Opinion
16-P-798
03-21-2017
COMMONWEALTH v. Robert M. BALDASSARI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following his conviction of one count of possession of a class A substance, the defendant appeals, arguing that the judge erred in denying his motion to suppress. Concluding that the police officers did not need reasonable suspicion to approach the defendant, and that they had probable cause to arrest him after he openly discarded a baggie of suspected heroin, we affirm.
Absent clear error, we accept and adopt the findings of the motion judge, but we "independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. DePeiza , 449 Mass. 367, 369 (2007), quoting from Commonwealth v. Catanzaro , 441 Mass. 46, 50 (2004). Although the judge in this case made no written findings of fact, in orally denying the motion to suppress he implicitly credited the testimony of the three police officers who appeared at the hearing on the defendant's motion to suppress. On appeal, the defendant disputes only the judge's application of constitutional principles to the facts, which he does not contend differ materially from the testimony presented. He takes issue with the judge's conclusion of law, which the judge expressed by stating at the hearing, "I do not, cannot" conclude that the defendant was seized when the police officers displayed their badges. We therefore summarize the following factual background from the officers' testimony. Compare Commonwealth v. Isaiah I ., 448 Mass. 334, 337 (2007) (appellate court may supplement findings of fact with uncontroverted and implicitly-credited testimony).
On August 24, 2012, as part of an investigation of the defendant on suspicion of selling drugs, Cambridge police Detectives Barbosa and Colasso, wearing plain clothes and Cambridge police badges, announced themselves as they approached the defendant on foot on a public sidewalk. The defendant "threw his hands up in the air," and the police observed an item fall out of his hand to the ground. Detective Barbosa grabbed the defendant while Detective Colasso recovered the object, a plastic baggie containing a brown powdery substance they believed, based on their training and experience, to be heroin. Detective Barbosa then handcuffed the defendant and read him Miranda warnings. He was later convicted of possession of a class A substance.
Discussion . For the purposes of art. 14 of the Declaration of Rights of the Massachusetts Constitution, "a person is seized ... when a police officer initiates a pursuit with the obvious intent of requiring the person to submit to questioning." Commonwealth v. Stoute , 422 Mass. 782, 783 (1996). Such a seizure must be supported by reasonable suspicion. See Commonwealth v. Cheek , 413 Mass. 492, 494 (1992). In determining whether an individual was seized in a constitutional sense, we consider all of the circumstances to decide whether a reasonable person would have felt free to leave. See Commonwealth v. Lyles , 453 Mass. 811, 815 (2009) ; Commonwealth v. Powell , 459 Mass. 572, 577 (2011), cert. denied, 565 U.S. 1262 (2012).
The defendant argues that the moment of seizure occurred when the officers approached him on foot and identified themselves as law enforcement personnel, causing him to throw up his hands and drop the baggie of heroin to the ground. He advances numerous arguments as to why the police lacked reasonable suspicion at the moment they approached. We need not decide whether there was reasonable suspicion for a seizure, however, because the defendant had not yet been seized when he threw up his hands and dropped the bag of heroin.
A reasonable person would have felt free to leave under the circumstances, as the officers' approach was a request for a consensual conversation and did not require reasonable suspicion. "The approach of the defendant, on a public street, by officers who wore no uniforms and therefore identified themselves by displaying their badges, and who neither displayed any weapons nor engaged in hostile or aggressive actions towards the defendant, did not impinge upon any constitutionally protected interest of the defendant." Commonwealth v. Damelio , 83 Mass. App. Ct. 32, 35 (2012). Commonwealth v. Grandison , 433 Mass. 135, 138 (2001). The officers did not order the defendant to stop, command him to do anything, use physical force, or engage in any other conduct that would have elevated the encounter to a constitutional seizure requiring objective justification.
"[N]ot all personal intercourse between police [officers] and citizens involves ‘seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred." Commonwealth v. Leonard , 422 Mass. 504, 508 (1996), quoting from Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968). In denying the defendant's motion to suppress, the motion judge stated on the record that he did not and could not find that the seizure occurred before Detective Barbosa put his hands on the defendant, i.e., there was no seizure when the officers merely showed their badges. This conclusion was amply supported by the testimony presented.
The defendant rests his argument solely on the premise, which the motion judge properly rejected, that he was seized at the moment the detectives first approached him on the sidewalk. The defendant does not contest that once he dropped the baggie to the ground—an act that he concedes in his appellate brief was "verifiable evidence of unlawful behavior"—the detectives had sufficient reasonable suspicion to seize him and then, after inspecting the baggie, probable cause to arrest him.
Judgment affirmed .