Commonwealth v. Jones

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
18-P-1195 Appeals Court
COMMONWEALTH vs. MAURICE JONES.
No. 18-P-1195.
Suffolk. January 10, 2019. - July 22, 2019.
Present: Wolohojian, Neyman, & Singh, JJ.
Search and Seizure, Protective frisk, Reasonable suspicion,
Fruits of illegal search, Threshold police inquiry.
Threshold Police Inquiry. Constitutional Law, Search and
seizure, Reasonable suspicion, Admissions and confessions.
Practice, Criminal, Motion to suppress, Admissions and
confessions. Evidence, Admissions and confessions, Result
of illegal search.
Indictments found and returned in the Superior Court
Department on June 26, 2013.
Pretrial motions to suppress evidence were heard by Linda
E. Giles, J.
An application for leave to prosecute an interlocutory
appeal was allowed by David A. Lowy, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
him to the Appeals Court.
Ian MacLean, Assistant District Attorney (Julie S. Higgins,
Assistant District Attorney, also present) for the Commonwealth.
James L. Sultan (Catherine J. Hinton also present) for the
defendant.
2
WOLOHOJIAN, J. This interlocutory appeal stems from
motions to suppress1 that the defendant filed in anticipation of
his third trial on indictments charging murder in the first
degree and other charges relating to the April 17, 2012 fatal
shooting of Dinoriss Alston and nonfatal shooting of Ashley
Platt.2 After conducting an extensive evidentiary hearing,3 a
Superior Court judge allowed4 the defendant's motions and
suppressed statements that the defendant and his mother had made
1 The defendant's initial motion sought to suppress his own
statements to police. After the evidentiary hearing on that
motion, the defendant filed a posthearing memorandum seeking to
suppress his mother's statements to police.
2 On June 26, 2013, the defendant was indicted on charges of
murder in the first degree, G. L. c. 265, § 1, armed assault
with intent to murder, G. L. c. 265, § 18 (b), assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A, and
unlawful possession of a firearm, G. L. c. 269, § 10 (a). The
case was first tried in 2014, ending in a mistrial after the
jury failed to reach a verdict. The case was retried in 2015,
and a jury convicted the defendant of all charges except for the
armed assault with intent to murder. In 2017, the Supreme
Judicial Court vacated the convictions because of irregularities
in the jury selection process, and remanded for a new trial.
See Commonwealth v. Jones, 477 Mass. 307 (2017). The motions
that underlie this appeal were filed after that remand and in
anticipation of the third trial.
3 The hearing took place over the course of five days and
testimony was received from eight witnesses.
4 In her initial order the judge suppressed only the
defendant's statements during the first encounter and the
mother's statements during the second encounter. However, after
the defendant moved for reconsideration, the judge amended the
order and suppressed the defendant's statements during the third
encounter as well. This appeal is from the motion judge's
amended memorandum and order.
3
during three encounters with police on the day of the shooting.
The first encounter occurred when police stopped the defendant
nearly one-half hour after the shooting to ask him if he knew
anything about it. At the beginning of this encounter, the
police pat frisked the defendant without reasonable suspicion.
The defendant then made certain exculpatory statements, which we
conclude the motion judge properly suppressed as fruit of the
poisonous tree. See Wong Sun v. United States, 371 U.S. 471,
487-488 (1963). The second encounter occurred minutes later at
the defendant's home, where police went to speak with his mother
to see if she would confirm what the defendant had just told
them. Unlike the motion judge, we conclude that the mother's
statements were sufficiently attenuated from the initial
illegality that they should not be suppressed as fruit of the
poisonous tree. The third encounter occurred later the same day
when police, having additional information tying the defendant
to the description of the shooter, located him to ask further
questions. These statements did not fall within the "cat-out-
of-the-bag" doctrine, see Commonwealth v. Mahnke, 368 Mass. 662,
686 (1975), cert. denied, 425 U.S. 959 (1976), as the motion
judge concluded, nor was suppression required under the other
theories raised by the defendant.
4
Background.5 At around 4 P.M. on April 17, 2012, Dinorris
Alston and his girlfriend, Ashley Platt, were sitting in a car
parked near a park located between Dunreath and Copeland Streets
in the Roxbury section of Boston. Shots were fired into the
car, killing Alston and wounding Platt, who managed nonetheless
to drive to a nearby gas station for help. As she drove from
the scene of the shooting, Platt saw a man walking away.
When an officer arrived at the gas station, Platt told him
that the shooter was a black male wearing a white T-shirt and
khaki pants. That description was broadcast over police radio
at 4:08 P.M. Hearing that description and a report that shots
had been fired, Officer Brian Johnson decided to look for the
defendant in order to speak with him. He knew that the
defendant frequented the park and the area where the shooting
had occurred, and he had many times before conducted a field
interrogation and observation6 of the defendant in the area of
Dunreath and Copeland streets, including the week before. But
5 We summarize the motion judge's detailed findings,
supplementing them with additional uncontroverted facts from
testimony the motion judge implicitly credited. See
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008).
6 "A 'field interrogation [and] observation' has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009).
5
Johnson had never seen the defendant with a gun and did not know
him to have any prior firearm convictions. Moreover, Johnson
had never had any problems with the defendant and had no
information connecting the defendant to the shooting. At the
time he went looking for the defendant, Johnson was in an
unmarked car, and he was wearing plainclothes and his badge.
Johnson located the defendant around 4:25 P.M. about one
mile away from Dunreath Street. The defendant, a young black
man, was walking by himself and wearing a white T-shirt with a
red and grey graphic design of a winged unicorn on the front
bearing the word "Temptation." He wore khaki cargo-style
shorts, a black baseball cap with a small red pony logo on the
front, and black sneakers.
Johnson pulled over, got out of his car, and asked the
defendant, "What's up?" in a conversational, nonconfrontational
manner. The defendant answered in a calm and natural tone with
"[h]ey," or a similar expression. At this point, Johnson patted
down the defendant's waist and pockets but found nothing.
Johnson then asked the defendant casually what he was doing and
where he was going. The defendant replied that he had been at
his house earlier and that he was going to meet his mother at
Walgreens to add minutes to his cell phone. Officer Michael
Fanning joined Johnson during this conversation, but neither
displayed his firearm or attempted to restrain or handcuff the
6
defendant. The conversation lasted about five minutes in total,
and after a brief consultation with his superior officer by
telephone, Johnson ended the encounter.
The two officers then immediately went around the corner to
the defendant's home, intending to speak to his mother to see if
she would verify what the defendant had told them.7 The officers
did not tell her that they had just spoken to the defendant.
She denied that she was going to accompany the defendant to
Walgreens and said she had not spoken with her son since that
morning. She confirmed that the defendant frequented the area
where the shooting had taken place.
Meanwhile, Platt gave police a more detailed description of
the shooter, which was broadcast: a young black male with khaki
shorts, black "Chuck Taylor" sneakers,8 a white shirt with some
red in it, and a black and red baseball cap.9 Johnson and
7 The mother was not home when the officers arrived but
arrived shortly thereafter and spoke with the officers on the
porch of her home.
8 Although the defendant was wearing black sneakers at the
time he was observed by officers, they were not Chuck Taylor
sneakers.
9 In two subsequent interviews that day, Platt's description
varied slightly. In the first of these interviews, she did not
mention any red in the white shirt. In the second, she
described the hat as black with a red brim.
7
Fanning were ordered to look for the defendant again given this
new description.
They found him at around 5:30 P.M., wearing the same
clothing as before and walking with another man around the
corner from his home. In response to the officers' request, the
defendant agreed to wait to speak with detectives, who arrived
shortly thereafter and engaged the defendant in a cordial
conversation conducted at a normal speaking volume. The
officers did not pat frisk the defendant (who seemed a little
nervous, jittery, and excitable), restrain him, display weapons,
or make any show of authority. During this conversation, the
defendant said that he had not been in the area of the shooting
but instead had been home for the day. He agreed to have his
photograph taken and to submit to a gunshot residue test, but he
declined to be transported to the hospital for Platt to view.
The defendant ultimately ended the encounter, which lasted
between eight and ten minutes.
Discussion. The Commonwealth argues that the motion judge
erred in allowing the defendant's motions to suppress, because
(1) reasonable suspicion justified the initial patfrisk of the
defendant,10 (2) even if the frisk was unlawful, the mother's
10Although the Commonwealth argued below that the patfrisk
did not constitute a seizure of the defendant for constitutional
purposes, it does not make this argument on appeal.
8
later statements were not fruit of the poisonous tree, and (3)
the motion judge improperly applied the "cat-out-of-the-bag"
doctrine to the defendant's statements during the third
encounter. In reviewing the judge's ruling, we accept the
judge's subsidiary findings unless clearly erroneous, see
Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439
U.S. 280 (1978), but make an "independent determination on the
correctness of the judge's 'application of constitutional
principles to the facts as found,'" Commonwealth v. Haas, 373
Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), quoting
Brewer v. Williams, 430 U.S. 387, 403 (1977).
1. First encounter. "[P]olice 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."
Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). "That
suspicion must be grounded in 'specific, articulable facts and
reasonable inferences [drawn] therefrom' rather than on a
'hunch.'" Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),
quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
"[T]he 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. Meneus, 476 Mass. 231, 235
9
(2017), quoting Commonwealth v. Warren, 475 Mass. 530, 534
(2016).
For the reasons that we set out below, we are not persuaded
by the Commonwealth's argument that the following factors
provided reasonable suspicion to pat frisk the defendant: (i)
the "match" between the defendant and the initial broadcast
description of the shooter, (ii) the defendant's geographic and
temporal proximity to the location of the shooting, (iii) the
fact that the defendant frequented the area where the shooting
occurred, and (iv) the nature of the offense being investigated.
We examine each of these factors in turn.
First, when the defendant was pat frisked, the description
of the shooter was nonspecific, consisting only of a black male
wearing a white T-shirt and khaki pants. A description of a
perpetrator sought by police "need not be so particularized as
to fit only a single person, but 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 description here did not meaningfully narrow the
range of possible suspects and, thus, did not substantially
contribute to the reasonable suspicion analysis. See Warren,
475 Mass. at 534-537 (no reasonable suspicion where defendant
and another individual "matched" description of two black males
wearing dark clothing); Commonwealth v. Cheek, 413 Mass. 492,
10
496 (1992) (description of suspect as "black male with a black
3/4 length goose" jacket not sufficiently particularized to
support reasonable suspicion where defendant was one-half mile
from the scene of the reported stabbing).
Moreover, to the extent the defendant's "match" to the
general description had any value, it was largely offset by the
aspects of his appearance tending to exclude him from the
description: the defendant wore shorts, not pants, and wore a
shirt with a distinctive unicorn graphic that was not mentioned
in the initial description. See Meneus, 476 Mass. at 237
(distinctive clothing of defendant not mentioned in description
of perpetrator detracted from reasonable suspicion analysis).
"Unless the police were able to fortify the bare-bones
description of the perpetrator[] with other facts probative of
reasonable suspicion, the defendant was entitled to proceed
uninhibited" down the street. Warren, 475 Mass. at 536.
Second, the defendant was stopped about one mile away from
the scene of the crime, and about twenty-five minutes
afterwards, as was the precise case in Commonwealth v. Warren,
475 Mass. at 536. As in Warren, which also involved a crime in
the Roxbury section of Boston, we note that "given the nearly
thirty-minute time period between [the offense] and the stop
. . . , the suspect[] could have traveled on foot within a two
11
mile radius of the crime scene." Id. at 536-537.11 Thus,
although temporal and geographic proximity to the crime can
contribute to the reasonableness of a stop, see Commonwealth v.
Doocey, 56 Mass. App. Ct. 550, 554-555 (2002), it was not
particularly meaningful here. Indeed, Officer Johnson went to
look for the defendant on Cobden Street because he knew it was
near the defendant's home, not because it was near the shooting.
The defendant's presence on a sidewalk right around the corner
from his home on a spring afternoon cannot be said to add much
to the reasonable suspicion calculus.
In addition, nothing about the defendant's appearance or
behavior at the time of the stop gave any reason to think that
he was connected to the crime, fleeing from it, or attempting to
conceal himself. Contrast Commonwealth v. Johnson, 88 Mass.
App. Ct. 705, 712 (2015) (defendant standing among trees in
unlit park that was closed "wearing a hoodie 'tightly' pulled
around his face"). He did not engage in any suspicious
behavior, and he "did not make any furtive gestures or reach
into his pockets in a manner that would suggest that he was
carrying a weapon." Commonwealth v. Villagran, 477 Mass. 711,
11 Although no map was included in the record on appeal, in
Warren, the court noted that depending on the direction taken
from the Roxbury crime scene, various "paths of flight would
lead to different Boston neighborhoods, Dorchester or Jamaica
Plain, in different areas of the city." Warren, 475 Mass. at
537.
12
718 (2017). Instead, he was simply walking on a sidewalk near
his home.
Third, the fact that the defendant was known by police to
frequent the area where the crime took place is of only moderate
value where the area in question is a public park about one mile
from his home. Although the officers knew that the defendant
visited the park frequently, they had nothing connecting him to
the crime or to firearms more generally, and "[he] was not known
to the officers as someone having previously been arrested for
criminal activity." Commonwealth v. Martin, 457 Mass. 14, 21
(2010).
Finally, although we acknowledge that "[t]he gravity of the
crime and the present danger of the circumstances may be
considered in the reasonable suspicion calculus," Depina, 456
Mass. at 247, and that where, as here, shots have been recently
fired, or there is otherwise an imminent threat presented by a
gun, "there is an edge added to the calculus upon which that
reasonable suspicion may be determined," Doocey, 56 Mass. App.
Ct. at 557, the gravity of the crime is not dispositive, see
Meneus, 476 Mass. at 239, and cannot compensate for the absence
of information connecting the defendant to it.12
12The Commonwealth argues that the motion judge erred in
finding that shell casings discovered near the crime scene did
not demonstrate that the weapon used in the shooting "likely
contained additional unused ammunition." We need not resolve
13
Thus, the motion judge correctly determined that the
patfrisk was not supported by reasonable suspicion that the
defendant had committed, was committing, or was about to commit
a crime and was armed and dangerous. The motion judge
accordingly suppressed as fruit of the poisonous tree the
defendant's statements made immediately after the patfrisk
during his initial encounter with the police. See Wong Sun, 371
U.S. at 487-488. The Commonwealth did not argue below, and does
not now argue on appeal, that the defendant's statements during
this first encounter were "sufficiently attenuated from the
underlying illegality [of the patfrisk] so as to be purged from
its taint."13 Commonwealth v. Damiano, 444 Mass. 444, 454
(2005). Instead, the Commonwealth argues that the motion judge
erred in concluding that the mother's statements were also fruit
of the poisonous tree. We turn to that question next.
2. Second encounter. "Evidence obtained by exploiting
unlawful police conduct must be suppressed." Commonwealth v.
Nickerson, 79 Mass. App. Ct. 642, 649 (2011). Nevertheless,
"[e]vidence obtained subsequent to unlawful police conduct does
the issue because, even assuming without deciding that the
Commonwealth is correct, our analysis would be unchanged.
13Accordingly, we do not consider the issue. See
Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006)
(arguments not raised below urging reversal of trial court's
ruling are generally not considered on appeal).
14
not automatically become sacred and inaccessible." Commonwealth
v. Fredette, 396 Mass. 455, 459 (1985). Instead, in each case,
we examine "whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint." Wong Sun, 371 U.S. at 488. "To determine whether the
connection between the evidence and the improper conduct has
become so attenuated as to dissipate the taint, the facts of
each case must be examined in light of three factors: the
temporal proximity of the [unlawful conduct] to the obtaining of
the evidence; the presence of intervening circumstances; and the
purpose and flagrancy of the misconduct" (citation and quotation
omitted). Commonwealth v. Lunden, 87 Mass. App. Ct. 823, 826-
827 (2015). See Commonwealth v. Fredericq, 482 Mass. 70, 81-82
(2019); Commonwealth v. Johnson, 58 Mass. App. Ct. 12, 14
(2003). We examine the first two factors "in conjunction with
each other." Damiano, 444 Mass. at 455. As to the third
factor, "we ask, first, whether the police performed the illegal
act for the purpose of obtaining the evidence that the defendant
seeks to suppress, and second, whether the police knew that
their actions were illegal but proceeded anyway (flagrancy)."
Commonwealth v. Long, 476 Mass. 526, 537-538 (2017). With these
15
general principles in hand, we turn to the specifics of the
mother's encounter with the police.
Although the record does not reflect the precise amount of
time that elapsed between the patfrisk and the officers'
conversation with the mother, it appears to have been quite
brief. The officers went directly to the defendant's nearby
home after their conversation with him, and his mother arrived
at the home shortly after the officers. This temporal proximity
certainly ties the second encounter to the first, but it alone
is not dispositive. See, e.g., Johnson, 58 Mass. App. Ct. at 14
(identification "followed closely" upon illegal stop, but taint
extinguished by intervening circumstances); Commonwealth v.
Manning, 44 Mass. App. Ct. 695, 698-700 (1998) (taint of illegal
arrest dissipated despite short time between arrest and taking
of booking photograph, with no intervening circumstances).
Although the second encounter followed on the temporal and
geographic heels of the first one, other factors separated them.
The officers ended their interaction with the defendant before
beginning the encounter with the mother. The mother was not
involved in the first encounter. And the officers did not tell
the mother anything they learned from the first encounter, or
even say that it had occurred. Contrast Fredericq, 482 Mass. at
82 (officer used unlawfully obtained information to obtain
defendant's consent to search). These intervening circumstances
16
contribute to attenuate any connection between the second
encounter and the illegal patfrisk. See Commonwealth v.
Pearson, 90 Mass. App. Ct. 289, 294 (2016) (temporal attenuation
found where following defendant's arrest and transport to police
headquarters officers conversed with house owner while securing
premises). See also Commonwealth v. Gallant, 381 Mass. 465,
470-471 (1980) (dissipation of taint more likely where
statements at issue are those of third-party witness whose
constitutional rights were not violated).
As to the third factor, the defendant has made no showing
that the purpose of the illegal patfrisk was to obtain the
statements later made by the mother, and in fact, logic and the
record would undermine such an argument. The defendant is on
stronger ground with respect to "flagrancy" in the sense that
every officer can be presumed to know that reasonable suspicion
is required to conduct a patfrisk. However, as the motion judge
reasoned, "the officer's hunch about the defendant being armed,
although legally insufficient, was not unfounded," because "in
the immediate aftermath of a deadly shooting, the defendant was
encountered only about a mile from the scene of the shooting, a
park he frequented, and [partially] matched the minimal
description of the shooter." Thus, although there is no "'good
faith' exception to either the exclusionary rule or the
attenuation doctrine," Fredericq, 482 Mass. at 84, we do not see
17
any error in the judge's conclusion that the patfrisk, although
not supported by reasonable suspicion, was not flagrant
misconduct in the aftermath of a fatal shooting. "In sum, the
third factor of the analysis . . . , which is especially
significant because it is tied to the purpose underlying the
exclusionary rule, does not favor suppression of the evidence."
Commonwealth v. Suters, 90 Mass. App. Ct. 449, 460 (2016).
Although "the exclusionary rule should be invoked with much
greater reluctance where the claim [as here] is based on a
causal relationship between a constitutional violation and the
discovery of a live witness than when a similar claim is
advanced to support suppression of an inanimate object,"
Commonwealth v. Caso, 377 Mass. 236, 244 (1979), quoting United
States v. Ceccolini, 435 U.S. 268, 280 (1978), the defendant
contends that his mother was "coerced into [providing a
statement] by police exploitation of illegal acts." Caso, supra
at 242. In general, "a truly voluntary decision by a witness to
testify should not be overridden unless the extreme
circumstances of a particular case require the suppression of
the testimony as a deterrent to further resort to the unlawful
conduct which resulted in the discovery of the witness." Id. at
241.
Here, although the officers concealed from the mother that
they had already spoken to the defendant, they were otherwise
18
candid and truthful about the incident they were investigating
and its location. The conversation with the mother took place
just outside her home during the afternoon and did not involve
any show of police authority, threats, confrontations, or
promises. Nor did the police imply or suggest that the mother
had any criminal liability or fault. In short, the record is
essentially devoid of evidence suggesting that the mother's
statements were not voluntary.
For these reasons, the mother's statements to officers were
sufficiently distinguishable from the defendant's unlawful pat
frisk "to be purged of the primary taint." Wong Sun, 371 U.S.
at 488.
3. Third encounter. The motion judge suppressed the
defendant's statements made during the third encounter under the
"cat-out-of-the-bag" theory. That doctrine suppresses
statements made after a Miranda violation, see Miranda v.
Arizona, 384 U.S. 436 (1966), because a defendant may believe
that, "after a prior coerced statement, his effort to withhold
further information would be futile and he [has] nothing to lose
by repetition or amplification of the earlier statement[]."
Mahnke, 368 Mass. at 686. We assume for our purposes here --
but expressly do not conclude -- that the defendant's statement
made during the first encounter was obtained in violation of his
19
Miranda rights; nonetheless, the "cat-out-of-the-bag" doctrine
does not apply.
The "cat-out-of-the-bag" doctrine does not apply where
either "(1) after the illegally obtained statement, there was a
break in the stream of events that sufficiently insulated the
post-Miranda statement from the tainted one; or (2) the
illegally obtained statement did not incriminate the defendant,
or, as it is more colloquially put, the cat was not out of the
bag." Commonwealth v. Thomas, 469 Mass. 531, 551 (2014),
quoting Commonwealth v. Prater, 420 Mass. 569, 580 (1995). The
"focus and ultimate goal" of this analysis is "a determination
of the voluntariness of the later confession." Thomas, supra,
quoting Prater, supra at 581.
Here, there was a substantial break in the stream of events
between the defendant's encounters with officers: one hour
during which the defendant was not in custody and had no contact
with police. More importantly, the defendant's initial
statement was not inculpatory. The statement "did not place him
at the scene of the crime . . . [and] the fact that the police
had no evidence contradicting the initial statement when it was
made negates the possibility that it was inculpatory because it
evidenced consciousness of guilt." Commonwealth v. Sarourt Nom,
426 Mass. 152, 156 (1997). Contrast Commonwealth v. Smith, 412
Mass. 823, 835-836 (1992) (suppression of second statement
20
required where police knew defendant's initial statement to be
false when made during interrogation). Accordingly, the motion
judge erred in excluding the defendant's statements during the
third encounter based on the "cat-out-of-the-bag" theory.
Alternatively, the defendant argues that the motion judge's
conclusion may be supported on two other grounds. See
Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate
court may "affirm a ruling on grounds different from those
relied on by the motion judge if the correct or preferred basis
for affirmance is supported by the record and the findings").
First, he contends that the third encounter constituted an
unlawful seizure without reasonable suspicion. But the record
shows that the officers informed the defendant that detectives
wanted to speak with him, and he agreed to wait for them. A
"'request to speak with the defendant and ask questions' . . .
does not rise to the level of a seizure." Commonwealth v.
Martin, 467 Mass. 291, 303 (2014), quoting Commonwealth v.
Nestor N., 67 Mass. App. Ct. 225, 228-229 (2006). See
Commonwealth v. Lopez, 451 Mass. 608, 610, 614 (2008) (officer's
request, "Can I speak with you?" not seizure); Commonwealth v.
Barros, 435 Mass. 171, 172, 174 (2001) (officer's statement,
"Hey you . . . I want to speak with you," not seizure);
Commonwealth v. Rock, 429 Mass. 609, 611-612 (1999) (officer's
request, "Guys, can I talk to you for a second?" not seizure).
21
There is no evidence that the tone of any officer involved "was
aggressive, that [any] officer physically blocked the defendant
from leaving, or that the officers issued any orders or commands
to the defendant." Lopez, supra at 612. The defendant was not
pat frisked or otherwise searched during the conversation, and
he ended the encounter of his own volition, after refusing the
officers' request to take him to the hospital for potential
identification.
Second, the defendant argues that his statements during the
third encounter were the fruit of the initial unlawful patfrisk.
We are not persuaded. After the patfrisk, the defendant was at
liberty for one hour, during which time officers obtained new
reasons to wish to speak with him: Platt's more detailed
description of the shooter, the mother's statements
contradicting the defendant, and the resulting inference that
the defendant's false exculpatory statement during the first
encounter reflected consciousness of guilt. These intervening
circumstances sufficiently attenuated the third encounter from
the first to dissipate any taint.
Conclusion. For these reasons, we reverse so much of the
amended order as allows suppression of the mother's statements
and the defendant's statements made during his second encounter
with the police. In all other respects, the amended order is
affirmed.
22
So ordered.