Opinion
15-P-619
02-07-2017
COMMONWEALTH v. Nicholas A. JETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a Boston Municipal Court judge allowing the defendant's motion to suppress marijuana found on his person following his arrest on an outstanding warrant. The judge ruled that the defendant, Nicholas A. Jett, was unlawfully detained when two Boston police officers approached him on the street, asked him what he was doing, inquired as to the defendant's name, and then performed a record check to determine whether he had any outstanding warrants. Concluding that the defendant's constitutional rights had been violated, the judge allowed the motion to suppress. For the reasons that follow, we reverse.
As a preliminary matter, we address the timeliness of the Commonwealth's appeal. The judge held an evidentiary hearing on the defendant's motion to suppress on October 10, 2013. At the conclusion of the hearing, she indicated that she would "have a decision ... shortly." There is no dispute that the judge allowed the motion later that same day and that the Commonwealth filed its notice of appeal on October 25, 2013, which was five days beyond the ten day period provided by Mass.R.Crim.P. 15(b)(1), as appearing in 422 mass. 1502 (1996). The Commonwealth contends, however, that its notice of appeal was timely despite the five day delay because it did not learn that the judge had allowed the motion until October 23, 2013, when the parties appeared in court for a status conference. This argument is unavailing if only because the docket reflects that a copy of the order allowing the motion to suppress was given to the parties on October 10, 2013, the same day that it was decided. In the absence of contrary evidence, the docket entry controls. See Commonwealth v. Stewart , 422 Mass. 385, 386 (1996).
Rule 15(b)(1) states in pertinent part that a notice of appeal from an order on a motion to suppress "shall be made by filing within ten days of the issuance of notice of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order." We note that the Commonwealth also was required to file an application for leave to appeal in the Supreme Judicial Court for Suffolk County. The timeliness of the Commonwealth's application is not before us.
In so concluding, we do not cast doubt on the averments made by the assistant district attorney in her affidavit concerning the date she personally learned that the judge had allowed the motion.
In the alternative, the Commonwealth asks us to allow its motion to extend the time to file its notice of appeal, which was filed with its brief (apparently out of an abundance of caution) in this court on August 7, 2015. The Commonwealth requests that we exercise our "discretion to suspend the otherwise applicable procedural rules for ‘good cause’ " because the "late filed notice of appeal ... was pending appeal at the time" Commonwealth v. Jordan , 469 Mass. 134 (2014), was decided. Commonwealth v. Demirtshyan , 87 Mass. App. Ct. 737, 742 (2015), quoting from Jordan , supra at 145. In Jordan , id . at 143 & n.18, the Supreme Judicial Court announced that "the Appeals Court and its single justices" may extend the period for filing a notice of appeal in the same manner provided under Mass.R.A.P. 14(b), as amended, 378 Mass 939 (1979), so long as the notice of appeal was filed "within one year of the issuance of notice of the order" being appealed. In light of the fact that the Commonwealth's notice of appeal was filed only five days late, contrast id . at 137 (notice of appeal filed fifty-one days late), and that the defendant did not file a timely motion to dismiss the appeal, we conclude that the Commonwealth has met its burden of demonstrating good cause, and therefore we allow the motion and deem its appeal timely filed.
The Commonwealth raised the issue of timeliness in its brief. The defendant did not address the question until oral argument at which time he asserted that the appeal was not timely.
We now turn to the question whether the judge erred by allowing the defendant's motion to suppress. The facts, as found by the judge and supplemented where necessary by "evidence from the record that is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony," are as follows. See Commonwealth v. Jones-Pannell , 472 Mass. 429, 431 (2015) (quotation omitted).
The judge's findings were made orally at the conclusion of the hearing on October 10, 2013, and subsequently were supplemented that same day when the judge endorsed the defendant's motion as allowed, and again on November 20, 2013, after the Commonwealth requested written findings.
On March 20, 2013, Boston police officer Sean McCarthy, who was assigned to the Anti-Crime Unit in District B2, was on patrol with his partner in an area of Roxbury known as the Dudley Triangle. The two officers were in the area of Malcolm X Boulevard and Shawmut Avenue when they saw a man, later identified as Nicholas Jett, "standing around" some parked cars. Officer McCarthy had made numerous arrests for various crimes in that area, but he had no specific knowledge of recent criminal activity. In particular, there was no evidence that Officer McCarthy had received a report of anyone breaking into motor vehicles. The officers nevertheless decided to stop the defendant to "determine whether or not he may or may not have been breaking into cars or looking into vehicles." The officers approached the defendant and made what Officer McCarthy described as a "casual stop." In response to the officers' question why the defendant was over by the vehicles, he responded that he was urinating. As the judge noted, there was no evidence "either way" indicating if this was true or not. The officers asked the defendant for his name and then conducted a check for warrants, which disclosed that the defendant had an outstanding warrant. Officer McCarthy testified that the "interaction" with the defendant lasted "probably between five and ten minutes." The defendant was arrested and transported to the police station. He was searched during the booking process and the marijuana he later sought to suppress was discovered.
The record does not disclose the basis of the warrant.
The judge further found that the defendant was cooperative and did not make any furtive gestures, there was no evidence of criminal activity, and the officers acted on a hunch when they approached the defendant. She concluded that he was "detained and seized while the officers ran a record check for warrants" and that the seizure lasted five to ten minutes. Because, the judge reasoned, the seizure was not permissible, she allowed the motion to suppress.
"In reviewing a judge's ruling on a motion to suppress, we accept the ‘judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.’ " Commonwealth v. Dixon , 79 Mass. App. Ct. 701, 707 (2011), quoting from Commonwealth v. Washington , 449 Mass. 476, 480 (2007).
The Commonwealth challenges two of the judge's factual findings: that the defendant was cooperative and that the seizure lasted between five to ten minutes. "A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Commonwealth v. Holley , 52 Mass. App. Ct. 659, 664 n.3 (2001), quoting from Custody of Eleanor , 414 Mass. 795, 799 (1993). Although the judge did not make any specific subsidiary findings regarding the defendant's demeanor, we discern no basis for concluding that this finding is clearly erroneous. First, as Officer McCarthy testified, he conducted a "casual stop" during which the defendant provided his name and told the officers why he was standing by the cars. There was no evidence that the defendant was evasive or acted in any manner other than cooperatively.
We likewise conclude that the judge's determination that the "seizure" lasted between five to ten minutes is not clearly erroneous. As we have noted, Officer McCarthy testified that his "interaction" with the defendant lasted about five to ten minutes. While it may be that the officer was referring to the length of the entire encounter, we cannot say that the judge's finding was clearly erroneous.
Next, the Commonwealth contends that the judge erred in concluding that a seizure triggering the defendant's constitutional rights occurred when the officers approached the defendant and detained him for five to ten minutes while they performed a check for warrants. We agree. "A police officer does not seize an individual on a street merely by approaching him and questioning him. 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. Police have seized a person in the constitutional sense only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Damelio , 83 Mass. App. Ct. 32, 35 (2012) (citations and quotations omitted).
As the Commonwealth asserts in its brief, there was no evidence, and the judge did not find, that the officers used any physical force against the defendant before learning of the outstanding warrant, at which point the defendant was placed under arrest. See Commonwealth v. Cook , 419 Mass. 192, 199 (1994) (defendant not seized until placed under arrest because there was no application of physical force or a show of authority). Nor was there evidence that either officer made a show of authority by issuing a command or using a tone of voice such that a reasonable person would not feel free to leave. See Commonwealth v. Pimentel , 27 Mass. App. Ct. 557, 560 (1989) (seizure may be indicated by language and "tone of voice indicating compliance with the officer's request might be compelled"); Commonwealth v. Grandison , 433 Mass. 135, 138-139 (2001) (encounter became a stop when officer emerged from cruiser and commanded the defendant to stop). The officers did not pursue the defendant, see Commonwealth v. Powell , 459 Mass. 572, 577 (2011), cert . denied , 565 U.S. 1262 (2012), or activate their red-and-blue lights, see Commonwealth v. Smigliano , 427 Mass. 490, 492 (1998), or draw their weapons, see Commonwealth v. Sanchez , 403 Mass. 640, 645 (1988).
Of the many cases that address the question of what constitutes a seizure in the constitutional sense, the facts of the present case are most analogous to those in Commonwealth v. Van Cao , 419 Mass. 383, 385-391 (1995). In that case, the Supreme Judicial Court concluded that no seizure occurred when an officer approached four young men as they walked together in a parking lot, asked several questions (including their names, dates of birth, addresses, and physical descriptions), conducted a warrant check, and requested a second officer come to the scene to take pictures of the men. The encounter in Van Cao lasted approximately five minutes. Even if the encounter at issue here took a full ten minutes, we reach the same conclusion as the court in Van Cao , namely that there was no seizure.
Finally, contrary to the defendant's assertion, the judge did not find that the officers obtained and—retained—the defendant's identification while they performed a warrant check. Thus, his reliance on Commonwealth v. Lyles , 453 Mass. 811, 815-816 (2009), is misplaced. Similarly, the defendant's argument that the stop was unlawful because the officers did not have specific and articulable facts sufficient to conduct a Terry stop when they approached him is unavailing. While the judge found that there was no evidence of an active investigation of criminal activity and no evidence that the defendant had attempted to break into a car, the officers did not need reasonable suspicion to believe that the defendant had committed, was committing, or was about to commit a crime to approach him, ask questions, and conduct a check for warrants. As we have noted, a police officer does not seize an individual on a street merely by approaching him and questioning him. See Damelio , 83 Mass. App. Ct. at 35.
See Terry v. Ohio , 392 U.S.1 (1968).
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The order allowing the motion to suppress is reversed and a new order is to enter denying the motion.
So ordered .
Reversed.