Opinion
13-P-1864
12-15-2014
COMMONWEALTH v. DUANE EDWARD COOK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgment of possession of a controlled substance with intent to distribute, arguing that the trial judge erred in denying his pretrial motion to suppress and that he was improperly sentenced. We affirm.
1. Background. Before trial, the judge held an evidentiary hearing on the defendant's motion to suppress. Sergeant Devon Williams (Williams) and Officer Clayton Roberson (Roberson) testified on behalf of the Commonwealth. The defendant called Derek Jackson (Jackson). Williams testified that, on May 18, 2012, he and Roberson were assigned to the street crimes unit in Springfield. At approximately 6 P.M., the police officers were in their unmarked cruiser when they saw Jackson driving a motor vehicle in the opposite direction. Williams previously had investigated Jackson for narcotics distribution in Springfield and knew that Jackson had been in Federal prison. Because he suspected that Jackson was operating without a valid license, Williams decided to check the status of Jackson's license. As he turned his vehicle around, Williams saw the car that Jackson was operating stop abruptly in the travel lane. Before the officers could exit their cruiser, Jackson's passenger exited the vehicle, crouched down, and looked directly at the officers. Williams saw that the passenger, later identified as the defendant, was holding some clear plastic bags. The defendant then sprinted away from the police officers, and Williams saw a white substance fall to the ground. Williams pursued the defendant without stopping to recover the discarded object. As he passed the object in his pursuit, however, he recognized it as cocaine packaged for street level distribution.
A high-impact patrol unit which concentrates on areas that have shown an increase in gang and drug activity.
Williams testified that he followed as the defendant jumped fences and ran through several backyards in an attempt to evade. A search of the defendant's person following his apprehension revealed "blow-outs," which are the corners of plastic baggies and are often used to package and sell drugs. The police recovered other objects, which appeared to be drugs, from the path of the defendant's flight.
Roberson testified that he observed a plastic bag in the defendant's hand which the defendant dropped before he fled. Jackson testified that he pulled over to drop off the defendant, and that the defendant simply walked away and did not drop anything. In his findings, the judge accepted the testimony of the officers and, inferentially, rejected that of Jackson. The judge made findings of fact from the bench, denied the motion, and proceeded with the trial.
2. Discussion. Denial of motion to suppress. "When reviewing the denial of a motion to suppress, 'we accept the motion judge's subsidiary findings of fact absent clear error.'" Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). We defer to the trial judge's determinations regarding the weight and credibility of the testimony, Commonwealth v. Franklin, 456 Mass. 818, 820 (2010), and review de novo the judge's application of constitutional principles. Commonwealth v. Martin, 467 Mass. 291, 301 (2014).
a. Initial stop and seizure. The defendant argues that his motion to suppress should have been allowed because the police officer stopped Jackson and seized the defendant without reasonable suspicion, in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Where, as here, the vehicle was already stopped, we need not decide whether the officers had cause to justify a stop. Commonwealth v. Silva, 366 Mass. 402, 406 n.1 (1974). Thus, we turn to the issue of seizure.
The police would have been justified in stopping the vehicle based upon the officers' suspicion that Jackson was operating without a license. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980); Commonwealth v. Santana, 420 Mass. 205, 208 (1995).
Under art. 14 of the Massachusetts Declaration of Rights, "a person is 'seized' by a police officer 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Commonwealth v. Stoute, 422 Mass. 782, 786 (1996), quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985). "Whether a police 'pursuit' will be considered a seizure depends on the particular nature of the law enforcement action." Commonwealth v. Sykes, 449 Mass. 308, 312 (2007).
Here, Jackson abruptly stopped in the middle of the road after the officers turned around but before they activated the lights or siren on their cruiser. The defendant exited the vehicle before the officers exited theirs, crouched down while holding clear plastic bags, made eye contact with the officers, and then fled and discarded the plastic object. While there was nothing criminal about Jackson stopping in the middle of the road or the defendant exiting the vehicle and running away, "[s]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Commonwealth v. Watson, 430 Mass. 725, 729 (2000).
The pursuit began once the defendant fled and Williams followed, ordering the defendant to stop. See id. at 731, quoting from Commonwealth v. Williams, 422 Mass. 111, 117 (1996) ("[P]ursuit begins only when . . . police attempt to stop an individual 'to effectuate a threshold inquiry.'"). The defendant was "seized" at that point, and Williams must have had "an objectively reasonable suspicion of criminal activity, based on specific and articulable facts, to justify th[e] pursuit." Stoute, 422 Mass. at 789. In determining whether Williams acted reasonably, "we view the circumstances as a whole, and consider the 'specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience.'" Id. at 790, quoting from Terry v. Ohio, 392 U.S. 1, 27 (1968). Based on all that Williams had observed at that point, we conclude that he had specific articulable facts to support an inference that the crime of possession of a controlled substance was being committed, thereby justifying a threshold inquiry.
b. Probable cause to arrest. Having determined that the defendant was seized when Williams pursued him and that the seizure was supported by reasonable suspicion, the question becomes whether the police had probable cause to arrest. We conclude that they did. Once Williams recognized that the object that the defendant discarded was cocaine packaged for street sale, his reasonable suspicion turned into probable cause to arrest. Accordingly, there was no error in denying the motion to suppress evidence seized from the defendant's person.
2. Sentencing. The defendant claims that the judge improperly imposed two concurrent sentences of eight to ten years. The defendant pleaded guilty to so much of the indictment as charged him with being a subsequent offender, in exchange for the Commonwealth's agreement to nolle prosequi the habitual offender portion of the indictment. The parties jointly recommended an eight to ten year sentence, which the judge agreed to impose. While the judge appears from the record to have imposed two sentences, both the mittimus and the docket sheet reflect a single sentence of not more than ten and not less than eight years. There is no need for resentencing.
Judgment affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 15, 2014.