Opinion
14-P-1962
04-15-2016
COMMONWEALTH v. DONTE BOUYER.
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, Donte Bouyer, appeals from his convictions of possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10(h); possession of a loaded firearm, in violation of G. L. c. 269, § 10(n); and carrying a firearm without a license, in violation of G. L. c. 269, § 10(a). The defendant contends that his motion to suppress should have been allowed, claiming that the police officers conduct was unconstitutional. Because the police officers conducted a constitutionally permissible patfrisk, we affirm.
Background. We summarize the motion judge's findings reserving certain details for our analysis of the issues raised on appeal.
On February 17, 2013, at approximately 12:20 A.M., three Boston police officers, Thomas Noto (Officer Noto), Richard Moriarty (Officer Moriarty), and Daniel Griffin (Officer Griffin) (collectively, officers) were on patrol in an unmarked cruiser in plain clothes in Dorchester. As the officers turned right onto Michigan Avenue from Erie Street, they observed approximately eight to ten individuals exiting an alley next to 28 Michigan Avenue. Officer Griffin informed the other officers in the vehicle that two of the members of the group were known gang associates.
The officers' full names were not provided in the motion judge's findings, and were taken from the trial transcript.
This area is described as a high crime area where there have been reports of gang activity, persons shot, and firearm arrests. Twenty-eight Michigan Avenue was also known to the officers as a location where members of the Morse Street Gang frequent.
As the unmarked cruiser slowed, the group became aware of the vehicle, and their demeanor changed significantly. Officer Noto noticed that the defendant began to walk in a fast pace toward 28 Michigan Avenue with his right arm held against the side of his body and his left arm swinging naturally. The officers believed, because of their training and experience, that the defendant was walking in this manner because he was in possession of an illegal firearm. The officers alighted from the unmarked cruiser, but never activated their emergency lights or sirens, drew any weapons, or gave any commands to the individuals.
Officers Moriarty and Noto followed the defendant as he approached 28 Michigan Avenue. The defendant entered 28 Michigan Avenue first, followed by Officer Moriarty. The door then shut before Officer Noto reached it, and he lost sight of Officer Moriarty and the defendant. Once Officer Noto opened the door and regained visibility of Officer Moriarty and the defendant, he observed them in a struggle, with Officer Moriarty shouting, "Show me your hands, show me your hands!" Officer Moriarty informed Officer Noto that the defendant had a firearm. This caused Officer Noto to assist Officer Moriarty in subduing the defendant and securing the firearm, which had been in the area of the defendant's right waist.
Twenty-eight Michigan Avenue is a multi-family dwelling. The incident took place in the common area of the dwelling.
Discussion. 1. Standard of review. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). We review independently "the application of constitutional principles to the facts found." Commonwealth v. Eckert, 431 Mass. 591, 593 (2000), quoting from Commonwealth v. Magee, 423 Mass. 381, 384 (1996). "In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." Commonwealth v. Silva, 366 Mass. 402, 405 (1974). "In both aspects, the inquiry is whether the police conduct was reasonable under the Fourth Amendment." Wilson, supra at 394.
The defendant argues that the judge erred when he discredited the testimony of Shaday Isehenrien, who testified that she was on the phone with the defendant during the incident. This finding, however, was not clearly erroneous. See Commonwealth v. Hawkesworth, 405 Mass. 664, 670 (1989) (on review, a judge's determination of the credibility of the witnesses and findings of fact are given deference unless clearly erroneous).
2. Investigatory stop by the police. The defendant argues that there was insufficient justification to stop the defendant. "A police officer may make an investigatory stop 'where suspicious conduct gives the officer reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime.' The actions of the officer 'must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience.'" Commonwealth v. Gomes, 453 Mass. 506, 510-511 (2009), quoting from Wilson, supra. However, reasonable suspicion cannot be based solely on a hunch. See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).
There were sufficient articulable facts and reasonable inferences that provided the officers with reasonable suspicion that the defendant had committed a crime; namely, illegal possession of a firearm. See Wilson, supra. Officer Noto had received training at the Boston police academy, which included recognizing the characteristics of an armed gunman, and had been a police officer for approximately nine years. See Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007) (police may rely on experience and training as a basis for reasonable suspicion). The defendant was observed by the officers with his right arm held straight against his side and his left arm swinging naturally. See id. at 371 ("straight arm" gait contributes to factors to consider reasonable suspicion). The defendant also quickened his pace once he observed the police officers. See Commonwealth v. Stoute, 422 Mass. 782, 791 (1996) ("[D]efendant's . . . accelerated pace as he drew away from the officers, could have contributed to that suspicion"). The area in which the officers observed the defendant was a high crime area, which included police responses for persons shot, firearm arrests, and gang activity. See DePeiza, supra at 372 (backdrop of high crime area is part of the calculous of reasonable suspicion). These factors, in the aggregate, gave rise to the officers' reasonable suspicion that the defendant had committed a crime. See Gomes, supra.
3. Scope of the search. The defendant argues that the scope of the search conducted by the officers was unreasonable under the Fourth Amendment. "[W]here the first prong is satisfied and the crime is one of violence or of the type for which the offender would likely be armed (including the unlawful carrying of a firearm), little more is required after the stop to justify a protective frisk." Commonwealth v. Narcisse, 457 Mass. 1, 10 n.7 (2010). "The Fourth Amendment permits a police officer to conduct a patfrisk for concealed weapons, provided that such a search is confined to what is minimally necessary to learn whether the suspect is armed and to disarm him should weapons be discovered." Wilson, 441 Mass. at 396. Here, the scope of the intrusion was justified for the safety of the officers because of their reasonable belief, based on articulable facts and reasonable inferences therefrom, that the defendant was armed and dangerous.
There is no merit to the defendant's contention that the scope of the officers' physical restraint of the defendant constituted an arrest, requiring probable cause rather than reasonable suspicion. The scope of justified intrusion incident to a threshold inquiry is what is reasonable in the circumstances. In the present case, the motion judge found that the scope of the intrusion was justified for officer safety.
Judgments affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 15, 2016.