Opinion
No. 95-11811
March 5, 1996
FINDINGS OF FACTS, RULINGS OF LAW and ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The defendant, Eugene Thomas ("Thomas"), moves to suppress cocaine seized from his person. As grounds for his motion, the defendant asserts that the police had no reasonable justification to stop him. After an evidentiary hearing, the motion to suppress is ALLOWED.
FINDINGS OF FACT
Based on all the credible evidence and all reasonable inferences drawn from that evidence, the court finds the following facts:
Officer Stratton ("Stratton") is an experienced officer familiar with drugs, including, specifically, cocaine, and the way in which drugs commonly are packaged and how they feel. He is also familiar with the Walnut Park area, an area in which there have been several shootings.
On August 14, 1995, the police received a 911 call at about 9:00 p.m. The caller said that a bald black male, six feet tall, weighing about two hundred fifty pounds, was selling drugs and that he had a gun. The caller also said that the man was wearing tan shorts and a cap and that he was in a blue Lincoln. He said that one of the letters on the license plate was Z. Police officers, including Stratton, went to that location. They found no car or person meeting that description.
The next night the police again received a 911 call at approximately 9:51 p.m. This time the caller said that he saw someone with a gun in a blue car near the rotary in Walnut Park. The person was described as a black male weighing two hundred fifty pounds. License plate identifying information was provided as 108C. I draw the inference that the difference between the C and Z was more likely than not a difference in what the operator taking the call heard as opposed to calls having been received using different license plate letters. Again, police went to the area and found neither the car nor a person meeting the description of the suspect.
On August 16, police officers patrolled the area; Stratton observed a blue Lincoln Town Car with registration number "108CFE." From the numbers and letters on the license plate, the police ascertained that the car was registered to a Mr. P. Warner, and that Mr. Warner resided at 9 Woodman Road, Roxbury. The police did not take any steps to determine, and, therefore, did not know, Mr. Warner's race, height or weight; neither did they know whether he was bald. No police officers conducted surveillance at 9 Woodman Road.
On August 17, the police received a call at approximately 8:13 p.m. about a black male in a blue Lincoln. The caller stated that he had drugs in the car and guns and identified the license plate as 108C. Officers again responded; no such car was located. Stratton returned with his partner at approximately 11:25 p.m. hoping that he would be able to locate the suspect. He had no idea who made the 911 calls. He did not know whether the calls were made from different people or from the same person. He had no knowledge with respect to the person or persons making the 911 calls.
When Thomas was sighted by Stratton, over three hours after the call on August 17 had been made, he was standing in front of an address on Walnut Park other than 9 Woodman Road. He reasonably appeared to Stratton to be over six feet tall, heavyset and bald. He was wearing red and blue print shorts. He was also wearing a red shirt and a tan cap. He was not in any car. He was standing and speaking with someone on a stoop. He was doing nothing whatsoever that was suspicious in any way. A blue Lincoln with the license plate "108CFE" was parked three to four car lengths away from where Thomas was chatting.
Stratton observed Thomas walk away from the stoop. He was proceeding in the direction of 9 Woodman Road, but his destination was not apparent. As Thomas walked away from the stoop, he did not attempt to enter the blue car or go into the car. He simply was walking in a direction which, had he continued walking straight, would have taken him past the car. He made no movement directly angled toward the car. He did not enter or attempt to enter or walk up to the steps to 9 Woodman Road.
Stratton was in an unmarked truck. As Thomas walked, he saw the unmarked vehicle. After looking at the unmarked police vehicle, Thomas turned around quickly, changing the direction in which he was walking. He did not run. He displayed no frightened or strange expression upon his face when he changed direction. He made no furtive movements. He was approximately two car lengths away from the blue Lincoln when he turned around. Officer Stratton then left the unmarked vehicle with his partner and approached him.
The defendant was cooperative. He did not make any movements that were suspicious. At that point, the officers had no reasonable suspicion that the defendant had committed or was about to commit a crime. Stratton pat frisked Thomas because he matched the description of the three radio calls of a man with a gun, and he felt in the pocket of Thomas' thin-fabric shorts a bag that the officer believed contained smaller bags of cocaine. Stratton removed it and placed Thomas under arrest.
RULINGS OF LAW
The standard to be applied in testing the appropriateness of an investigative stop is "reasonable suspicion". Commonwealth v. Lyons, 409 Mass. 16, 18 (1990). "Reasonable suspicion" means something more than a hunch. To rise to the level of "reasonable suspicion," police action must be based on "specific, articulable facts and reasonable inferences therefrom" that the person stopped has committed, is committing, or is about to commit a crime. Id. at 19. Where, as here, the suspicion is predicated upon an anonymous tip, there must be some indicia, albeit less "vigorous" than is required to establish probable cause, of the tip's reliability and the informant's basis of knowledge. Id. Independent police corroboration may make up for deficiencies in one or both of those factors. Id.
In Lyons, an anonymous caller reported that two while males had purchased narcotics and that they were headed in a particular direction in a sliver Hyundai; the automobile registration was also provided. Forty-five minutes later, the police stopped a car after corroborating only "the description of the automobile, the direction in which it was headed, and the race and gender of the occupants before making the stop." Id. at 20. The court, accordingly, held that the stop was not based upon "reasonable suspicion."
Here there is even less corroboration. Stratton made his observations a little over three hours after the last 911 call was received. He saw a tall, black, heavyset, bald male. These characteristics, taken singly or together, are not particularly unique. The information provided by the caller did "not reveal any special familiarity with the defendant['s] affairs that might substitute for explicit information about the basis of the caller's knowledge," id., and the corroboration by the police went "only to obvious details, not non-obvious details." Id. at 21. Furthermore, Thomas was not inside the blue car, nor exiting or entering that car. He also was not entering or exiting the address to which the Lincoln was registered. The blue car was not parked at a specific location provided by the anonymous informant. Thomas, himself, did nothing that would trigger a reasonable suspicion that he possessed contraband, a gun, or otherwise was engaged in a criminal enterprise.
The instant facts are quite different from those in Commonwealth v. Alverado, 38 Mass. App. Ct. 650 (1995), a case relied upon by the Commonwealth. In Alverado, the caller had reported something highly specific, namely a gun wrapped in a towel. In contrast to Alverado, there was no reason for Stratton to infer that the caller's knowledge was based on personal observation. Additionally, in Alverado the caller had reported having seen several Hispanic subjects in a blue automobile in a certain driveway. The police corroborated the information when they arrived at that exact driveway, within ten minutes after receiving the tip, and they saw a blue car with six "Hispanic or Black" people sitting in it starting to back out of the driveway.
The 911 tip at issue is also distinguishable from the anonymous note from a bus passenger discussed in Commonwealth v. Anderson, 366 Mass. 394 (1974). Because it could be inferred that the note was written by a passenger, it was reasonable to infer that the author had personally observed an armed and dangerous passenger. Here, there is nothing about the circumstance of the 911 tip that would provide the basis for an inference of reliability.
Although the potential danger to the public should be taken into account in assessing the police response to a tip involving a gun, nothing in Commonwealth v. Alverado, 38 Mass. App. Ct. at 653, case suggests that whenever an anonymous tip involves a gun, the "reasonable suspicion" standard is thereby satisfied. This is not a situation where the circumstances can be said to have "reasonably indicated potential danger to the public from an armed man or other imminent emergency requiring immediate action." Id. Thomas was observed standing on a stoop and walking down a sidewalk, not suspicious activities. The manner and location of his conversation was not unusual. The police had no knowledge of the reputation of this defendant. The simple fact that he turned around, after looking at an unmarked vehicle, is not, by itself, coupled with the rest of the evidence, indicative of an attempt to avoid contact with the police that may, under certain circumstances, justify a stop.
In sum, the police lacked the requisite "reasonable suspicion" to make an investigative stop. Accordingly, any items seized as a result of the unlawful stop must be suppressed as "fruit of a poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963).
If the stop were justified, the seizure of drugs from Thomas' pocket was proper. Stratton had sufficient training to be able to recognize drugs by feel, and he recognized that what he was touching constituted drugs. Minnesota v. Dickerson, 113 S.Ct. 2130, 2136 (1993) holds that contraband, the identity of which is disclosed to an officer's touch, may be seized during an investigative stop.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant's motion to suppress be ALLOWED.
E. Susan Garsh Justice of the Superior Court
DATED: March 5, 1996