Opinion
23-P-130
07-24-2024
COMMONWEALTH v. BRAXTON B., a juvenile.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile pleaded delinquent to carrying a firearm without a license, G. L. c. 269, § 10 (a), and to discharging a firearm within 500 feet of a building, G. L. c. 269, § 12E, and was committed to the custody of the Department of Youth Services until the age of eighteen. Prior to his plea, he moved to suppress the firearm, arguing that the officer's stop and subsequent patfrisk were not supported by reasonable suspicion. The motion was denied following a hearing, and this appeal followed. We affirm.
As part of the juvenile's plea agreement, charges of carrying a loaded firearm without a license, G. L. c. 269, § 10 (n), and possession of ammunition without a firearms identification card, G. L. c. 269, § 10 (h) (1), were dismissed.
The juvenile's plea was conditioned on his right to appeal the denial of his motion to suppress the firearm.
Discussion.
"When reviewing a ruling on a motion to suppress, we accept the motion judge's findings of fact absent clear error, but we conduct an independent review of his ultimate findings and conclusions of law" (quotations and citation omitted). Commonwealth v. Ford, 100 Mass.App.Ct. 712, 714 (2022). "Our duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Id., quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
"To justify a police stop . . ., police officers must have had reasonable suspicion, based on specific and articulable facts, that the defendant had committed, was committing, or was about to commit a crime" (quotation omitted). Commonwealth v. Henley, 488 Mass. 95, 102 (2021). "Reasonable suspicion requires less than probable cause to arrest but must be based on more than just a hunch." Id. "The standard of reasonable suspicion does not require that an officer exclude all possible explanations of the facts and circumstances." Id.
"A patfrisk is permissible only where an officer has reasonable suspicion that the stopped individual may be armed and dangerous." Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744 (2021), cert. denied, 143 S.Ct. 135 (2022). "In assessing whether an officer has reasonable suspicion to justify a patfrisk, we ask whether a reasonably prudent person in the officer's position would be warranted in the belief that the safety of the police or that of other persons was in danger" (quotations and alterations omitted). Id. "An innocent explanation for an individual's actions does not remove [those actions] from consideration in the reasonable suspicion analysis." Id., quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007).
On July 21, 2022, Boston police Officer Jose Sanchez responded to a ShotSpotter activation in the Mission Hill neighborhood that occurred at 10:05 P.M. After dropping off two other officers, Sanchez parked his vehicle and began searching on foot for the suspects. During the search, he passed through a parking lot and observed a marked police cruiser that was part of the coordinated effort to locate the suspects. He further observed a male individual -- the juvenile -- who partially matched the description of the suspect. Sanchez observed the juvenile adjust his waistband and approach the marked police cruiser. Judging the situation to be unsafe, he approached the juvenile and immediately conducted a patfrisk, which resulted in the discovery of a firearm.
Sanchez testified that the ShotSpotter system detects and alerts police to the location of gunfire and other loud noises.
As the juvenile challenges the legality of both the stop and the patfrisk, we consider each in turn, beginning with the stop. It is clear to us that the stop was supported by reasonable suspicion that the juvenile might have been illegally carrying a firearm. Several factors support this conclusion. First, Sanchez was responding to a nearby, recent ShotSpotter activation and was accordingly on alert for the illegal use or possession of firearms in the immediate area. See Henley, 488 Mass. at 104 ("we consistently have held that geographic and temporal proximity are relevant factors in the reasonable suspicion analysis"). Second, Sanchez was a member of the Youth Violence Strike Force and was familiar with the area. He testified that he had responded to ShotSpotter activations in that area before and that he knew that there was a park in the vicinity of the stop that was often used as a getaway route for suspects fleeing police pursuit. Third, the juvenile roughly matched the description of the suspect in the ShotSpotter alert, but for a jacket that could easily have been removed. See Henley, 488 Mass. at 102-103 (reasonable suspicion supported where defendant matched description of suspect except for jacket). Fourth, Sanchez observed the juvenile adjust his clothing in a way that signaled, according to his training, that the juvenile might be concealing a weapon and preparing to flee. See DePeiza, 449 Mass. at 371 (officer's training supported conclusion that suspect's body language indicated he was concealing firearm). See also Sweeting-Bailey, 488 Mass. at 757 (Lowy, J, concurring) (officer entitled to rely on training to draw inference as to body language). Fifth, there was relatively little foot traffic in the area of the ShotSpotter activation at the time Sanchez observed the juvenile. See Henley, 488 Mass. at 102. These factors, taken together, supported the officer's reasonable suspicion that the juvenile may have been illegally carrying a firearm. See Ford, 100 Mass.App.Ct. at 716 (courts consider totality of circumstances when assessing reasonable suspicion). We are unpersuaded by the juvenile's argument to the contrary that the way in which he adjusted his clothing was not enough, on its own, to support a stop. Even assuming, without deciding, that an individual adjusting his or her clothing might not by itself support a stop, the juvenile fails to address, with respect to the stop, the other factors that we have discussed. As a result, we discern no error with the stop.
When analyzing the legality of an investigative stop, we must first "identify the moment when the seizure occurred." DePeiza, 449 Mass. at 369. In this case, it is clear, and the Commonwealth does not dispute, that the seizure occurred when Sanchez placed his hands on the juvenile and immediately began to conduct the patfrisk. See id. No reasonable person would feel free to leave by that point. See Commonwealth v. Karen K., 491 Mass. 165, 174 n.5 (2023) (defendant seized when officer grabbed her arms).
The park was a preferred getaway route for fleeing offenders because police vehicles could not pass through it, meaning that police were required to pursue suspects on foot.
Sanchez had been informed via his police radio that there were two suspects wearing "all black hoodies, black pants and masks." The juvenile was wearing black trackpants, a black T-shirt, and a ski mask.
We note that the juvenile was wearing a ski mask over his face in July, supporting Sanchez's suspicion that the juvenile was attempting to conceal his identity, rather than protect against cold weather. See DePeiza, 449 Mass. at 374 (effort at concealment supports reasonable suspicion required to conduct stop).
Sanchez testified that he also observed some individuals who might have been college students shortly before encountering the juvenile but did not stop them because they did not match the description of the suspects.
We turn next to consider whether Sanchez's patfrisk of the juvenile was separately supported by reasonable suspicion that he or others in the area were in danger. As is sometimes the case, "[t]he same factors that supported reasonable suspicion for the stop supported the officer's suspicion that [the defendant] was armed and dangerous." Henley, 488 Mass. at 105. As we have discussed, Sanchez was reasonably suspicious that the juvenile might have been illegally carrying a weapon. Because the ShotSpotter activation suggested that a weapon had recently been fired in the area, Sanchez was justified in his reasonable suspicion that the juvenile may have been the one who had discharged the weapon, and, accordingly, posed a threat to the safety of himself and the other officers in the immediate vicinity. See id. at 104 ("The gravity of the crime and the present danger of the circumstances may be considered in the reasonable suspicion calculus" [quotation omitted]).
We are unconvinced by the juvenile's arguments that Sanchez did not have the reasonable suspicion required to conduct a patfrisk. The juvenile argues that many of the factors supporting the legality of the patfrisk, including his similarity to the description of the suspects, his behavior leading up to the patfrisk, and his physical and temporal proximity to the ShotSpotter activation, do not, each considered standing alone, support a patfrisk. These arguments misapprehend the principle that our analysis incorporates these factors in their totality, rather than in isolation. See Ford, 100 Mass.App.Ct. at 716.
The juvenile further quarrels with the judge's factual findings, arguing that some of those findings based on Sanchez's testimony were contradicted by his body camera footage, which was in evidence. We have reviewed the body camera footage in question and do not think that it clearly countermands any of the judge's findings. "When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous" (alteration omitted). Commonwealth v. Karen K., 491 Mass. 165, 170 (2023), quoting Commonwealth v. Carr, 458 Mass. 295, 303 (2010). In sum, there was no error in the judge's decision to deny the juvenile's motion to suppress the firearm.
We are further unconvinced by the juvenile's argument that the judge impermissibly considered testimony regarding the level of crime in the geographic area where the patfrisk took place. But even were we to exclude that factor from consideration, there nevertheless remained ample support for reasonable suspicion as to the danger posed by the juvenile. See DePeiza, 449 Mass. at 374.
Order denying motion to suppress affirmed.
The panelists are listed in order of seniority.