Commonwealth v. Charley

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16-P-501 Appeals Court
COMMONWEALTH vs. JARRIS CHARLEY.
No. 16-P-501.
Suffolk. February 14, 2017. - March 24, 2017.
Present: Green, Meade, & Agnes, JJ.
Arrest. Probable Cause. Search and Seizure, Arrest, Probable
cause. Constitutional Law, Arrest, Probable cause, Search
and seizure.
Indictments found and returned in the Superior Court
Department on March 2, 2015.
A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
Anne Rousseve, Committee for Public Counsel Services, for
the defendant.
GREEN, J. After hearing a police radio dispatch report of
a robbery and shooting at a nearby convenience store, Boston
2
police Officer Monica Quinonez observed the defendant walking
toward her from the general direction of the convenience store,
sweating profusely on a cool November evening. The defendant's
build and clothing fit the general description included in the
dispatch. Suspecting that the defendant may have been involved
in the convenience store incident, Quinonez watched the
defendant's movements for a few minutes, then went to the
convenience store to view surveillance video of the robbery and
shooting. Her observations of the video corroborated her
suspicion that the defendant had committed the crime; as a
result, several police units were dispatched to the address
where Quinonez had last seen the defendant. When police
officers approached that address, just under an hour after the
robbery and shooting, the defendant came down from the front
porch to meet them. Informed that there had been "an incident
up the street," the defendant said, "I had nothing to do with
the shooting." The officers took him into custody and
transported him to the police station, where he was interviewed.
After developing additional inculpatory evidence, the police
placed him under arrest. A judge of the Superior Court allowed
the defendant's motion to suppress evidence1 obtained after the
1
The defendant also filed a motion to suppress statements,
which the judge denied as moot because the statements had been
suppressed as "fruit of the poisonous tree" pursuant to the
motion to suppress evidence.
3
police took him into custody, and the Commonwealth appealed.2 We
reverse.
Background. We summarize the subsidiary findings of fact
entered by the motion judge, which we accept absent clear error,
reserving for independent review his ultimate findings and his
conclusions of law. See Commonwealth v. Anderson, 461 Mass.
616, 619 (2012).
On November 4, 2014, at 7:29 P.M., Boston police received a
911 call reporting an armed robbery, in which one person was
shot, at a convenience store in the Dorchester section of
Boston, known as Savin Hill. Based on information furnished in
the call, the police dispatcher broadcast a report of a robbery
and shooting at that location, in which the suspect was a black
male wearing a dark colored hoodie with some kind of print or
pattern on it, and blue jeans. In response to the dispatch, a
number of officers responded to the convenience store within
one-half hour.
Surveillance video at the convenience store showed that the
robber was masked and had the hood of his sweatshirt up, so that
little of his face was visible. Details of the robber's
clothing, and of his "slim build," observed on the surveillance
2
A single justice of the Supreme Judicial Court allowed the
Commonwealth's request for leave to pursue an interlocutory
appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass.
1501 (1996).
4
video were included in police broadcasts from and after
approximately 7:50 P.M.
Boston police Officer Monica Quinonez was working that
evening on a police detail at a construction site approximately
four blocks away from the convenience store. At approximately
8:00 P.M., Quinonez noticed the defendant walking toward her
from the general direction of the convenience store. The
defendant was wearing a blue zip-up hooded sweatshirt and blue
jeans, consistent with the clothing described in the initial
broadcast dispatch.3 The defendant and Quinonez made eye
contact, and Quinonez noticed that the defendant was sweating
profusely, even though it was a cool November evening.
Recognizing the defendant's resemblance to the general
characteristics included in the broadcast dispatch, Quinonez
watched the defendant's movements as he got into the front
passenger seat of a Toyota sedan, and as he shortly thereafter
emerged from the Toyota and went into an apartment building.
Quinonez then walked briskly to the convenience store where
the robbery and shooting had occurred, arriving there at
approximately 8:15 P.M. Quinonez asked to see the store
surveillance video to see whether the robber looked like the man
3
The defendant was not, however, wearing two other items of
clothing described in the later broadcasts, after police viewed
the store surveillance video: a puffy vest and an orange
baseball cap.
5
she had just seen (the defendant). After viewing the video and
recognizing the similarity of the robber to the defendant,
Quinonez told Boston police Sergeant Detective Keith Webb that
she had just seen a man who looked like the robber.4 In
response, three officers, including Officer Jason Ezekiel, a
member of the youth violence strike force, traveled in an
unmarked cruiser to the address that Quinonez had provided to
look for the defendant, and Quinonez walked back there with
additional officers.
The cruiser reached the address at approximately 8:30 P.M.
The defendant was sitting on the front porch of the apartment
building, and the officers watched him from within the cruiser
for a brief time before getting out of the cruiser and walking
toward the building. Although the officers were in plain
clothes, Ezekiel's shirt had a legend saying "Boston Police,"
and he wore his police badge on a lanyard around his neck; their
status as police officers was obvious to the defendant. As the
officers approached, the defendant stood up and walked toward
them, meeting them on the sidewalk. As he approached the
officers, the defendant asked, "What did I do? Why are you
stopping me?" Ezekiel described the defendant's demeanor as
4
Although the robber wore a mask and had the hood of his
sweatshirt pulled up and cinched tightly, Quinonez was able to
see his clothing, build, and skin color. Because the video was
in color, Quinonez was able to see and recognize not only the
color but also the hue of the robber's clothing.
6
"confrontational." Ezekiel responded that there had been "an
incident up the street." Ezekiel asked the defendant if he
lived at that address, and the defendant responded that he was
homeless, but that his aunt lived on the third floor there.5
Ezekiel conducted a patfrisk of the defendant, and then asked
the defendant what was in his backpack; in response the
defendant said only his work clothes were in the backpack, and
began pulling clothes out of the backpack and throwing them on
the ground. The defendant again asked why the police were
stopping him and said, "I had nothing to do with the shooting."
That statement sparked Ezekiel's suspicion, as neither he nor
any of the other officers had said anything about a shooting at
the "incident up the street." When Ezekiel remarked to the
defendant that he had not mentioned anything about a shooting,
the defendant became more agitated, and Ezekiel asked him to sit
on the front porch of the apartment building.
As the defendant sat on the porch, additional officers
arrived. One of them, Boston police Sergeant Hynes, called
Lieutenant Detective Hopkins for instructions. Hopkins
instructed Hynes to bring the defendant to the police station
for questioning. The defendant then was transported to the
police station in the back seat of a marked police cruiser.
5
Later, during questioning at the police station, the
defendant explained that he occasionally stayed overnight in his
aunt's apartment.
7
At the station, the defendant was taken to an interview
room, where (after being advised of his Miranda rights and
signing a waiver form) the defendant was interviewed by Boston
police Detectives Doogan and Thompson. The defendant cooperated
during the interview and, as it neared its end, Doogan told the
defendant he would arrange for a ride to take him back to his
aunt's apartment. As Doogan left the interview room, however,
he saw a frame from the surveillance video frozen on a computer
monitor, depicting two distinctive light colored stains on the
top of the hood of the sweatshirt worn by the person who robbed
the convenience store. Doogan returned to the interview room
and asked the defendant to remove his sweatshirt so that he
could test it for gunshot residue. Doogan then took the
sweatshirt to the computer and compared the stains on its hood
to those shown on the surveillance video. Satisfied that they
matched, Doogan returned to the interview room, resumed the
interview, and asked the defendant why his sweatshirt appeared
in the surveillance video. He then placed the defendant under
arrest.
Police thereafter secured the third-floor apartment while
they obtained a search warrant and, after obtaining the warrant
the next day, searched the apartment and recovered additional
8
evidence.6 Twelve days later, police sought and obtained a
warrant to search the defendant's backpack; in it they found
fifteen twenty dollar bills (most of them sequentially
numbered), four ten dollar bills, five five dollar bills,
thirty-four one dollar bills, and some articles of clothing.
Discussion. We agree with the motion judge that the
patfrisk of the defendant on the sidewalk in front of the
apartment building was supported by reasonable suspicion. The
defendant fit the general description broadcast in the police
dispatch in terms of his clothing, build, and skin color.
Quinonez noticed that he was sweating profusely as he walked
toward her from the general direction of the shooting and
robbery, suggesting that he either had been running, or was
nervous and agitated, or both. Moreover, the defendant's
similarity to the general description included in the broadcast
dispatch was corroborated in more refined detail when Quinonez
observed the color surveillance video and was able to compare
directly her visual observations on the video with the man she
had just seen.7 The fact that he was coming from the direction
6
Police also recovered an orange baseball cap from the roof
of the building next door, and a black mask from a grassy strip
located between the buildings.
7
Although Quinonez did not return to the apartment building
until after Ezekiel pat frisked the defendant, her recognition
of the similarities between the defendant's appearance and the
images of the robber appearing in the surveillance video is
9
of a recent robbery, in which a person had been shot, coupled
with the resemblance of his appearance to that captured on the
surveillance video, suggested the reasonable possibilities that
he was the person who had robbed the convenience store and that
he might be armed and therefore could pose a risk to the
officers. See Commonwealth v. Narcisse, 457 Mass. 1, 10 (2010);
Commonwealth v. Garner, 59 Mass. App. Ct. 350, 366 (2003).
We likewise agree with the motion judge that the actions of
police in requiring the defendant to go to the police station
for questioning constituted an arrest requiring probable cause.
See Commonwealth v. Melo, 472 Mass. 278, 297 (2015). We part
company with the motion judge, however, in our conclusion that
probable cause existed at the time the police transported the
defendant to the police station for questioning. In addition to
the factors recited above in support of reasonable suspicion, we
add that the defendant's unprompted and inculpatory reference to
the "shooting," despite the absence of any reference to a
shooting by Ezekiel or any of the other officers during their
initial conversation with him, and his additional agitation when
Ezekiel commented on the fact that no one had said anything
about a shooting, furnished ample basis to support a reasonable
imputed to the other officers engaged collectively in the
investigation. See, e.g., Commonwealth v. Perez, 80 Mass. App.
Ct. 271, 274 (2011). Moreover, the defendant matched the
description Quinonez had furnished and was at the exact location
she reported having seen him just minutes earlier.
10
belief that the defendant was the person depicted in the video
committing the robbery.
"[P]robable cause exists where, at the moment of arrest,
the facts and circumstances within the knowledge of the police
are enough to warrant a prudent person in believing that the
individual arrested has committed or was committing an offense."
Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied,
446 U.S. 955 (1980). "In dealing with probable cause, . . . as
the very name implies, we deal with probabilities. These are
not technical; they are the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal
technicians, act." Commonwealth v. Cast, 407 Mass. 891, 895-896
(1990), quoting from Draper v. United States, 358 U.S. 307, 313
(1959).
The motion judge appears to have reached his conclusion
that probable cause did not exist principally by discounting the
force of two significant elements of the information supporting
it. First, he likened the resemblance of the defendant to the
general description provided in police dispatches concerning the
robbery to the circumstances in Commonwealth v. Cheek, 413 Mass.
492, 496 (1992). In that case, a down jacket worn by the
defendant was considered too common and generic an article of
clothing to distinguish the defendant from the population at
large on a cold fall night. Ibid. In the present case, by
11
contrast, Quinonez did not merely recognize a similarity between
the defendant's otherwise common clothing and the clothing
described in the broadcast dispatch; she saw the color
surveillance video and was able to compare the images shown in
it directly with her observations of the defendant. Although
the video did not display the robber's face (because he wore a
mask during the robbery), the level of detail available to
Quinonez for purposes of comparing the defendant's appearance to
the person shown on the video was far greater than the
information available to the police in Cheek. See ibid.
Second, the motion judge also surmised that Ezekiel should
have known that the defendant was likely to have gained
knowledge that the "incident" to which Ezekiel referred involved
a shooting from "news media" reports of the shooting which, the
judge concluded, would likely have been broadcast beginning
around 8:00 P.M. There was no direct evidence of any such news
broadcasts, much less of any exposure by the defendant to any.
The judge based his finding to that effect on Ezekiel's
testimony that he saw reporters from various news outlets begin
to arrive at the scene of the robbery soon after he did. From
that observation, the judge inferred that reporters would have
begun broadcasting reports of the incident on radio and
television, and posting reports on their respective Web sites,
beginning at around 8:00 P.M. The judge further attributed to
12
Ezekiel an awareness of that course of news broadcasts, so that
Ezekiel, in the judge's view, should not have considered it
suspicious when the defendant disclaimed involvement in a
"shooting" in response to Ezekiel's reference to an "incident."
To the extent that the judge found, as fact, that Ezekiel knew
or should have known that news broadcasts of the incident began
around 8:00 P.M., and also knew or should have known that the
defendant would have been exposed to those news broadcasts by
the time Ezekiel began speaking to him at 8:30 P.M., the finding
rests on speculation and conjecture rather than evidence, and is
clearly erroneous. In any event, even if it is possible that
the defendant could before 8:30 P.M. have gained knowledge from
news broadcasts that a shooting had occurred at the convenience
store, Ezekiel was not compelled to adopt that view of the
defendant's otherwise unprompted reference to a shooting in his
assessment of its suspicious nature, particularly when the
defendant's state of agitation increased when Ezekiel pointed
out to the defendant that no one had said anything about a
shooting.
Because the motion judge concluded that the evidence
obtained during the interview of the defendant at the police
station, including all statements made by the defendant, was not
justified by probable cause, he suppressed that evidence, as
well as evidence obtained upon execution of the search warrants
13
for the third-floor apartment and the defendant's backpack (as
fruits of the evidence obtained during the interview). However,
because that ruling rested on the erroneous conclusion that the
police were without probable cause to arrest the defendant at
the time they transported him to the police station, the order
allowing the motion to suppress evidence was in error and is
reversed.
So ordered.