Opinion
16-P-281
03-02-2017
COMMONWEALTH v. Timothy MCMANUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of unlawfully carrying a firearm, in violation of G. L. c. 269, § 10(a ), and unlawfully carrying a loaded firearm, in violation of G. L. c. 269, § 10(n ). On appeal, he claims that the motion judge erred in denying his motion to suppress the handgun seized by police from his person on the theory that the encounter with the officer was a search and a seizure without reasonable suspicion. We affirm.
The defendant was found guilty of a third count, unlawful possession of ammunition, in violation of G. L. c. 269, § 10(h ), but this count was dismissed after the verdict on motion by the Commonwealth.
1. The search and seizure . The defendant claims that his encounter with Sergeant Brooks was a seizure and a search because the sergeant gestured close to his stomach area, and physically touched his waist area. He further claims that the seizure and search were not supported by reasonable suspicion. We disagree. In analyzing the denial of a motion to suppress, this court accepts the motion judge's subsidiary findings of fact absent clear error, but independently evaluates the ultimate findings and conclusions of law. Commonwealth v. Scott , 440 Mass. 642, 646 (2004).
The motion judge found that the defendant was not seized until Brooks felt the outside of the defendant's jacket. A person is seized when, in light of the circumstances, "a reasonable person in the situation would not feel free to leave." Commonwealth v. Gomes , 453 Mass. 506, 510 (2009). See United States v. Mendenhall , 446 U.S. 544, 554 (1980). If there is no seizure, there is no requirement to show reasonable suspicion. Commonwealth v. Nestor N ., 67 Mass. App. Ct. 225, 229 (2006).
Here, leading up to Brooks's grabbing the defendant's jacket, there was no show of authority that would objectively have led the defendant to believe that he was not free to leave. There was no display of a weapon, no physical force, or even a command to stop. Commonwealth v. Sanchez , 403 Mass. 640, 644-645 (1988). When Brooks approached the group, he did not have his blue lights on, spoke in a conversational tone, and even told them, "Hey, hey you're all set—there was a house party—I just want to ask you a few questions." These actions were consistent with a "field interrogation observation," an action that does not amount to a seizure without a show of authority. See Commonwealth v. Lyles , 453 Mass. 811, 815-817 (2009) (officer held defendant's identification and therefore defendant did not feel free to leave).
There was also no search by Brooks's use of over-gesturing to see if the defendant would flinch, which may have indicated that he was holding a weapon. As the judge found, and contrary to the defendant's claim, Brooks did not "poke" the defendant in his belt area. That determination is supported by the record. At the hearing, Brooks explained that he began to "talk[ ] with [his] hands," a tactic he has used which, based on his training and experience, can lead to the recovery of concealed firearms. He employed this technique after he saw the defendant touch the right side of his jacket as Brooks approached him. To the extent there was any contact with the defendant's person, Brooks explained that he may have "very subtly" touched the lower waistband area of the defendant's jacket. This conduct did not amount to a patfrisk, or what the defendant contends is a "tap frisk," and certainly does not amount to a search.
Although the judge made no explicit findings concerning whether the inadvertent touch constituted a seizure or a search, it is implicit in her ruling that she found the sergeant did not intentionally touch the defendant.
Contrary to the defendant's assertion, an officer's physical contact with a citizen does not immediately amount to a seizure or search in the constitutional sense. Brooks testified that it was not his intent to touch the defendant while using the over-gesturing tactic, "[a]nd again, this wasn't something where I was poking him or would require a flinch, it's just, in talking, coming near [his body]." The sergeant explained that he may have touched the defendant on the belt the second time he gestured, but later on stated, "I'm not sure I even touched him as much as just his—I reached out towards that area. I mean, if you're asking if there was contact between my fingertip and his jacket, I would say that I don't know, it's possible. It wasn't like I was poking him. I want to be very clear that I wasn't poking him." During cross-examination by defense counsel, the sergeant further explained that "[i]f the question is whether I made contact with him, the short answer is I don't believe I did but I don't know. The contact would have been so subtle I don't know that I would have even characterized it as a contact then or now."
Even if there was inadvertent contact, Brooks's testimony (which the judge expressly credited) demonstrates that it was not done with the intent to detain or search the defendant, or even to exhibit authority. Rather, Brooks explained that he used the over-gesturing tactic to see if the defendant would flinch, which would indicate he was probably armed. This type of conduct is different in kind to that which occurred in the cases upon which the defendant relies. "[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification." Commonwealth v. Stoute , 422 Mass. 782, 789 (1996).
The defendant claims that the physical touching in this case is like those in United States v. Zapata , 18 F.3d 971, 977 (1st Cir. 1994) (officer purposely placed hand on defendant's back to coax defendant to where officer wanted him; established seizure); United States v. Young , 105 F.3d 1, 6 (1st Cir. 1997) (officer's lunge at defendant in attempt to apprehend him considered a seizure); United States v. Eustaquio , 198 F.3d 1068, 1071 (8th Cir. 1999) (after asking defendant to pull her clothes tight against her body, officer saw what appeared to be a line or a bulge just to the outside of her body, he reached out and poked the observed bulge with his finger, and asked what it was); United States v. Camacho , 661 F.3d 718, 727 (1st Cir. 2011) (intentional tap of defendant's waist with open palm was search). We disagree. These cases show situations where there was an intent to touch the defendant, coupled with an intent to search, detain, or show authority. Here, the incidental touch by Brooks was not intentional, and occurred while he was over-gesturing to see if the defendant had a reaction that might indicate he was carrying a firearm. There is no constitutional protection against observation of something in plain view. See Commonwealth v. Ciaramitaro , 51 Mass. App. Ct. 638, 645 n.11 (2001) ("A plain-view observation is not a search in the constitutional sense; it requires neither a warrant, nor an exception to the warrant requirement").
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2. Reasonable suspicion . The defendant also claims that Brooks's decision to pat-frisk him was not supported by reasonable suspicion. We disagree.
"Seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Commonwealth v. Watson , 430 Mass. 725, 729 (2000). The motion judge found twelve factors leading up to the patfrisk of the defendant that gave rise to Brooks's reasonable suspicion that the defendant was carrying a firearm:
"1. the officer's observation of defendant looking in the direction of the cruiser—putting his arm around the female in a hugging motion, putting his head on her shoulder and looking up towards the officer's vehicle[;] 2. the timing of the group crossing the street after the Officer drove by[;] 3. the observation that not all of the members of the group crossed the street together[;] 4. the observation that the defendant ran 20-30 feet ahead of the group[;] 5. the defendant was 'frozen in the moment' when the officer exited from his vehicle[;] 6. the defendant walked towards the officer [;] 7. the observations of the defendant touching his right side on numerous occasions [;] 8. the group running back towards the officer and defendant[;] 9. the officer recognizing a member of the group as a known gang member who had been present during firearm arrests[;] 10. the defendant 'flinching twice'[;] 11. the area described as a 'high crime area'[;] and 12. the initial call was regarding a fight on Blue Hill Avenue and the fear of possible retaliation."
These findings, except finding three (which the parties agree is clearly erroneous), along with the sergeant's training and experience, gave rise to reasonable suspicion that the defendant was illegally carrying a firearm. See Commonwealth v. Nestor N ., 67 Mass. App. Ct. at 230 (patfrisk justified where defendant reached toward waistband when questioned by police). The patfrisk, and subsequent recovery of the illegal firearm, were justified.
Judgments affirmed .