DocketNumber: 18-P-1517
Citation Numbers: 125 N.E.3d 801, 95 Mass. App. Ct. 1114
Filed Date: 5/21/2019
Status: Precedential
Modified Date: 7/24/2022
Before us are the Commonwealth's interlocutory appeal from the partial allowance of the juvenile's motion to suppress and the juvenile's cross appeal from the partial denial of that motion. We affirm.
We recite the judge's subsidiary findings of fact, supplementing them with uncontroverted testimony from Boston Police Officer Lopes, whose testimony the judge explicitly credited. See Commonwealth v. Isaiah I.,
While working in plainclothes as a member of the "Youth Violence Strike Force" on April 9, 2017, Officer Lopes received a text message from his supervisor stating that an individual dressed in a red hooded sweatshirt (hoodie) with a white drawstring was suspected of having a firearm. According to the message, the individual was with another person who was dressed all in black, and the two were in the area of Roxbury Crossing heading towards Heath Street. The supervisor's text further identified the individual by including a still image of a young black man wearing a red hoodie with a white drawstring. The image showed the individual's face and included the slogan "Night at the Roxbury." The image was taken from a "Snapchat"
After receiving this text message and image, Officer Lopes and his partner, who were wearing tactical vests bearing the "Boston Police" logo, drove in an unmarked car towards Roxbury Crossing, and the Bromley-Heath housing development. As they turned onto Parker Street, a person wearing all black walked right in front of their car. To his left, Officer Lopes saw the juvenile, who was wearing a red hoodie with a white drawstring. The juvenile appeared to be sixteen or seventeen years old. Officer Lopes and his partner got out of the car. The juvenile picked up his pace, walking away from the officers, and Officer Lopes (who was about sixty to seventy feet away from the juvenile) called out, "Hey, kid." The juvenile "looked back and took off running" while holding the right side of his waistband. Officer Lopes pursued on foot, losing sight of the juvenile briefly (after which the juvenile ran "normal[ly]"), but eventually catching up to the juvenile when his pants caught on a fence and one of his shoes fell off. The juvenile was nervous and sweating. Officer Lopes "grabbed him and [ ] stood right next to him" as his partner continued to run towards them. The juvenile spontaneously said, "I don't have a gun." Officer Lopes asked, "Who mentioned anything about the gun?" and the juvenile replied, "That's the reason why you chasing me." At that point Officer Lopes's partner arrived, and the juvenile was handcuffed and formally arrested.
The juvenile contends that he was seized in the constitutional sense when Officer Lopes yelled out "Hey, kid." The Commonwealth asserts that the motion judge was correct in concluding that the juvenile was not seized until Officer Lopes grabbed him at the fence. To determine "whether the actions of the officers in stopping the [juvenile] were constitutionally permissible, we must first identify the moment when the seizure occurred." Commonwealth v. DePeiza,
For the reasons explained in Commonwealth v. Sykes,
Relying primarily on Commonwealth v. Franklin,
Not only did the juvenile's clothing match that of the person in the image, he was located sufficiently near in time and place to the location depicted in the Snapchat video, a second person matching the (albeit) slim description police had was also present, Officer Lopes observed that the juvenile was too young to lawfully possess a firearm, and the juvenile's reaction to the officer's rather benign approach could be considered to reflect his consciousness of guilt. See Commonwealth v. Wilson,
Concluding as we do that there was reasonable suspicion when the police gave chase, it necessarily follows that there was reasonable suspicion when the officer grabbed the juvenile at the fence; by then, the juvenile had been running in a way that, in the officer's experience, strongly suggested he was holding onto a firearm in his waistband.
We now turn to the Commonwealth's arguments that the juvenile's statement "That's the reason why you chasing me" either (a) were not the product of custodial interrogation, or (b) fell within the public safety exception. As to the first of these, the Commonwealth contends both that the juvenile was not in custody when the statement was made, and that there was no interrogation or its functional equivalent. We address each of the Commonwealth's contentions in turn.
To determine whether there was custodial interrogation, we look at "how a reasonable person in the juvenile's position would have understood his situation" (citation omitted). Commonwealth v. Ira I.,
We disagree with the Commonwealth's contention that Officer Lopes's question "Who said anything about the gun?"
Finally, it is true, as the Commonwealth argues, that the public safety exception allows police to ask "suspects questions dedicated to locating [ ] missing weapons without being required to give Miranda warnings," Commonwealth v. Guthrie G.,
For these reasons, the order denying in part and allowing in part the juvenile's motion to suppress is affirmed.
So ordered.
Affirmed.
See F.K. v. S.C.,
Officer Lopes testified that subsequently the police found a black .22 caliber firearm on the ground along the route of the chase.
In its brief the Commonwealth substitutes the indefinite article "a" in this question for the definite article "the" that Officer Lopes testified he used.