Commonwealth v. Hilaire

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16-P-1528 Appeals Court
COMMONWEALTH vs. JAMES CHARLES HILAIRE.
No. 16-P-1528.
Plymouth. October 6, 2017. - February 21, 2018.
Present: Wolohojian, Maldonado, & Wendlandt, JJ.
Armed Home Invasion. Robbery. Firearms. Constitutional Law,
Search and seizure, Reasonable suspicion. Search and
Seizure, Reasonable suspicion. Evidence, Judicial notice.
Practice, Criminal, Motion to suppress, Findings by judge.
Indictments found and returned in the Superior Court
Department on October 29, 2014.
A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Fernande R. V. Duffly, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
David D. Nielson for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. At issue is whether there was reasonable
suspicion to stop the defendant and search his backpack several
2
hours after an armed home invasion had occurred nearby. Taking
judicial notice of demographic data he located on his own
initiative, the Superior Court judge concluded there was
reasonable suspicion and denied the defendant's motion to
suppress. The demographic data should not have been relied
upon, both because the judge should not have expanded the
factual record with independent research taken on his own
initiative without notice to the parties and because they were
not relevant. Nonetheless, we affirm the denial of the motion
to suppress because we conclude that the facts elicited at the
evidentiary hearing established reasonable suspicion to stop the
defendant.1
On July 29, 2014, at approximately 3:05 A.M., East
Bridgewater police responded to the area of 601 North Central
Street to investigate a report of an armed home invasion with
shots fired.2 It was reported that a large amount of cash and
jewelry had been taken. The suspects were described as several
young black males, two of whom were carrying backpacks. There
was no further description of the men, their features, or their
1
The case is before us on the defendant's interlocutory
appeal, which was allowed by a single justice of the Supreme
Judicial Court.
2
We recite the facts as the judge found them, supplemented
by undisputed facts established during the evidentiary hearing
on the motion to suppress because the judge credited the sole
witness's testimony. See Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015).
3
appearance, except that they were said to be wearing "regular
clothes."
A short time after the home invasion, three black men fled
from a red Toyota Camry in front of 505 North Central Street,
leaving the doors of the vehicle open as they ran into
neighboring woods. 505 North Central Street is only about 100
yards from the location of the home invasion.
A large number of officers converged on the scene. One of
them, Talitha Connor, stood near the abandoned Toyota while
other officers searched the woods. As she was positioned there,
Connor observed a black Acura driving up and down North Central
Street. Connor stopped the vehicle and asked its driver, Ashley
Smith, what she was doing. Smith responded that she was lost
and trying to get back to Brockton. Connor allowed Smith to go
on her way, but wrote the registration number of the vehicle on
her hand.
Officer Dennis Andre was called in to duty around 5:00 A.M.
Andre's first assignment was to transport to the station a
slender-built black male who had been taken into custody in
connection with the home invasion. Andre then returned to the
area near the scene to continue patrolling for the two suspects
who remained at large.
At approximately 7:15 A.M., Andre saw a dark-colored sedan
"bang[] a U-turn" in the middle of an intersection during a red
4
light. He stopped the vehicle, which was driven by Ashley
Smith, and radioed in the registration information. Smith again
explained she was lost and trying to get back to Brockton.
Andre gave Smith directions, which he testified as just
"basically two streets, and then you're [on] Plain Street in
Brockton." Smith responded that "she was familiar with Plain
Street in Brockton and could make it home from there."
Andre then returned to the station where he learned from
Connor about her earlier encounter with Smith, and the fact that
Smith had given both of them the same explanation for her
presence in the area. Because Connor had written the
registration on her hand, the two officers were able to confirm
that Smith was driving the same vehicle on both occasions.
Andre returned to his patrol. Around 8:00 A.M., he
observed the same vehicle. Smith was again at the wheel, and
was talking on a cellular telephone (cell phone). She was
traveling from Brockton into East Bridgewater towards the North
Central Street area. Andre stopped the vehicle and asked Smith
why she had returned to East Bridgewater given her earlier
repeated statements about wanting to go to Brockton instead.
Smith stated that she was returning to her mother's friend's
house. Andre asked with whom she had been speaking on the cell
phone. Smith denied having a cell phone. Andre remarked that
he had just seen her on the cell phone, prompting Smith to no
5
longer deny the cell phone's presence but instead to claim it
was her mother's cell phone. Smith retrieved the cell phone
from the driver's side door panel, handed it to Andre, and
consented to his looking at it. Andre saw a recent text message
time-stamped 7:51 A.M. that read, "Did you pick him up yet?"
Although Smith claimed she knew nothing about the message, she
acknowledged that the cell phone had been in her possession all
day. Smith was asked to accompany other officers to the station
for further questioning.
Andre returned to his patrol. At around 9:00 A.M., he
heard a radio report that a black male wearing a backpack had
been spotted walking on North Central Street. Andre drove to
the location immediately and saw the defendant, a black male,
with a backpack, walking by himself on the sidewalk while
talking on a cell phone. He was approximately one-half mile
from the site of the crime.
Andre parked his cruiser halfway on the sidewalk just ahead
of the defendant, and approached to speak with him. The officer
asked the defendant where he was coming from, and he responded
by turning around and pointing toward 601 North Central Street.
Andre said he wanted to look in the defendant's backpack, and
the judge found that "[t]he defendant did not argue but rather
acquiesced to [Andre's] request." Inside were large amounts of
currency and jewelry.
6
The defendant was indicted on five counts of armed home
invasion, G. L. c. 265, § 18C; three counts of armed robbery
while masked, G. L. c. 265, § 17; and one count of unlawful
possession of a firearm, G. L. c. 269, § 10(a). He filed a
motion to suppress on the ground that there was no reasonable
suspicion to stop him. In essence, he argued then (and argues
now) that given the lack of particularity in the description of
the suspects (young black men wearing regular clothes and
backpacks), and the temporal (six hours) and spatial (one-half
mile) distance from the crime, there was no reasonable suspicion
that he "was committing, had committed, or was about to commit a
crime." Commonwealth v. Warren, 475 Mass. 530, 534 (2016),
quoting from Commonwealth v. Martin, 467 Mass. 291, 303 (2014).
The motion judge conducted an evidentiary hearing at which
Andre was the sole witness, and later denied the motion in a
detailed written memorandum. The judge determined that the
defendant had been seized when Andre said he wanted to look in
the defendant's backpack. The judge accordingly analyzed
whether reasonable suspicion existed at that moment in time. As
part of that analysis, he considered the factors laid out in
Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554-556 (2002),
and found that "the physical description of the suspects was
general and lacking in detail. The area is not a high crime
area and the defendant took no evasive action when confronted by
7
[Andre]. More importantly[,] over six hours had elapsed between
the time the suspects fled into the woods and the time the
defendant was stopped."3 None of these findings is clearly
erroneous. In addition, the judge correctly stated the law
that, while a description "need not be so particularized as to
fit only a single person, . . . it cannot be so general that it
would include a large number of people in the area where the
stop occurs." Commonwealth v. Depina, 456 Mass. 238, 245-246
(2010). The judge then continued by reasoning that:
"A description of the suspects 'as young black men
wearing backpacks' may, depending on geography, fit a
large number of men in the area. However, that is not
likely in East Bridgewater. Although there was no
evidence presented on the point, I take judicial
notice of the fact that the African-American, black
population of East Bridgewater is decidedly small.
According to the records of the United States Census
Bureau, less than 1% of the population of East
Bridgewater was black or African-American as of July,
2014."
Discussion. In reviewing a ruling on a motion to suppress
we "review independently the application of constitutional
principles," but "we accept the judge's subsidiary findings of
fact absent clear error" (quotations omitted). Commonwealth v.
Leslie, 477 Mass. 48, 53 (2017). "Our review . . . is based on
the facts as developed at the suppression hearing, . . . "
Commonwealth v. Dame, 473 Mass. 524, 536, cert denied, 137 S.
3
The judge also correctly noted that the gravity of the
crime and the danger of the circumstances could be weighed
favorably in the reasonable suspicion calculus.
8
Ct. 132 (2016), quoting from Commonwealth v. Johnson, 461 Mass.
44, 48 (2011), where the judge has "the responsibility of
determining the weight and credibility to be given . . . [the]
testimony presented," Commonwealth v. Wilson, 441 Mass. 390, 393
(2004), and where the parties have the opportunity to examine
and cross-examine the witnesses. We are presented here with
subsidiary findings that do not rest solely on evidence obtained
through this customary procedure. Instead, the judge's
subsidiary findings rest in part on information he obtained
through independent research, apparently conducted on the
Internet,4 of which he took judicial notice, after the
evidentiary hearing had concluded, and without notice to (or
input from) the parties. Our first question, therefore, is
whether we must accept subsidiary fact findings made in this
manner even though they have not been shown to be clearly
erroneous. We conclude for several reasons that we do not.
We begin by noting that we have not found, nor have the
parties pointed us to, any reported decision, in this
jurisdiction or elsewhere, in which adjudicative facts5 found by
4
The parties at oral argument were in agreement that the
information was apparently obtained from the Internet.
5
Adjudicative facts are "the kind of facts that go to a
jury in a jury case," Reid v. Acting Commr. of the Dept. of
Community Affairs, 362 Mass. 136, 142 (1972), quoting from
Davis, Administrative Law Treatise, § 7.02. By contrast,
"[l]egislative facts are those facts, including statistics,
9
judicial notice have formed the basis for ruling on a motion to
suppress. This is not surprising because suppression hearings
are critical proceedings, at which the defendant has the
constitutional right to be present, to present evidence, and to
cross-examine the Commonwealth's witnesses,6 see Robinson v.
Commonwealth, 445 Mass. 280, 285-286 (2005); Doe v. Sex Offender
Registry Bd. No. 941, 460 Mass. 336, 340 (2011); see also
Mass.R.Crim.P. 18(a), 378 Mass. 888 (1979), and taking judicial
notice of subsidiary facts in the manner the judge did here
threatened these rights. Moreover, although demographic data
published by the United States Census Bureau is the type of
information susceptible to judicial notice, see Mass. G. Evid.
201(b)(2) (2017), it is not appropriate to use the mechanism of
judicial notice to connect a defendant to the description of
suspects or to a crime. See Mass. G. Evid. § 201(c) ("a court
shall not take judicial notice in a criminal trial of any
policy view, and other information, that constitute the reasons
for legislation or administrative regulations." Mass. G. Evid.
§ 201 note, at 23 (2017). The demographic data at issue here
are adjudicatory facts because they bear on the identification
of the defendant as one of the perpetrators of the home
invasion, a matter for the jury.
6
These rights are not waived simply by the defendant's
absence, even where that absence is voluntary. See Robinson v.
Commonwealth, 445 Mass. 280, 288 (2005) ("The defendant's waiver
of the right to be present at the hearing, however, does not
imply waiver of other constitutional rights, including the right
to the suppression hearing itself and the right to effective
assistance of counsel at that hearing").
10
element of an alleged offense"); Commonwealth v. Kingsbury, 378
Mass. 751, 755 (1979). The identity of the person who
committed, or is suspected of committing, a crime is not a
matter amenable to judicial notice. Even in situations where
judicial notice is appropriate, it should not be taken without
notice to the parties and an opportunity to be heard. See Mass.
G. Evid. 201(d) and commentary thereto; Department of Revenue v.
C.M.J., 432 Mass. 69, 76 n.15 (2000) (and cases cited) (parties
have right to notice of matters court will adjudicate).7
There is an independent reason why the judge should not
have turned to the demographic data here, regardless of its
apparent reliability. The information was not relevant either
to (1) determining the moment the defendant was seized in a
constitutional sense, or (2) determining whether, at that
moment, there was reasonable suspicion to believe the defendant
had committed, was committing, or was about to commit a crime.
The latter "depends on . . . the facts and circumstances within
the officer's knowledge at the time." Dame, 473 Mass. at 536
(quotation omitted). See ibid. (in the context of probable
7
We take this opportunity to stress that judges should use
great caution before conducting independent research into
factual matters, particularly on the internet. See S.J.C. Rule
3:09, Canon 2.9(C) (2016) ("A judge shall consider only the
evidence presented and any adjudicative facts that may properly
be judicially noticed, and shall not undertake any independent
investigation of the facts in a matter.) See also American Bar
Association Formal Opinion 478, Independent Factual Research by
Judges Via the Internet (Dec. 8, 2017).
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cause); Commonwealth v. Meneus, 476 Mass. 231, 234 (2017) (in
the context of reasonable suspicion). Reasonable suspicion
cannot rest on later-developed facts not shown to have been
known to officers at the relevant time.
For all of these reasons, the judge should not have taken
judicial notice of demographic data to support his conclusion
that reasonable suspicion existed. We therefore set those
findings aside and do not consider them in our independent
application of constitutional principles to the remaining facts.
For purposes of our analysis, we accept the judge's finding that
the defendant merely acquiesced, and did not consent, to the
taking and search of his backpack, see Commonwealth v.
Greenberg, 34 Mass. App. Ct. 197, 201–202 (1993) ("Whether one
who hands his property over to the police at their request
voluntarily consents, or merely acquiesces to a claim of lawful
authority, presents a question of fact. See Smith, Criminal
Practice & Procedure § 252 [1983]"), and therefore assess the
existence of reasonable suspicion as of that moment.8 "That
suspicion must be grounded in 'specific, articulable facts and
reasonable inferences [drawn] therefrom' rather than on a
8
Although the defendant argues that he was seized when
Andre parked his cruiser half on the sidewalk in front of the
defendant, the point is academic since reasonable suspicion
existed at both times. We further note that the defendant makes
no argument regarding the search or seizure of the backpack
other than that there was no reasonable suspicion at the moment
he was stopped.
12
'hunch.'" Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),
quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
"Reasonable suspicion is measured by an objective standard,
. . . 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." Meneus, 476 Mass. at 235, quoting from
Warren, 475 Mass. at 534. A general description that fails to
"distinguish the suspect from other individuals," Doocey, 56
Mass. App. Ct. at 554, cannot alone support a finding of
reasonable suspicion. See Commonwealth v. Cheek, 413 Mass. 492,
497 (1992); Warren, supra at 540.
Were it standing alone, we would agree with the defendant
that the description of the suspects in this case (three young
black males wearing regular clothes, two with backpacks) was
insufficiently particularized to support reasonable suspicion.
But "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 investigation." Meneus,
476 Mass. at 237. Here, it was enhanced by the fact that the
defendant was found not far from the location of the crime and
under circumstances that made it likely the suspect was still in
the area. Where, as here, it is a short distance between the
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location of the crime and the location the defendant was
stopped, "[p]roximity is accorded greater probative value in the
reasonable suspicion calculus." Warren, 475 Mass. at 536.
Although it is true that six hours had already elapsed since the
commission of the crime, it was a fair inference from Smith's
repeated circling of the area (which began shortly after the
crime), her disingenuous explanations for her presence, the fact
that she had not "yet" picked "him" up, and the fact that she
was in cell-phone communication with someone on this subject not
long before the defendant was spotted, that the suspect likely
remained in the immediate area. See Doocey, 56 Mass. App. Ct.
at 556 (likeliness that a defendant will be found in the area
where police are searching is relevant to reasonable suspicion
calculus). Contrast Warren, supra at 537 (concluding there was
no "rational relationship" between the timing and location of a
stop where an officer had no reason to be looking for a suspect
in the area where the defendant was stopped). Finally, we also
take into consideration the "gravity of the crime and the
present danger of the circumstances," Meneus, supra at 239 --
here, a serious armed robbery with shots fired. "[T]he fact
that the crime under investigation was a shooting, with
implications for public safety," added to the reasonable
suspicion calculus. Ibid.
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For these reasons, we affirm the order denying the
defendant's motion to suppress.
So ordered.