Opinion
21-P-392
12-12-2022
COMMONWEALTH v. Otis KNIGHTS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth filed this interlocutory appeal from an order of a Boston Municipal Court judge allowing the defendant's motion to suppress evidence obtained after police stopped the motor vehicle the defendant was operating and ordered him out of the vehicle. The police subsequently recovered a loaded firearm from within the vehicle, and the defendant was charged with various firearm offenses. After an evidentiary hearing, at which three police officers testified, the judge found that there was neither reasonable suspicion nor probable cause to justify stopping the defendant's vehicle and allowed the motion to suppress the firearm and a statement the defendant made to the police when the gun was found. We conclude that the police had sufficient reasonable suspicion of criminal activity to stop the defendant's vehicle and conduct a threshold inquiry, but the exit order was improper. Accordingly, we affirm the allowance of the motion to suppress, but for reasons different than those articulated by the motion judge.
The defendant was charged with unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition.
"[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
Background. We summarize the facts as found by the motion judge, supplemented with "evidence from the record that is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony" and where "the supplemented facts do not detract from the judge's ultimate findings" (quotations and citations omitted). Commonwealth v. Garner, 490 Mass. 90, 94 (2022).
The judge initially made no written findings of fact and allowed the motion to suppress in a brief margin endorsement. The judge took no action on the Commonwealth's subsequent request for written findings. At oral argument, the parties agreed that we could not resolve the legal issues presented without findings of fact. We therefore remanded the case to the motion judge, and findings of fact were provided on October 20, 2022. The parties then submitted supplemental briefs. As we discuss in more detail later, we decline to supplement the facts to the extent requested by the Commonwealth.
The defendant was employed at the New England Baptist Hospital and was on leave under the Family Medical Leave Act on March 26, 2019, when he went to the hospital looking for his payroll check. The defendant was informed that there was no check and that he needed to complete additional paperwork. The defendant became agitated and refused to leave but subsequently departed voluntarily after hospital security arrived and escorted him out of the hospital.
On the following day, March 27, 2019, Boston police officer Dos Santos investigated the encounter and learned that the defendant had not acted violently and did not make any threats. The officer also interviewed Julia Earle, a hospital employee, who reported that she saw the defendant at the grocery store shortly after the incident at the hospital. The defendant assisted Earle when her grocery bag ripped and helped bring the groceries to her vehicle. The judge found that the defendant told Earle, "I'm not playing around. These people are playing with my money." The judge further found that "[w]hile in the parking lot, the defendant told Ms. Earle that he now sold weed and cocaine to get money, and he showed her a firearm."
That same day, the Boston Police Department circulated a flyer from the Boston Regional Intelligence Center (BRIC) informing police that the defendant "might be in possession of a firearm." The judge noted that the BRIC flyer " ‘stated that it was uncorroborated information that Mr. Knights might be in possession of a firearm.’ " The flyer also stated: "An associate of KNIGHT [sic ] stated that KNIGHT [sic ] displayed a firearm to her which was located under the floor mat of the driver's seat of his vehicle." The department also issued a "BOLA [sic]" (be on the lookout) for the defendant's vehicle.
Although the judge did not specifically refer to the statement attributed to Earle, the flyer itself was introduced as an exhibit at the hearing. We therefore consider the flyer in its entirety.
On March 28, 2019, Officer Joshua Neely observed the vehicle outside the defendant's residence at 175 Fuller Street in Dorchester. The vehicle was idling, and no one was present. Additional officers arrived and, at one point, the defendant came outside from his residence, approached the vehicle from the passenger side, opened the door, reached in, closed the door, and then returned to his residence. Several minutes later, the defendant came back outside, got into the vehicle, and drove away. Officer Neely followed, and within minutes, activated his cruiser's lights and siren and pulled the defendant over. Prior to initiating the stop, Officer Neely learned that the defendant did not have a license to carry a firearm. The defendant had not committed any traffic violations prior to the stop and pulled over without incident. The judge found the following sequence of events occurred after the police approached the defendant's vehicle:
The judge made no mention of the fact that Officer Neely conducted a CJIS inquiry which revealed that the defendant did not have a valid license to carry a firearm. Nonetheless, contrary to the defendant's assertion, this fact was not disputed at the hearing on the motion to suppress and we accept it as true for the purpose of our analysis.
"The defendant appeared to be agitated. He was asked to exit the vehicle. The officers gave the defendant Miranda warnings. He was placed in handcuffs and taken into custody and moved to the rear of the vehicle. As an officer was moving the defendant to the rear, another officer saw the butt end of a firearm on the passenger side floor. After the firearm was recovered from the defendant's motor vehicle, and after the defendant stated he understood the Miranda warning, the defendant stated that the firearm was not loaded and that it was used for target practice."
We note that the Commonwealth is correct that the judge's finding that the defendant was handcuffed before the police saw the firearm in the vehicle is inconsistent with the testimony presented at the hearing, but given our conclusion, nothing turns on this discrepancy. Officer Neely testified: "I patted Mr. Knights down; my partner took Mr. Knights and started walking him to the rear of the vehicle, when I realized I saw the butt of the firearm I alerted Officer Foley who then placed him in handcuffs." The judge intervened at this point to clarify what happened and asked the Officer: "Just so I'm clear, I'm trying to take copious notes here, so he is out of the car; he is pat-frisked, then walking to the back of the car you see -- you see the butt, you notify Foley, gun, and then he is handcuffed?" Officer Neely responded: "Correct."
On the basis of these facts, the judge concluded the police lacked probable cause to stop the defendant's vehicle. He reasoned that "[t]he events from the day before had not given rise to criminal charges. All they [the police] possessed at the time is that the defendant might have a firearm." The judge further ruled that there was no additional reason to stop the defendant's vehicle, as the defendant had not committed any traffic violations to justify the stop. The judge concluded: "It is unclear from the record what the purpose of the stop actually was, other than to gain entry to the motor vehicle to search for a possible gun. This crosses the line." Though the judge credited the testimony of all three police officers, he concluded that the Commonwealth had failed to meet its burden.
The judge also observed: "Furthermore, there were at least three officers located at the defendant's house when the defendant exited twice. They allowed him twice to get in his vehicle. If they had probable cause, he could have been stopped long before getting into the vehicle. There is no testimony why this did not occur."
It bears noting that at the conclusion of his rulings of law the judge incorrectly noted that "there [was] no testimony as to whether the gun could be seen in plain view." There was testimony on this precise point. See note 7, supra. In any event, because there is no question that the firearm was not visible to the police until after the exit order was issued, this error is inconsequential.
Discussion. The Commonwealth contends that the police lawfully stopped the defendant's vehicle because they reasonably suspected the defendant had committed a crime, namely unlawful possession of a firearm. That suspicion was based on Earle's report, repeated in the BRIC flyer, that the defendant was in possession of a gun two days earlier and the fact that the defendant did not have a license to carry a firearm.
The Commonwealth argues, in addition, that the judge improperly applied the higher standard of probable cause in determining that the stop was unlawful. Given our conclusion that the stop was justified based on a reasonable suspicion of criminal activity, we need not address this argument.
"Where a police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). A mere hunch does not amount to a reasonable suspicion. See Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020), quoting Prado Navarette v. California, 572 U.S. 393, 397 (2014) ("Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.").
Here, the police had more than a mere hunch that the defendant had committed a crime. They had learned from credible sources (a CJIS inquiry) that the defendant did not have a license to carry a firearm and that he showed Earle (an identified eyewitness) a gun in the grocery store parking lot. In light of these two specific, articulable facts, the police possessed a reasonable suspicion of criminal activity to justify the stop of the defendant's vehicle and conduct a threshold inquiry.
The fact that the police here did not attempt to question the defendant when they first saw him outside of his residence does not affect our analysis that it was permissible for the police to stop him and question him after he drove away. That said, as the motion judge observed, there is no apparent reason why the police did not conduct a threshold inquiry before the defendant entered the vehicle.
However, that the stop of the defendant's vehicle was lawful does not end our inquiry. The question remains whether the exit order was lawful and, if not, the firearm, which was not observed by the police until after the defendant was ordered out of the vehicle, must be suppressed. "[W]hen the police reasonably believe that a motorist has committed a crime, a motorist reasonably should expect that the police may engage in greater intrusions than when the motorist is suspected merely of a driving infraction." Bostock, 450 Mass. at 621. Nonetheless, an exit order must be "[ ]proportionate to the level of suspicion that prompted it." Id. at 622.
Here, the exit order was not proportional to the suspicion that prompted the intrusion and, as a result, was unconstitutional. Although the police reasonably suspected that the defendant had committed the crime of unlawful possession of a firearm two days earlier, given the gap in time, they had no reason to believe that the defendant had the firearm on his person or in his vehicle when they issued the exit order. Nor did the circumstances give rise to a legitimate fear that the defendant might flee before the officers could conduct a threshold inquiry. Contrast Bostock, 450 Mass. at 622-623 (officers investigating a report of breaking and entering into motor vehicles found the defendant, who matched the description of the perpetrator, within minutes of the initial dispatch could properly order the defendant to get out of the vehicle to prevent the defendant's escape and protect the safety of the officers from a fleeing vehicle or high-speed pursuit).
The Commonwealth also argues that the exit order was justified based on the defendant's conduct when the officers approached his vehicle. The officers testified that the defendant "immediately became agitated and combative," started to yell, and stated that "[the officers] weren't allowed to stop him; that he was on his way to the hospital, that he had to leave." However, the judge found only that the defendant was "agitated." Agitation, without more, did not justify an exit order, and we cannot supplement the judge's findings with the testimony on which the Commonwealth relies without running afoul of the rule against appellate fact finding. While it is true that the judge stated that he credited the officers’ testimony, he did not always do so. Moreover, as the court in Garner emphasized, "[a] statement generally crediting witness testimony is not the same as making factual deductions based on the evidence presented." Garner, 490 Mass. at 94. Because the police observed and then seized the firearm as a result of an unlawful exit order, the motion to suppress was properly allowed.
We note that it is not unusual for a motorist to become upset or "agitated" when stopped by the police for no apparent reason. Where, as here, the defendant had not committed a motor vehicle infraction, his questioning of the officers and insisting that they had no basis to stop him was not an unreasonable reaction.
Given our conclusion, we need not address the Commonwealth's arguments regarding the validity of the pat frisk or seizure of the firearm under the plain view doctrine.
Order allowing motion to suppress affirmed.