Opinion
16-P-440
03-29-2017
COMMONWEALTH v. Anthony N. ALLEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court judge allowed the defendant's motion to suppress certain statements he made to an Andover police officer, the Commonwealth brought this interlocutory appeal. We vacate the judge's order and remand for additional findings and rulings consistent with this memorandum and order.
The appeal was authorized by a single justice of the Supreme Judicial Court.
Standard of review . In reviewing a decision on a motion to suppress, we accept the motion judge's "subsidiary findings absent clear error but conduct an independent review of the ultimate findings and conclusions of law." Commonwealth v. Jones-Pannell , 472 Mass. 429, 431 (2015) (quotations omitted). "[I]n no event is it proper for an appellate court to engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony." Id . at 438. As discussed below, our review is hampered by the paucity of the factual findings made by the motion judge. To provide necessary background, we proceed by summarizing the testimony presented at the evidentiary hearing.
Background . According to the testimony of Andover police Officer James Moses given at the evidentiary hearing on the motion to suppress, at approximately 11:28 p.m. on September 21, 2014, a "smaller Ford vehicle" sped by him, traveling sixty-seven miles per hour in a thirty-five miles per hour zone. Officer Moses gave chase but was unable to stop the car. However, he did come across an accident scene in which a Ford Focus automobile had crashed into a tree. The driver had fled, and Officer Moses heard rustling in the woods. A police search was unable to locate the driver. Through an investigation conducted that night, Andover and Lawrence police officers learned that the defendant likely was the driver of the car. A check of motor vehicle records revealed that the defendant was an African-American male of a certain height and weight. Officer Moses testified that, using police radio, he notified other officers working the shift of the incident that had happened and "the person that [he was] looking for."
Officer Moses testified that he was unable to see the driver, and the judge's finding that Moses observed a "black male" driving the car is clearly erroneous (as the defendant acknowledges).
The police ascertained who owned the car and learned from the owner that the defendant had borrowed her car.
Officer Brian MacKenzie testified that before he began his shift at 1:00 a.m. on the morning of September 22, 2014, he had been notified "that there might be a suspicious male in the area, to do with [the] car crash" and that he had received a description "of the possible operator of that vehicle, and the name of [the defendant]."
At 3:04 a.m., "about half a mile" from the crash scene, Officer MacKenzie saw an African-American man, later identified as the defendant, walking down the street. It is undisputed that MacKenzie pulled his car over, got out of the car, and began a conversation with him. According to MacKenzie, when he asked "if everything was alright," the defendant stated that "he was just walking to turn himself in." Further inquiry revealed the man's identity as the defendant, whom Officer MacKenzie knew to be the person thought to have driven the car that had crashed. The defendant was arrested and charged with operating with a suspended license, leaving the scene of an accident causing property damage, negligent operation of a motor vehicle, failing to stop for the police, speeding in violation of a special regulation, and failure to register as a sex offender.
After hearing the testimony given at the hearing on the defendant's motion to suppress, the judge made the following findings and rulings as hand-written margin
"3 ½ hours after a black male was seen speeding in a motor vehicle, which subsequently crashed, the defendant was walking down a street in Andover in the vicinity of the crash site @ 3AM. The defendant showed no sign of injury, did not require assistance, appeared to carry no weapon & made no furtive gestures. The Court finds the testimony of [Officer MacKenzie] inconsistent both as to the location of the officer vis-à -vis the defendant & as to the defendant's reaction to the police officer when questioned. The Court finds no specific, articulable facts which were relied upon by the officer in stopping the defendant. The officer was acting on a hunch. Motion Allowed."
Discussion . As is evident from the margin notes quoted above, the judge reasoned that Officer MacKenzie did not possess reasonable suspicion to seize the defendant, nor was he engaged in a valid community caretaking role. However, the judge did not analyze the threshold question of when Officer MacKenzie seized the defendant. See Commonwealth v. DePeiza , 449 Mass. 367, 369 (2007) (in stop cases, courts are to determine first at what point the defendant was seized). It is black letter law that "officers may make inquiry of anyone they wish ... so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries." Commonwealth v. Murdough , 428 Mass. 760, 763 (1999). "To determine when the defendant was seized, our inquiry is a fact-specific one: whether ‘if, in view of all the circumstances surrounding the incident,’ those circumstances were ‘sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.’ " Commonwealth v. Evans , 87 Mass. App. Ct. 687, 690 (2015), quoting from Commonwealth v. Barros , 435 Mass. 171, 173-174 (2001). Because the judge neither addressed this threshold question, nor found facts necessary to resolve it, a remand is necessary.
For example, the judge did not address whether Officer MacKenzie's blue lights were activated when he approached the defendant. Compare Commonwealth v. Rock , 429 Mass. 609, 612 (1999) ("[a]pproaching in an unmarked cruiser, leaving the cruiser, and requesting to speak with a citizen, without more, does not constitute a seizure"), with Commonwealth v. Smigliano , 427 Mass. 490, 491-492 (1998) ("a reasonable person, on the activation of a police car's blue lights, would believe that he or she is not free to leave").
The defendant argues that we are free to affirm the judge's ruling because she made it clear that she did not credit Officer MacKenzie's testimony. However, her margin notes indicate that she credited Officer MacKenzie's testimony in some respects but discredited it in others. We are not in a position to presume what facts the judge would have found with regard to when a stop occurred.
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We additionally note that in evaluating whether Officer MacKenzie had reasonable suspicion to stop the defendant, the judge did not consider two points of law. First, the test for reasonable suspicion is an objective one. See Commonwealth v. Cruz , 459 Mass. 459, 462 n.7 (2011) (officer's subjective reasons for stopping the defendant irrelevant). Second, the motion judge did not address the fact that "[i]n determining whether police officers have reasonable suspicion ... the knowledge of each officer is treated as the common knowledge of all officers and must be examined to determine whether reasonable suspicion exists." Commonwealth v. Roland R ., 448 Mass. 278, 285 (2007) (quotation omitted). In the event that the judge on remand were to determine that the defendant was seized before making statements to Officer MacKenzie, the judge should consider the question of reasonable suspicion in light of information collectively available to police supporting a belief that the defendant was the driver of the car that crashed; what was (perhaps) in question at that point was whether the pedestrian that Officer MacKenzie spotted and engaged in conversation was the defendant.
We vacate the order allowing the defendant's motion to suppress and remand the matter for additional findings and rulings consistent with this memorandum and order.
Vacated and remanded .