Opinion
18-P-238
04-12-2019
COMMONWEALTH v. DAIZANAI DEVOE.
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 was convicted of unlawful possession of a firearm without a license, pursuant to G. L. c. 269, § 10 (a). A Boston Municipal Court judge denied the defendant's motion to suppress the firearm, which was found during a search of her bag, and her statements to officers following the search. On appeal, the defendant principally contends that the motion judge erred in denying her motion to suppress because the search was unlawful. We agree. Accordingly, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
Background. We summarize the facts as found by the motion judge, supplemented by the uncontroverted testimony from the motion hearing. See Commonwealth v. Cordero, 477 Mass. 237, 238 (2017). On June 4, 2014, at around 4 P.M., Officer Michael Paradis of the Boston Police Department received information from an anonymous source that there was a firearm in a blue bag belonging to a female who was sitting near a group of people playing basketball in Norfolk Park in Mattapan. Officer Paradis arrived at the park in plain clothes in an unmarked cruiser, along with Officers Tom Bernier and John Rodriguez.
The Commonwealth opposed the defendant's motion to disclose the identity of the tipster, and the judge denied the motion. The Commonwealth did not rely on the tipster's veracity or basis of knowledge in connection with its opposition to the defendant's motion. See Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 103-104 (2016). As the motion judge found, prior to the canine confirming the presence of a firearm in the bag, all of the information given by the anonymous informant was information that could be gleaned by anyone in the vicinity at that time.
Officer Paradis testified that he had previously responded to "shots fired, shootings in that immediate area." The motion judge made no findings whether the park was in a high-crime area.
The defendant was sitting on a wall adjacent to a basketball court where several others were playing basketball. As the officers arrived, some people left the area; the officers did not stop them. A blue bag was next to the defendant. Officer Paradis approached the defendant and asked if the bag belonged to her. She confirmed that it did. Officer Paradis walked away from her and called for a canine unit.
In the five minutes that it took for the canine unit to arrive, Darnell Pierre, who officers recognized as "a Wilson street gang member," approached the defendant and asked for "his stuff back." The defendant "carefully" lifted a book that was in the bag and gave Pierre a "cell phone and ID." The officers did nothing to interfere with the defendant's interaction with Pierre, the defendant's handling of her bag, or to prevent Pierre from leaving the park.
At some point after the defendant confirmed that the bag belonged to her, she "stood up and walked up by the fence . . . at the front of the park and left her bag." By this time, the group that had been playing basketball "were all up in . . . that same area . . . [a]nd other officers were speaking with them." The motion judge made no findings as to how far away the defendant stood from her bag, though Officer Paradis testified that the group (that had been playing basketball prior to his arrival) moved about ten or fifteen feet away from the court. Officer Paradis testified that "[e]specially if there's a canine coming. You kind of don't want to be near it." The motion judge found that no one specifically instructed the defendant to move or otherwise impeded her movement in any way.
It is not clear from the hearing testimony whether the defendant left her bag before or after she returned Pierre's belongings to him.
Officer Paradis testified that, at this time, in addition to Officers Rodriguez and Bernier, other officers had showed up on the scene.
The canine unit arrived, and after sniffing several bags, the canine gave a positive indication beside the blue bag. The dog was trained to indicate explosives, including black powder explosive materials, ammunition, and firearms. No information was provided about the dog's reliability record during training, though it had been certified by several agencies after attending a ten-week training course from which it had recently graduated. This was the dog's first time in the field.
After the dog alerted, Officer Paradis searched the bag. In it, he found a white T-shirt covering a sock that contained a firearm. Officer Rodriguez read the defendant her Miranda rights and asked to see her license to carry a firearm. The defendant replied that she did not have one. The officer then asked the defendant if she knew what was in her bag. She stated that she did, but that she did not put the firearm there.
As set forth supra, the motion judge denied the defendant's motion to suppress. A first jury trial ended in a mistrial. Thereafter, a second jury found the defendant guilty of unlawful possession of a firearm without a license and not guilty of the charges of possession of ammunition without an FID card and possession of a loaded firearm. The defendant was sentenced to two years in a house of correction, with eighteen months committed and the balance suspended, as well as a term of probation for three years. This appeal followed.
Discussion. 1. Motion to suppress. "When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error." Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011), citing Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009). This court makes an "independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Tremblay, supra, citing Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
2. Initial inquiry. We agree with the motion judge that Officer Paradis's initial question to the defendant as to whether the blue bag belonged to her was not a seizure. "[T]he police do not effect a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe he was not free to turn his back on his interrogator and walk away." Commonwealth v. Lopez, 451 Mass. 608, 611 (2008), quoting Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). There is ample support in the record for the motion judge's finding that there was no show of authority when Officer Paradis approached the defendant in plain clothes and asked if the blue bag belonged to her. Nothing in the interaction suggests that a reasonable person would not feel free to leave. See Lopez, supra at 611-612.
3. Canine sniff. We have not had occasion to address the issue whether a canine sniff of a bag in a public place to determine whether the bag contains a firearm is a "search" under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. But in the context of a narcotics sniffing canine, the United States Supreme Court twice has held that a canine sniff for narcotics is not a search within the meaning of the Fourth Amendment. See Illinois v. Caballes, 543 U.S. 405, 410 (2005); United States v. Place, 462 U.S. 696, 707 (1983). In each, the Court relied on the limited nature of the search and that there was no reasonable expectation of privacy in the odor of illicit narcotics. See Caballes, supra; Place, supra. See also United States v. Jacobsen, 466 U.S. 109, 123 (1984) (subjecting white powdery substance to field test that can only determine whether substance is or is not cocaine and "no other arguably 'private' fact" not "search" because it "compromises no legitimate privacy interest"). Similarly, the Supreme Judicial Court has twice held that a narcotics sniffing canine is not a search under art. 14. See Commonwealth v. Mateo-German, 453 Mass. 838, 845 (2009); Commonwealth v. Feyenord, 445 Mass. 72, 82-83 (2005). In each, the court reasoned that there was no reasonable expectation of privacy in the odor of the illicit drugs emanating from the vehicle. See Mateo-German, supra; Feyenord, supra.
These cases do not directly answer the question whether a firearm dog sniff in this case is a search because, unlike the sniff that reveals only the carrying of illicit narcotics, which the courts reasoned are contraband, the firearm dog sniff reveals potentially noncriminal activity because carrying a firearm and even carrying a concealed firearm is not always a crime. See Commonwealt v. Alvarado, 423 Mass. 266, 270 (1996) ("Carrying a weapon concealed in a towel, a bag, or a knapsack, for example, however, is not a crime in this State"); Commonwealth v. Couture, 407 Mass. 178, 181 (1990); Commonwealth v. Toole, 389 Mass. 159, 163-164 (1983). See also United States v. Centeno-Gonzalez, 177 F. Supp. 3d 721, 731 (D.P.R. 2016) (recognizing difference between narcotics sniffing and firearm sniffing canines in that "[f]irearms, unlike narcotics, are not always contraband"). Ultimately, we need not resolve this issue because even if we assume the canine sniff for a firearm is not a search, as set forth infra, Officer Paradis's physical entry into the defendant's bag was a warrantless search, which the Commonwealth failed to show was permissible under an exception to the warrant requirement. See Commonwealth v. Forde, 367 Mass. 798, 800 (1975).
The record is void of any indication as to the reliability of the canine used in this case. The defendant does not raise any claim, however, that the dog was not reliable and so we need not address that issue.
4. Physical search of defendant's bag. There can be no dispute that when Officer Paradis put his hand in the defendant's bag, a search in the constitutional sense occurred. It is the Commonwealth's burden to show that there was probable cause to support the search and that it falls into one of the narrow exceptions to the warrant requirement. See Forde, 367 Mass. at 800. Absent a warrant, the search is "presumptively unreasonable" under both the Fourth Amendment and art. 14. Commonwealth v. Craan, 469 Mass. 24, 28 (2014).
The Commonwealth maintains that reasonable suspicion, and not probable cause, was required when Officer Paradis searched the defendant's bag. We disagree. This was not a patfrisk. See Terry v. Ohio, 392 U.S. 1, 49 (1968). Instead, there was a full-blown search of the contents of the defendant's bag. See Alvarado, 423 Mass. at 268-269.
5. Probable cause. a. Unlawful possession. The Commonwealth first contends that the warrantless search was justified because there was probable cause that the defendant was committing the offense of possessing a firearm without a license. Carrying a concealed firearm alone, the Supreme Judicial Court has held, is insufficient to rise to the level of probable cause that the defendant lacks a license to carry the concealed weapon. See Couture, 407 Mass. at 181 ("A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun"); Toole, 389 Mass. at 163-164 (ammunition and empty holster found on defendant did not permit warrantless search of vehicle because no showing of probable cause to believe weapon in vehicle was illegally carried).
The Commonwealth contends that the anonymous tipster was shown to be a "reliable" source after the dog alerted. Significantly, there was little evidence of the dog's reliability and this was the dog's first field test. Even if we assume the dog's reliability and that it confirmed the reliability of the tipster, the evidence pointed only towards a possible concealed firearm in a park, which is not a crime. See Alvarado, 423 Mass. at 269. See also Toole, 389 Mass. at 163-164. The Commonwealth posits that the anonymous tip suggests that the firearm was openly displayed. This is pure conjecture, unsupported by the tip itself, the canine's alert, or anything else in the record before the motion judge.
The Commonwealth suggests that probable cause of unlawful possession existed based on (1) the fact that the park was in a high-crime area, (2) the defendant's association with a known gang member, and (3) the defendant's handling of the bag "carefully." As the Supreme Judicial Court has stated, "many honest, law-abiding citizens live and work in high-crime areas . . . [and] are entitled to the protections of the Federal and State Constitutions, despite the character of the area." Cordero, 477 Mass. at 245, quoting Gomes, 453 Mass. at 512. Moreover, while officers need not blind themselves to an individual's gang affiliation, here, at most, the officers saw that the defendant knew a gang member; notably, the officers, who had significant knowledge of the area due to their service on the gang task force, did not testify that the defendant herself was a gang member or even suspected of being one. Cf. Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010). Furthermore, the fact that the defendant handled her bag "carefully" is not the type of furtive gesture that would indicate criminal activity. See Commonwealth v. Holley, 52 Mass. App. Ct. 659, 664-665 (2001) (reasonable suspicion did not exist to justify patfrisk when, during routine traffic stop in high-crime area, defendant made ambiguous gesture officers deemed furtive).
b. Improperly stored firearm. Next, the Commonwealth contends that there was probable cause to believe the defendant was committing the offense of improperly storing the firearm, in violation of G. L. c. 140, § 131L. Although the Commonwealth raises this theory for the first time on appeal, we may consider it and affirm on any ground apparent from record. See Commonwealth v. Stephens, 451 Mass. 370, 386 n.19 (2006) (denial of motion to suppress may be affirmed on any ground supported by record). The improper storage statute requires a firearm to be secured within a locked container unless it is "carried by or under the control of the owner or other lawfully authorized user." G. L. c. 140, § 131L. Because there was no indication that any firearm within the bag was unsecured, liability under this theory must be premised upon the defendant not having the firearm under her control.
However, the judge found that the defendant had the blue bag next to her when the police initially approached. The judge also found that, within the short interval between the time that the police spoke with her about the bag and the time that the canine arrived at the scene, the defendant "stood up . . . and walk[ed] by a fence leaving her bag." The judge made no findings concerning the distance the defendant walked away from the bag or the length of time the defendant remained away. Neither does the record reveal this critical data. See Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319-320 (2011) (question whether firearm is sufficiently under "control" for purposes of firearms storage statute depends on circumstances including "its proximity to its authorized user or owner, and that person's ability to reach immediately the gun"). On this record, the Commonwealth has not met its burden to prove that there was probable cause to believe the defendant was committing the offense of failing to properly store a firearm.
The Commonwealth also does not identify what, if any, exception to the warrant requirement it contends applies. There was no testimony that the officers feared for their safety. And, the Commonwealth does not rely on any claim of exigent circumstances based on the fact that the canine was capable of alerting to explosives other than the firearm.
6. Harmless error. When evidence was admitted at trial because a defendant's motion was wrongfully denied, this court looks to whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Monroe, 472 Mass. 461, 472-473 (2015). "Under this standard, the burden shifts to the Commonwealth . . . to show that the wrongfully admitted evidence did not contribute to the verdicts." Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 559-560 (2015). Here, the Commonwealth's case relied primarily on the evidence that should have been suppressed. Accordingly, the admission of the evidence "was not harmless beyond a reasonable doubt." Commonwealth v. Stewart, 469 Mass. 257, 265 (2014). Because the defendant's motion to suppress should have been allowed, and the admission of the firearm was not harmless beyond a reasonable doubt, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
So ordered.
By the Court (Maldonado, Singh & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 12, 2019.