Opinion
16-P-374
03-20-2017
COMMONWEALTH v. Gerkiale WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an evidentiary hearing, a judge of the Central Division of the Boston Municipal Court ordered the suppression of evidence obtained by Boston police officers during an unlawful stop and seizure of the defendant. In this interlocutory appeal, the Commonwealth does not challenge the judge's findings as clearly erroneous. Rather, it contends that the judge's conclusions based on those findings were erroneous as matter of law. We affirm.
Background . The motion judge heard testimony from two witnesses: Boston police Officer James O'Loughlin and the defendant's girl friend. We summarize the judge's findings below.
On July 23, 2015, around 7:30 p.m. Officer O'Loughlin and his partner, Officer Kelly, were working on foot, in plain clothes. They were standing at the corner of Wise and Centre Streets, in the Jamaica Plain section of Boston. The motion judge found this to be a high crime area. The foot patrol officers were conversing with two Boston police officers, Rivera and Robbins, and a Boston Housing Authority officer, who were standing outside their cruisers.
A car pulled up past the group of officers and someone yelled out from within the car, while pointing up the street, "There's a fight up there." Officers Robbins and Rivera activated their flashing lights and drove their cruiser to the scene one-half block away. Officers O'Loughlin and Kelly walked to the scene. A second car stopped next to them, and, from inside the car, a woman said, "They're fighting right over there." She pointed to a coffee shop.
When the officers arrived at the coffee shop, they saw the defendant and an older man yelling at each other, while a group of approximately ten to fifteen people watched. The officers could not make out what the men were saying to each other. The officers also observed no evidence of a physical altercation.
Upon the arrival of the police, the older of the two men walked towards Officer Rivera, who had exited his cruiser by this time. The defendant walked in the opposite direction towards Officer O'Loughlin. The defendant then switched directions and proceeded away from Officer O'Loughlin. He walked between two parked cars to cross the street. The defendant was "very excited and sort of frantic." Officer Rivera told him to stop. The defendant continued walking away, yelling, "I'm getting out of here. I'm out of here. I'm out of here." Officer Rivera ordered the defendant to stop at least three times, but the defendant ignored him. The defendant was followed by a woman who was later identified as his girl friend.
Seeing that the defendant was not stopping, Officers O'Loughlin and Kelly "angled to intercept" him, at which point Officer O'Loughlin observed the defendant put his hand in his right pocket and whisper something to his girl friend. O'Loughlin grabbed the defendant's left arm. The defendant attempted to pull his arm away. Kelly then grabbed the defendant's right side, and he felt a firearm in the area of the defendant's waist. The two officers brought the defendant to the ground and arrested him. The defendant indicated the firearm was not loaded. The defendant was charged with carrying a firearm without a license, resisting arrest, and the common-law offense of affray.
At the end of the suppression hearing, the motion judge issued findings of fact and conclusions of law from the bench. She determined that the defendant was seized when Officer Rivera ordered him to stop. She also concluded that because there was no evidence of anything more than a verbal argument at the time the seizure occurred, the officers were not justified in seizing the defendant. As a result, the judge granted suppression of the gun and the other fruits of the seizure.
Discussion . In reviewing the motion judge's determination, we accept the judge's factual findings absent clear error but review independently her ultimate findings and conclusions of law. See Commonwealth v. Scott , 440 Mass. 642, 646 (2004).
The motion judge concluded, and the Commonwealth agrees, that the defendant was seized in the constitutional sense when Officer Rivera ordered him to stop while he attempted to walk away from the scene. At the point of seizure, "we ask whether the stop was based on an officer's reasonable suspicion that the person was committing, had committed, or was about to commit a crime." Commonwealth v. Martin , 467 Mass. 291, 303 (2014). On appeal, the Commonwealth contends that the officers had reasonable suspicion to believe the defendant had committed the offenses of assault and battery, affray, and disturbing the peace. We disagree.
The commission of both an assault and battery and an affray require the use, or threatened use, of physical force. See Commonwealth v. Porro , 458 Mass. 526, 529 (2010), quoting from Commonwealth v. McCan , 277 Mass. 199, 203 (1931) (an "assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight’ "). See also Commonwealth v. Nee , 83 Mass. App. Ct. 441, 444 (2013), describing an affray as the "(1) fighting by or between two or more persons, (2) in some public place, (3) so as to cause alarm to the public." In this context, " ‘[f]ighting’ is descriptive of conduct which by its very nature involves the use of physical force or violence or any threat to use such force or violence if that threat is objectively possible of immediate execution." Id. at 446, quoting from Commonwealth v. Sinai , 47 Mass. App. Ct. 544, 548 (1999).
Here, although the officers received two reports of "fighting" or "a fight," there was no indication whether the passing motorists were referring to a physical or verbal disagreement. What the officers encountered upon their arrival at the scene dispelled any reasonable belief that the fight was anything more than a verbal argument. The officers observed two men yelling at each other. Their voices were not loud enough for the officers to discern what the men were saying. The officers also observed no injuries, disheveled appearances, or any other signs of a physical altercation.
In common usage, the word "fight" includes both physical and verbal encounters. See Merriam-Webster's Collegiate Dictionary 467 (11th ed. 2005) (defining "fight [verb]" as "to contend in battle or physical combat" and "fight [noun]" as "a hostile encounter," "a boxing match," or "a verbal disagreement").
We also are not persuaded that there was a reasonable basis to suspect the defendant of disturbing the peace. The elements of this offense have an objective and a subjective component. Disturbing the peace involves conduct that would be unreasonably disruptive to most people and which has actually infringed upon another person's right to be undisturbed. See Commonwealth v. Orlando , 371 Mass. 732, 734-735 (1977). See also Commonwealth v. Mullins , 31 Mass. App. Ct. 954, 955 (1991) (sufficient evidence of disturbing the peace where neighbors twice complained of music blasting from a house, police officers heard the defendant yelling obscenities out the window, neighbors had gathered outside, and the officers' attempts to get the defendant to be quiet were unsuccessful).
Whether specific conduct constitutes disturbing the peace is necessarily dependent on the time of day and the location. Commonwealth v. Orlando , supra at 735 (distinguishing between loud and abusive language which might be constitutionally protected in a public store but would constitute disturbing the peace late at night in a residential neighborhood). The incident here occurred in the early evening hours of a summer day, on "a pretty busy street," with "a lot of foot traffic." The officers merely observed a group of people watching a heated verbal argument, which ended upon their arrival. These observations were insufficient to give rise to a reasonable suspicion that the defendant's conduct was unreasonably disruptive to most people. "Vulgar, profane, offensive or abusive speech is not, without more, subject to criminal sanction." Commonwealth v. A Juvenile , 368 Mass. 580, 589 (1975). Accordingly, there was no reasonable basis to believe the defendant had committed the crime of disturbing the peace.
Because the Commonwealth has failed to satisfy the first objective prong of disturbing the peace, we need not address the Commonwealth's contention regarding the second prong and the passing motorists' possible subjective alarm.
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Finally, we also are not persuaded by the Commonwealth's assertion that the officers' observations of the defendant whispering to his girl friend while walking away from them with his hand in his pocket justified a stop and frisk for weapons. An officer may stop and frisk someone if there is reasonable suspicion that the person has committed, is committing, or is about to commit a crime, and is armed and dangerous. Commonwealth v. Narcisse , 457 Mass. 1, 9-10 (2010). Here, there was no reasonable basis to suspect the defendant of having committed a crime. Further, contrary to the Commonwealth's contention, the defendant's election to walk away from an argument and not engage with the police does not give rise to consciousness of guilt. See generally Commonwealth v. Meneus , 476 Mass. 231, 240 (2017). Even assuming, without deciding, that it was reasonable for the police to infer that the defendant was concealing something from them, they had no specific, articulable basis to suspect that he was unlawfully carrying a weapon. The police were never alerted to the presence of a weapon, and they observed no weapons or injuries resulting from the use of any weapon. Accordingly, in these circumstances, we conclude the police here lacked a reasonable suspicion to stop and frisk the defendant and, therefore, the judge properly allowed the defendant's motion to suppress the fruits of his illegal seizure.
Order allowing motion to suppress affirmed .