Opinion
14-P-1269
09-25-2015
COMMONWEALTH v. RYAN CABANA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury trial, the defendant was convicted of armed robbery while masked, G. L. c. 265, § 17, and assault by means of a dangerous weapon, G. L. c. 265, § 15B. On appeal, he argues that, because he was seized without reasonable suspicion, his motions to suppress evidence and an out-of-court identification were erroneously denied. We affirm.
On appeal the defendant argues only that his motions to suppress should have been allowed because he was seized without reasonable suspicion; the other arguments in support of his motions have not been pursued and are therefore waived.
"In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error "but conduct an independent review of [the] ultimate findings and conclusions of law."'" Commonwealth v. Ramos, 470 Mass. 740, 742 (2015), quoting from Commonwealth v. Colon, 449 Mass. 207, 214 (2007). After an evidentiary hearing that included the testimony of two police officers and the admission of four exhibits (which included transcripts of the 911 call and the Turret tapes), the motion judge found the following facts based on the evidence he credited. None of the judge's findings is challenged as clearly erroneous.
At approximately 6:30 P.M. on September 13, 2011, Colleen Pimentel telephoned 911 to report that the hairdressing salon at which she worked had just been robbed at knife point by a white male in his twenties. The robber had a black bandana wrapped around his face and was wearing sunglasses, blue jeans, and a blue sweatshirt. Pimentel reported that the robber ran into the wooded area behind the salon.
The judge's written findings do not include the fact that Pimentel had reported to the dispatcher, in her 911 call, that the robber ran into the woods behind the salon, but this information is contained in the transcript of the 911 recording that was admitted in evidence at the suppression hearing. Therefore, we may consider it in our analysis. See Commonwealth v. Lafaso, 49 Mass. App. Ct. 179, 180 (2000), quoting from Bruno v. Bruno, 384 Mass. 31, 35 (1981).
Officer Gaetano was the first officer to respond to the call. But instead of going directly to the salon, Officer Gaetano went to Genest Street, which borders the wooded area. His reasoning was that in recent months a perpetrator had robbed a liquor store in the same vicinity and had used the wooded area as an escape route, emerging on Genest Street.
Officer Gaetano accordingly positioned his cruiser on Genest Street at a point where he could observe the area to the rear of the salon building that bordered the wooded area. While in his cruiser, he observed a white male in his twenties emerge from the woods, wearing blue jeans and a T-shirt. There were no other people on the street at that time. Officer Gaetano got out of his cruiser, identified himself, and commanded that the defendant stop.
Because they do not bear on our analysis, we do not set out in detail what happened thereafter. Broadly summarized, the evidence was that the defendant did not stop as commanded but instead ran away, leading Officer Gaetano on a prolonged foot chase. Eventually the defendant tripped and was apprehended. A significant amount of cash was found under a bush nearby. Shortly thereafter, Pimentel identified the defendant at a show-up identification procedure, stating that she recognized his hair.
The parties agree that the defendant was seized in the constitutional sense at this point. The question, therefore, is whether Officer Gaetano at that moment had a reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime. Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Taken together, (a) the officer's prior experience and knowledge of the wooded area having been used as an escape route after a similar robbery at a nearby business, (b) the fact that the defendant matched the general description of the robber (white male in his twenties), (c) the missing items that had been described (sunglasses, hooded sweatshirt, bandana) were used as a disguise and easily disposed of, (d) those items, as well as the knife, given their highly incriminating nature were likely to have been disposed of quickly, (d) the defendant was observed emerging from the wooded area within minutes of the time of the offense, and (e) the defendant was the only person on Genest Street at that time, provided reasonable suspicion to believe that the defendant had committed the robbery at the hairdressing salon a few minutes before. See Commonwealth v. Acevedo, 73 Mass. App. Ct. 453, 458, S.C., 455 Mass. 1013 (2009) (reasonable suspicion grounded on proximity of suspects to the scene of the crime, minor lapse of time, suspects wearing white Converse sneakers, and suspects only people matching the general description in the area at the time).
For the reasons set out above, the judge did not err in denying the defendant's motions to suppress.
Judgments affirmed.
By the Court (Green, Wolohojian & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 25, 2015.