Opinion
18-P-1413
09-30-2019
COMMONWEALTH v. Edward MEJIAS, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the denial of his motion to suppress a firearm, seized pursuant to a patfrisk, the defendant proceeded to a bench trial and was convicted of carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ). On appeal, the defendant claims that the motion judge erred in denying his motion to suppress. We agree and reverse.
Background. At approximately 8:30 P.M. on September 8, 2016, the defendant was walking along Shore Road in East Brookfield, when two police officers in a cruiser pulled up to him. It was a dark night and the defendant was staggering a bit along the back road. Officer Ramos called out from the driver's seat of the cruiser, and asked the defendant where he was going. The defendant answered that he had gotten into an argument with his girlfriend, so he was out for a walk. He said he was going to get cigarettes and asked the officers for a ride to the store. The defendant admitted to drinking alcohol and Officer Ramos noted that the defendant had slurred speech and glassy eyes, and smelled of alcohol. Officer Ramos stated that they could not give him a ride to the store but they could take him home. The defendant agreed. Officer Ramos then got out of the cruiser and pat frisked the defendant, finding a gun under the defendant's pant leg at the ankle. The other officer, who was standing next to the defendant, placed him under arrest.
The facts are taken from the motion judge's findings, supplemented by the testimony of East Brookfield Police Officer Felix Ramos, whose testimony the judge explicitly credited. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018) (appellate court may look to uncontroverted evidence at motion hearing that is consistent with judge's findings).
Just as the officers made contact with the defendant, dispatch informed them that it had received a 911 call concerning a shirtless man walking on the roadway. Although the motion judge found that the police approached the defendant in response to the 911 call, both parties appear to acknowledge that finding to be erroneous.
At this point, Officer Ramos recognized the defendant from a call for assistance he had responded to a couple of hours earlier, at the defendant's home. Officer Ramos had learned that the defendant had a lengthy criminal history and an active restraining order that prohibited him from possessing firearms at the time of the earlier response.
Officer Ramos testified that he pat frisked the defendant "for officer safety.... It was just more of a thing we do. I always do that." In response to repeated questions concerning whether the defendant did anything to give rise to a concern for officer safety, Officer Ramos indicated that the defendant did nothing to raise such concerns.
Discussion. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error." Commonwealth v. Meneus, 476 Mass. 231, 234 (2017). We review independently the application of constitutional principles to the facts found. See Commonwealth v. Campbell, 475 Mass. 611, 615 (2016). Here, the judge determined that "when the defendant agreed to accept the ride home in the cruiser, the police officer had a right to search his person to assure his safety." The judge reasoned that "it is foreseeable that the officer would pat frisk for weapons before defendant was placed into the cruiser and therefore, [the defendant] consented to that search."
The judge correctly determined that, under the circumstances of this case, the patfrisk could only be justified, if at all, on the basis of consent. Otherwise, the Commonwealth had the "burden to demonstrate that the police officers' stop and frisk of the defendant were justified by a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous." Commonwealth v. Narcisse, 457 Mass. 1, 5 (2010). Here, there was no suspicion that the defendant was engaged in criminal activity at any point prior to the patfrisk. Neither was there any suggestion that the defendant was armed and dangerous. Indeed, the Commonwealth did not seek to justify the patfrisk on these grounds, either below or on appeal.
Instead, the Commonwealth argues that the patfrisk "did not require legal justification" because the police were performing a community caretaking function and their actions were "reasonable under the circumstances." In carrying out their community caretaking function, police may stop individuals, inquire about their well-being and "take steps that are reasonable and consistent with the purpose of [their] inquiry, even if those steps include actions that might otherwise be constitutionally intrusive" (citation omitted). Commonwealth v. Knowles, 451 Mass. 91, 95 (2008). Here, the police inquiry revealed that the defendant did not need any assistance. While the officer's offer of a ride home may have been in the spirit of community caretaking, it is undisputed on appeal that the police did not have the authority to compel the defendant to get into the cruiser. As such, the defendant's consent was necessary.
The Commonwealth relies on Commonwealth v. Silva, 366 Mass. 402, 403 (1974), to support the proposition that the police may pat frisk a citizen without any legal justification prior to giving him a courtesy ride in a police vehicle. We note that the propriety of the patfrisk was not at issue in that case as no incriminating evidence was discovered as a result. Thus, Silva does not support the Commonwealth's position.
Although Officer Ramos testified that he "had to get [the defendant] off the road" due to his intoxication, the Commonwealth did not suggest that Officer Ramos was taking the defendant into protective custody. See G. L. c. 111B, § 8 (authorizing police to assist "incapacitated" persons by placing them in protective custody).
Here, the judge found that the defendant agreed to accept a ride home in a police cruiser. That finding, however, is not sufficient to imply the defendant's consent to a patfrisk prior to entering the cruiser. Rather, when consent is relied on to justify a warrantless search, the Commonwealth "has the burden of proving that the consent was, in fact, freely and voluntarily given." Commonwealth v. Carr, 458 Mass. 295, 299 (2010), quoting Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). To be free and voluntary, the consent must be "unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’ " Carr, supra at 302, quoting Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976). Here, the record is devoid of any detail from which the defendant's free and voluntary consent to a patfrisk may be determined.
By invalidating the patfrisk, we do not suggest that the police did anything inappropriate in approaching the defendant and inquiring into his well-being. Nor do we suggest that it was unreasonable for the police to pat frisk the defendant prior to allowing him into the cruiser. Without legal justification for the patfrisk, however, consent was required.
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Order denying motion to suppress reversed.
Judgment reversed.
Finding set aside.