Opinion
15-P-520
02-29-2016
COMMONWEALTH v. ISIAH THIGPEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Isiah Thigpen, was convicted of two offenses related to the possession of a firearm, which was found during a search. On appeal, the defendant argues that the motion judge erred in denying his motion to suppress the firearm, claiming that prior to the search, he was unconstitutionally seized by the police without reasonable suspicion that he was involved in a criminal activity. We affirm.
We need not reach the defendant's fleeting claim, made without accompanying argument or citation, that his statements made about the firearm should have been suppressed as well. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
"When reviewing the disposition of a motion to suppress, 'we accept the motion judge's subsidiary findings of fact absent clear error.'" Commonwealth v. Lyles, 453 Mass. 811, 814 (2009), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). "We make an independent determination whether the judge correctly applied constitutional principles to the facts as found." Lyles, supra.
"We have stated that a person has been '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.'" Id. at 815, quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985). The motion judge's findings that we recite below were not clearly erroneous, and they support the view that the defendant consented to speak with the officers and was not seized or searched until he volunteered that he had a warrant out for his arrest.
Three police officers were patrolling in an unmarked police car. See Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 561 (1989) ("[W]e do not think that three [officers] . . . is impressive or overwhelming"). They observed the defendant and another male walk away from the cruiser. The officers reversed direction and drove up to the two men. See Commonwealth v. Laureano, 411 Mass. 708, 710 (1992) (police merely following individual to place police have a right to go, without any show of authority, does not effect seizure). The officers did not use their emergency lights or siren as they approached the men. See Commonwealth v. Williams, 422 Mass. 111, 113, 116-117 (1996) (police who did not "activate the[ir] cruiser's lights or siren" while merely following defendant to surveil him were not engaged in pursuit or stop at that time). After the police car pulled up next to the two men, the officers remained in the car and asked the men if they could speak with them; the men agreed. See Commonwealth v. Van Cao, 419 Mass. 383, 385-388 (1995) (describing permissible field interrogation). The judge found that the officers "never employed any authoritative tone . . . [or] conduct in making this request." See Commonwealth v. Sanchez, 403 Mass. 640, 644-645 (1988), quoting from United States v. West, 651 F.2d 71, 73 (1st Cir. 1981) (police officer asking to talk to defendant without show of authority not seizure; "show of authority may consist of . . . authoritarian language or tone of voice"). See also Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 368-369 (2010) (no seizure when officers approach defendant and ask identity in "reasonable tone").
The men were asked to identify themselves. The first did so, and the second, the defendant, "who appeared very nervous[,] . . . said he was Isiah Thomas, date of birth 12/24/85." See Van Cao, supra (police merely "asking [individuals] to identify themselves, to give their date of birth and a physical description" was not seizure where there was no order to respond to questions or indication that they could not leave). Using the computer in their car, the officers were unable to verify the data that the defendant had provided to them. When the officers informed the defendant of this fact, he provided a different date of birth and a name that the judge found was "his true identity," Isiah Thigpen; he then disclosed that there was a warrant out for his arrest. We conclude that the encounter was voluntary until the defendant admitted to the outstanding warrant. See Sanchez, supra at 644-646; Van Cao, supra.
The defendant's reliance on Commonwealth v. Lyles is misplaced. In that case, the Supreme Judicial Court held that the defendant was seized when a police officer retained the defendant's identification (which might have been a driver's license). See Lyles, 453 Mass. at 813 & n.5, 815-816. The Supreme Judicial Court ruled that a seizure had occurred because a reasonable person would likely not feel free to leave without their identification. See id. at 815-816. In contrast, the officers in the instant case had taken nothing from the defendant that would have required him to remain on the scene and provide his name and date of birth.
Once the defendant admitted to the outstanding warrant, the police had the right to arrest him. See Commonwealth v. Clermy, 421 Mass. 325, 326-328 (1995) ("The defendant was arrested on an outstanding motor vehicle default warrant . . . . [It was] a valid arrest"). Having probable cause to arrest, the police had the lawful authority to search the defendant and the bag he was carrying incident to that arrest for weapons. See G. L. c. 276, § 1. See also Commonwealth v. Johnson, 413 Mass. 598, 602 (1992); Clermy, supra at 326-329; Commonwealth v. Prophete, 443 Mass. 548, 552, 557 (2005). The lawful search incident to arrest here ultimately revealed that the defendant had a loaded, unlicensed firearm in the bag that he was carrying. See c. 276, § 1; Johnson, supra. So long as there was probable cause to arrest, the search of the defendant's bag was lawful regardless of whether the search conducted incident to his arrest occurred just before or after his formal arrest. See Commonwealth v. Washington, 449 Mass. 476, 481 (2007) ("[A] suspect need not be formally under arrest at the precise moment of a search incident to arrest; the search may precede the formal arrest so long as probable cause exists independent of the results of the search").
Judgments affirmed.
By the Court (Kafker, C.J., Rubin & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.