Commonwealth v. Allen Bolden.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-110
COMMONWEALTH
vs.
ALLEN BOLDEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Allen Bolden, pleaded guilty to breaking and
entering a building in the daytime with the intent to commit a
felony, G. L. c. 266, § 18, and being a common and notorious
thief, G. L. c. 266, § 40, reserving the right to challenge the
denial of his motion to suppress evidence. Concluding that
police had reasonable suspicion to stop the defendant and that a
search of the defendant's backpack was justified as a search
incident to arrest, we affirm.
1. Standard of review. "In reviewing the denial of a
motion to suppress, we 'accept[] the judge's subsidiary findings
of fact absent clear error, give[] substantial deference to the
judge's ultimate findings and conclusions of law, but
independently review[] the correctness of the judge's
application of constitutional principles to the facts found.'"
Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 158-159 (2019),
quoting Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018).
2. The stop. "To justify an investigatory stop under the
Fourth Amendment to the United States Constitution or art. 14 of
the Massachusetts Declaration of Rights, 'the police must have
reasonable suspicion that the person has committed, is
committing, or is about to commit a crime.'" Commonwealth v.
Vick, 90 Mass. App. Ct. 622, 625 (2016), quoting Commonwealth v.
Costa, 448 Mass. 510, 514 (2007). "Reasonable suspicion 'must
be grounded in specific, articulable facts and reasonable
inferences [drawn] therefrom rather than on a hunch.'"
Commonwealth v. Matta, 483 Mass. 357, 365 (2019), quoting
Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). It "is
measured by an objective standard, [considering] the totality of
the facts." Commonwealth v. Karen K., 491 Mass. 165, 174
(2023), quoting Commonwealth v. Meneus, 476 Mass. 231, 235
(2017).
Here, when the victim called 911 to report "someone
breaking into [her] apartment," she initially described the
defendant as a white male, in his twenties, wearing a black
coat, a knit hat, and a gray backpack. The victim's description
of the defendant improved as she watched him over her
surveillance camera. After telling the dispatcher "maybe he's
actually Hispanic or African-American, it's hard to say . . . he
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has something covering his mouth . . . a scarf," the victim
described the defendant as an African-American male wearing
jeans and a dark coat, and covering his mouth.
Within one minute after the defendant left the victim's
apartment, police arrived on scene. An officer saw the
defendant approximately 433 feet away from the victim's
apartment and stopped him.1 See Commonwealth v. Acevedo, 73
Mass. App. Ct. 453, 458 (2009) (reasonable suspicion supported
by "the proximity of the suspects to the scene of the crime, the
minor lapse of time [three minutes] between the report of the
crime and [the detective's] observation of the suspects").
Contrast Commonwealth v. Warren, 475 Mass. 530, 536 (2016)
("defendant was stopped one mile from the scene of the crime
approximately twenty-five minutes after the victim's telephone
call to the police").
At the moment the officer stopped the defendant, the active
description was that the suspect was a light skinned, Black male
with a scarf over his face, wearing a dark coat, a gray
backpack, and a knit hat.2 The defendant was a light skinned,
1 The officer who stopped the defendant arrived on the scene
within two minutes after the defendant left the victim's
apartment.
2 After the defendant was stopped, the dispatcher informed police
that the defendant had a black pair of gloves. The absence of
the gloves from the description at the time of the stop does not
eliminate reasonable suspicion. See Commonwealth v. Privette,
491 Mass. 501, 519 (2023) (stop supported by reasonable
3
Black male with a cloth over his neck, wearing a dark coat, a
gray backpack, and a knit hat. This was a better and more
specific match than "two black males wearing the ubiquitous and
nondescriptive 'dark clothing,' and one black male wearing a
'red hoodie,'" Warren, 475 Mass. at 535, or "the description of
the suspect as a 'black male with a black ¾ length goose
[jacket]' [which] could have fit a large number of men,"
Commonwealth v. Cheek, 413 Mass. 492, 496 (1992). Although the
defendant was stopped in a busy area in Boston, an officer
testified that there was no one else in the immediate vicinity
matching that description. See Commonwealth v. Bostock, 450
Mass. 616, 619 (2008) ("the police, having canvassed the area,
had found no one else matching those descriptions"). In this
case, "[t]he similarity of the physical description of the
suspect to the defendant, the temporal and physical proximity of
the defendant to the scene of the [crime], and the context of
the stop gave rise to reasonable suspicion." Commonwealth v.
Privette, 491 Mass. 501, 519 (2023).
3. Search incident to lawful arrest. "Once a custodial
arrest occurs, as did here, no additional justification is
required for a search of the person for weapons that otherwise
might be used to resist arrest or to escape, or to discover
suspicion "with or without the information that the suspect had
facial hair").
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evidence of the crime for which the arrest was made."
Commonwealth v. Prophete, 443 Mass. 548, 552 (2005).3 This type
of search must be limited "to the body of the person arrested
and the area and items within his or her immediate possession
and control at the time." Commonwealth v. Phifer, 463 Mass.
790, 794 (2012), quoting Commonwealth v. Santiago, 410 Mass.
737, 743 (1991). Police "may secure the arrestee and then
safely search the area within his immediate control at the
moment of arrest." Commonwealth v. Figueroa, 468 Mass. 204, 216
(2014). A search incident to arrest requires that the arrest be
supported by "probable cause to believe that the individual
arrested is committing or has committed a criminal offense."
Commonwealth v. Jackson, 464 Mass. 758, 761 (2013).
Here, the search of the defendant's backpack was justified
as a search incident to a lawful arrest. See Commonwealth v.
Villagran, 477 Mass. 711, 719 (2017), quoting G. L. c. 276, § 1
("Under our law, [the officer] could have searched the backpack
for the 'fruits, instrumentalities, contraband and other
evidence of the crime . . . and remov[ed] any weapons that the
arrestee might use to resist arrest or effect his escape'").
3 The Commonwealth did not raise this ground justifying the
search before the motion judge, but we "may affirm a suppression
decision on any ground supported by the record, even if neither
the parties nor the judge relied on it below." Commonwealth v.
Rosado, 84 Mass. App. Ct. 208, 217 (2013).
5
When the victim reported the breaking and entering, she saw that
the defendant was "stealing [her] . . . Amazon Kindle Fire"4 and
that he "took anything he could stuff into his backpack,
including all of [her] quarters" and possibly her laptop.
Within twenty minutes after the defendant was stopped, the
victim identified the defendant based on his clothing and the
backpack that he was wearing. The detective testified that, "at
that point, [the defendant] was placed under arrest." Although
the police looked in the backpack before the victim identified
the defendant, they did not show the contents of the backpack to
the victim until after the defendant was arrested. Once police
had probable cause to arrest the defendant for the breaking and
entering, based on the victim's in-person identification, they
were entitled to search his backpack for the stolen goods. See
Commonwealth v. Kipp, 57 Mass. App. Ct. 629, 632 (2003). Cf.
Jackson, 464 Mass. at 766 (because officers lacked probable
cause to arrest, "the subsequent search of the defendant's
person and backpack was not justified as a search incident to a
4 The Amazon Kindle Fire is a "tablet computer and e-reader."
Huizenga v. Gwynn, 225 F. Supp. 3d 647, 651 (E.D. Mich. 2016).
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lawful arrest"). Accordingly, the search of the backpack was a
valid search incident to arrest.5
Order denying motion to
suppress affirmed.
By the Court (Massing,
Ditkoff & Singh., JJ.6),
Clerk
Entered: June 5, 2023.
5 The defendant suggests in passing that the patfrisk of his
person was unlawful, but nothing in the record suggests that any
evidence to be suppressed was recovered from his person.
6 The panelists are listed in order of seniority.
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