge concluded that the seizure of the knife
was justified because it was a dangerous weapon on school
grounds. See G. L. c. 269, § 10(j).
c. Trial. After a bench trial upon stipulated facts, the
trial judge found the defendant guilty of all three charges and
allowed the Commonwealth's dismissal of the charge of possession
of ammunition without an FID card. This appeal followed.
2. Discussion. a. Motion to suppress. We deal first
with the motion to suppress. The defendant's principal
contention is that he and his two companions were stopped or
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seized for constitutional purposes well before Officer Sweeney
saw the knife on the defendant's person, that this initial stop
or seizure was not justified by reasonable suspicion and was
thus unlawful, and that the gun, and the defendant's arrest, are
the fruits of that unlawful stop or seizure. The Commonwealth
counters that the initial encounter was merely a field
interrogation observation (FIO) -- an informal and voluntary
conversation with the police that the defendant and his friends
were free to exit. The motion judge agreed with the
Commonwealth, concluding that no stop occurred until the officer
saw and seized the knife, at which point a seizure was fully
justified.
i. Stop and seizure. The first issue is when the stop or
seizure occurred for constitutional purposes under the above
facts. The legal standard is well settled: whether, "in view
of all the circumstances surrounding the incident, a reasonable
person would have believed he was not free to leave."
Commonwealth v. Meneus, 476 Mass. 231, 234-235 (2017), quoting
from Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001). In
applying this standard, "we accept the [motion] judge's
subsidiary findings of fact absent clear error." Commonwealth
v. Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v.
Eckert, 431 Mass. 591, 592 (2000). Accord Commonwealth v.
Lyles, 453 Mass. 811, 814 (2009). "However, we review
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independently the motion judge's application of constitutional
principles to the facts found." Commonwealth v. Franklin, 456
Mass. 818, 820 (2010).
The case law makes clear that police are free to approach
persons on the street, to engage in conversation, and to ask
questions of them, without such encounters raising
constitutional issues. The police are not different from
ordinary persons in this regard. The persons approached, of
course, have no obligation to respond and are free to walk away.
If the police communicate otherwise -- by word or action -- that
the person they are speaking to is not free to terminate the
conversation or to walk away, then the situation changes and
reasonable suspicion, at least, is required. In applying the
"free to leave" standard, courts evaluate whether the police
have applied coercive power, such that a person's liberty to
walk away has been materially restrained. See Barros, 435 Mass.
at 174-176.
The question is an objective one, based upon the totality
of the circumstances, and although the answer in any particular
case is necessarily fact-dependent, we have some helpful guide
posts. In Lyles, 453 Mass. at 813-814, the Supreme Judicial
Court held that where a police officer asks for and obtains an
identification card (ID card) from a subject, a "seizure" has
occurred for constitutional purposes -- at least while the
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officer retains the ID card. The court reasoned that given the
importance of identification, such as a driver's license, in
today's society, a person who has relinquished his
identification would not feel free to terminate the encounter
and leave. See id. at 815-816. Nor would such a person feel
that he could demand that the identification be immediately
returned. See also Barros, 435 Mass. at 175-176 (officer's
follow-up command to "come here" sufficient to constitute a
stop); Commonwealth v. Depina, 456 Mass. 238, 241-242 (2010);
Commonwealth v. Evans, 87 Mass. App. Ct. 687, 689-693 (2015).
On the facts here we conclude that a stop occurred, for
constitutional purposes, at least by the time the officers
secured identification from each of the companions and began
calling in that information so that record checks could take
place. By that point, what began as an informal "field
interrogation" had crossed the line into a coercive exercise of
police power. The men had been asked to alight from their
bicycles. The interrogation had lasted for several minutes and
had taken on a more formal character, with three separate
conversations ongoing. And once identification was requested,
received, and called in, we do not believe any of the subjects,
objectively, would reasonably have felt free to leave. See id.
at 690. Under Lyles, a stop and seizure had clearly occurred
with respect to each of the defendant's companions, and we do
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not think the defendant's circumstances were materially
different. He had provided his personal information orally, and
Officer Sprague was engaged in calling it in. See Lyles, 453
Mass. at 813-816. Our conclusion is buttressed by Officer
Sprague's testimony that while he was calling in to dispatch,
the other officers were "keeping their eye" on the defendant and
Ferguson-Boone "so that neither . . . would leave while [Officer
Sprague] was getting that information."
ii. Reasonable suspicion. Having concluded that a stop
occurred for constitutional purposes prior to the observation of
the knife, the next question is whether, at the time of the
stop, the police had the requisite reasonable suspicion. Under
our cases, a stop requires reasonable suspicion of identifiable
criminal activity -- "that a person has committed, is
committing, or is about to commit a crime." Commonwealth v.
Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v.
Silva, 366 Mass. 402, 405 (1974). We conclude that at the time
of the stop, the officers lacked such reasonable suspicion.4
When the police first approached the group they knew (1)
that there had been a report, then twenty minutes old, that two
men had been observed "casing" the university's bicycle racks,
4 No argument was advanced that the defendant was entitled
to less constitutional protections due to his ankle bracelet, so
we do not address that issue.
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(2) that the two men in the group matched the description given,
and (3) that those two men were now on bicycles.
On the above facts it was surely reasonable for the
officers to approach the men to investigate possible bicycle
theft, which is what the officers did. They approached and
asked, inter alia, questions directed to how the men had
obtained the bicycles. Indeed, the officers did so initially
without effecting a stop or seizure in the constitutional sense;
the initial questioning was consensual and noncoercive. But
importantly, over the next several minutes they learned nothing
that could have added to their suspicions. The men stated the
bicycles were not stolen. One of the group was a student at the
university, and their explanation that they had been in the food
court was readily verifiable from the food they carried. And
the police testified, at the motion to suppress hearing, both
that they had no reason to disbelieve the men and that they had
no knowledge that any bicycle theft had occurred.
At that point, once the police had knowledge that the
bicycles were not stolen, they had no basis to effect a
constitutional seizure because there was not then a reasonable
basis to believe that a crime had occurred, or was likely to
occur. The only possible criminal activity they were aware of
involved bicycle theft. But they had no information that
bicycle theft had actually occurred, and while observed "casing"
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can, of course, be a basis for a stop, there must be reasonable
suspicion at the time of the stop that a crime is likely to
occur. See Terry v. Ohio, 392 U.S. 1, 6 (1968). Here, there
was no sign that a theft was likely -- the men were encountered
some distance from and moving away from the bicycle racks, with
lunch in their hands. If any "casing" had occurred previously,
it had plainly ended some time ago.
The touchstone of search and seizure law is reasonableness,
and in this context reasonableness has at least two dimensions -
- the reasonableness of initiating an encounter, and the
reasonableness of the scope of the encounter. See Commonwealth
v. Gomes, 453 Mass. 506, 509 (2009), quoting from Commonwealth
v. Wilson, 441 Mass. 390, 393-394 (2004) ("In 'stop and frisk'
cases our inquiry is two-fold: 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"). Here, there was no sound
basis for the police to extend the encounter beyond its initial
purpose by requesting identification and conducting a criminal
history or warrant check. By the time the constitutional stop
and seizure occurred, reasonable suspicion was lacking.
Just recently in Commonwealth v. Cordero, 477 Mass. 237
(2017), the Supreme Judicial Court expressed a similar principle
in the context of a traffic stop that turned into an arrest for
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possession of drugs. There, the police lawfully stopped the
defendant for a broken taillight, broken brake lights, and an
impermissible degree of window tint. See id. at 242. However,
the police prolonged the stop by questioning the driver about
his travel history that day, and maintained the stop well after
the time needed to document the results of the traffic
investigation. See id. at 242-247. The continued questioning,
which included repeated requests to search the vehicle,
ultimately resulted in a search of the vehicle's trunk, in which
the officers found a considerable amount of what they believed
to be heroin. See id. at 240-241.
The Supreme Judicial Court concluded the drugs must be
suppressed. While the initial stop was lawful, "[a] routine
traffic stop may not last longer than 'reasonably necessary to
effectuate the purpose of the stop.'" Id. at 241 (citation
omitted). The court stated:
"Ultimately, by the time the trooper finished discussing
with the defendant the broken lights and the window tint,
the investigation of the civil traffic violations was
complete. Because this investigation did not give rise to
reasonable suspicion of criminal activity, the trooper did
not have a legitimate basis to detain the defendant, and
the defendant should have been allowed to drive away."
Id. at 247.
In this case, the police exercised coercive power to effect
the stop and seizure before they observed or knew anything of
the knife in the defendant's waistband. At the time they
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effected the stop they lacked reasonable suspicion of an
existing or intended crime. The defendant and his companions
accordingly should have been left to move on. The subsequent
seizure of the knife, the defendant's flight, and the recovery
of the gun are all fruits of the unlawful stop and should have
been suppressed.
b. Lack of colloquy before trial on stipulated facts.
Finally, we note that the judgments would have had to be vacated
regardless of our conclusion on the suppression issue, because
the trial judge failed to conduct the required colloquy before
proceeding with the trial based upon stipulated facts. The
defendant stipulated that the seized firearm had been in his
"exclusive possession," that it contained ammunition, and that
he had no "valid FID card." These facts constituted all the
elements of the crime charged, and the stipulation was thus the
equivalent of a guilty plea. A judge may not conduct a trial on
such stipulated facts without first having a colloquy to
establish the defendant's knowing and voluntary waiver of his
constitutional rights, including rights against self-
incrimination and to confront the witnesses against him. See
Commonwealth v. Lewis, 399 Mass. 761, 763-764 (1987).
Here, the trial judge conducted a colloquy regarding the
defendant's waiver of trial by jury, but did not conduct the
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required colloquy regarding the defendant's stipulation to facts
that established guilt.
3. Conclusion. The judgments are vacated, and the
findings are set aside.
So ordered.