Opinion
19-P-810
08-13-2020
COMMONWEALTH v. JASON CATO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a District Court judge denied the defendant's motion to suppress evidence, a jury convicted the defendant of unlawfully possessing a firearm in violation of G. L. c. 269, § 10 (a). On appeal from the judgment, the defendant claims that the motion to suppress should have been allowed because (1) police lacked reasonable suspicion to issue an exit order, (2) excessive police force transformed a valid traffic stop into an arrest requiring probable cause, and (3) police exceeded the scope of any permissible inquiry by looking into the minivan from which the defendant was removed. We affirm.
The trial judge, who did not decide the motion to suppress, found the defendant not responsible for a civil infraction of operating without a valid inspection sticker.
Background. We summarize the motion judge's unchallenged findings. Springfield Police Officer Sean Sullivan was seated in his cruiser at approximately 11 P.M. on May 19, 2016, when he heard the sound of three gunshots from a small caliber firearm. The shots came from Putnam Circle, a densely populated area that was two streets away from where Sullivan was parked. Officers had been dispatched to the Putnam Circle area on numerous occasions in the past for reports of shootings, recovered weapons in the area, engaged in foot chases of suspects, and been injured during confrontations with suspects. As a result, the Springfield Police Department focused on the Putnam Circle area daily and directed patrols through the area for the purpose of deterrence.
Sullivan was a nineteen-year veteran of the Springfield Police Department and was in charge of the department's "shotspotter" system. This responsibility involved testing the system's functioning and accuracy by listening to audio of gunshots, as well as firing different caliber weapons throughout the city in order to see if the system recognized the sounds as gunshots. Sullivan also (1) had received a firearms certification from the police academy, (2) previously served as a firearms instructor, and (3) engaged in combat situations involving gunfire while serving in the United States military.
Sullivan arrived at Putnam Circle within one minute of hearing the shots and observed the area to be abandoned, except for a minivan driving away. Sullivan found it odd that no one else was driving or walking in the area because it was not uncommon to see foot and car traffic at that time of night, due to the density of Putnam Circle. Sullivan followed the minivan, ran its license plate through his cruiser's mobile data terminal, and learned that (1) the vehicle's inspection was expired and (2) the registered owner, of whom there was a picture, had previously been charged with a firearm offense. There was no evidence regarding the age of the charge.
Sullivan initiated a stop of the minivan and parked his cruiser in a way that blocked the minivan from leaving. Several other officers arrived, and at least three cruisers parked to block the minivan in. As multiple officers approached the minivan with their guns drawn, Sullivan observed that the driver, the defendant, looked like the picture of the registered owner. The defendant was moving around in the front seat and nervously looking at the officers with his eyes wide open. He was removed from the minivan, placed on the ground, and pat frisked. Sullivan looked under the driver's seat of the minivan and immediately observed the handle of a firearm.
The motion judge held that the stop was a valid one based on the minivan's expired inspection. Independent of the traffic violation, however, the motion judge found that Sullivan had reasonable suspicion to stop, detain, and inquire of the defendant based on (1) the defendant's presence in the area from whence gunshots came less than one minute after the shots were fired, (2) the defendant being the only person in the area, (3) the fact that the defendant was driving away, (4) Sullivan's knowledge that the defendant was previously charged with possessing firearms, and (4) the fact that Putnam Circle was a high crime area. Given the nature of the investigation, the motion judge did not view as unreasonable (1) the officers' use of force in blocking the minivan in or approaching with guns drawn or (2) Sullivan's frisk of the interior of the minivan.
Discussion. An exit order is justified during a traffic stop where police have an objectively reasonable suspicion of criminal activity, Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), that is "grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch" (quotations and citation omitted), Commonwealth v. Meneus, 476 Mass. 231, 235 (2017). The motion judge found that Sullivan's exit order to the defendant was lawful because Sullivan reasonably suspected that, moments earlier, the defendant was involved in illegally discharging a firearm in Putnam Circle. In reviewing the motion judge's decision, we accept his unchallenged factual findings, "but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
The firing of gunshots in a neighborhood is a dangerous situation requiring a prompt and thorough police investigation. See, e.g., Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 558 (2002); Commonwealth v Hurd, 29 Mass. App. Ct. 929, 930 (1990). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency" (quotation and citation omitted). Mincey v. Arizona, 437 U.S. 385, 392 (1978). In circumstances where a gun "presents an imminent threat because of shots just fired," Doocey, supra at 557, the reasonable suspicion calculus requires consideration of the following factors, among others: (1) the particular characteristics which distinguish the suspect from others, (2) the proximity of the place of the stop to the place of the suspected criminal activity, (3) the time between the suspected criminal activity and the stop, (4) the conduct of the suspect upon his initial encounter with the police, including evasive behavior, (5) whether there is independent police corroboration of the criminal activity, (6) the geographic boundaries of the area where the suspect may be found, and (7) the nature of the place where the suspected criminal activity occurred. Id. at 554-556.
Here, a specially trained, veteran police officer heard gunshots coming from Putnam Circle and arrived there within one minute. The unusual absence of foot and vehicle traffic in the densely populated area supported Sullivan's suspicion that the gunshots originated there, as residents may have taken shelter. See Commonwealth v. Stoute, 422 Mass. 782, 790 (1996), quoting Terry v. Ohio, 392 U.S. 1, 27 (1968) (we consider "specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience" in determining whether officer acted reasonably in initiating stop). The only person who was in the area was the defendant, "heading away from the scene." Commonwealth v. Ling, 370 Mass. 238, 241 (1976). The defendant had previously been charged with possessing firearms and appeared to be nervously moving around in the vehicle as officers approached. Viewing the circumstances as a whole rather than each factor individually, see Stoute, 422 Mass. at 790, which the defendant would have us do, we see no error in the motion judge's conclusion that Sullivan's actions were supported by a reasonable suspicion that the defendant was involved in illegally discharging a firearm moments earlier.
Although we do not know on this record whether the expired inspection rendered the minivan legally inoperable, see Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 215 (2010), the defendant does not challenge the propriety of the stop on this basis, and, therefore, Sullivan's right to be in a position to make these observations.
The nature of the suspected crime added "an edge" to the reasonable suspicion calculus, Doocey, 56 Mass. App. Ct. at 557, by "demonstrating not only that the suspect being sought was armed and dangerous, but also was ready, willing, and able to use that firepower, having just discharged the weapon." Id. at 553. When added together with the defendant's sole presence in the immediate area and officers' knowledge that Putnam Circle was associated with past shootings, discoveries of weapons, and injuries to officers during confrontations with suspects, we agree with the motion judge that the nature of the suspected crime justified the officers' decisions to use their cruisers to block the minivan from leaving and approach with weapons drawn. "The Constitution does not require officers to gamble with their personal safety" (quotations and citation omitted). Commonwealth v. Santiago, 93 Mass. App. Ct. 792, 795 (2018). The recent firing of a gun provided the "additional 'fear-provoking circumstances'" that were absent in Santiago, upon which the defendant relies, id. at 795, quoting Commonwealth v. Bottari, 395 Mass. 777, 782 (1985), and made the force used by the police in this case reasonable. The blocking of the defendant's minivan and his subsequent removal from that minivan did not transform the traffic stop into an arrest. Finally, the recent firing of a gun also justified Sullivan's "frisk" of the interior area of the van where the defendant had been seen moving around in his seat. See Commonwealth v. Almeida, 373 Mass. 266, 272 (1977).
Judgment affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 13, 2020.