Opinion
16-P-597
05-24-2017
COMMONWEALTH v. Sir David O. DODSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a Boston Municipal Court judge allowing the defendant's motion to suppress. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We affirm.
Background. On June 23, 2015, around 7:15 P.M. , Boston police Officers Evan Nunez and Peter Fontanez were on patrol in plainclothes in an unmarked police cruiser in the Eagle Hill area of East Boston. As they drove through a housing development, from a distance of fifty to eighty feet they observed a car lawfully parked in a "garage." Two men occupied the front seat, facing the river. The officers determined that the driver (but not the passenger) was smoking a marijuana cigar, or "blunt."
"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error." Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "Although the judge's conclusions of law are also ‘entitled to substantial deference,’ we independently review ‘legal conclusion[s] ... where [they are] of constitutional dimensions.’ " Commonwealth v. Ira I., 439 Mass. 805, 812 (2003), quoting from Commonwealth v. Jones, 375 Mass. 349, 354 (1978).
Nunez and Fontanez exited their cruiser and approached the car on foot, Fontanez on the driver's side and Nunez on the passenger's side. When they were within five to ten feet of the car, Fontanez announced "Boston PD," and both officers displayed their badges. "They approached by straddling the vehicle in a more aggressive than non-aggressive manner." The defendant occupied the front passenger seat. Neither Nunez nor Fontanez recognized either occupant from previous encounters.
The driver immediately handed the blunt to Fontanez, who "engaged [him] in conversation." Seeing this, but "without knowing what was transpiring with the [driver]," Nunez asked the defendant, in an "investigatory tone" whether "he had ‘anything’ else on him without engag[ing] in any ... innocent preliminary conversation." The defendant said that he had a bag of marijuana in his pocket and reached to retrieve it. Nunez asked the defendant to stop, remove his hand from his pocket, and step out of the vehicle. The defendant complied. Nunez searched the defendant and found "contraband including cocaine, pills and marijuana."
The Commonwealth contends that this finding is clearly erroneous, see Commonwealth v. Cawthron, 90 Mass. App. Ct. 828, 832-833 (2017), because Nunez actually asked the defendant whether he had any more marijuana, not whether he had "anything else" on him. The exact wording of Nunez's question does not affect our analysis.
The Commonwealth contends that this finding was also clearly erroneous because the judge failed to mention that immediately before the exit order, the defendant said, "You can check." Again, this factual dispute has no effect on our analysis.
The judge concluded that "there was a show of authority upon the [officers'] approach," and that after the initial questioning, "the operator and the [d]efendant passenger would be warranted in believing they were not free to leave the scene." Because the officers lacked reasonable suspicion of criminal activity, the judge suppressed the items seized from the defendant in the subsequent search of his person.
Discussion. "[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification." Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). "A person has been seized by a police officer ‘if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ " Commonwealth v. Lopez, 451 Mass. 608, 611 (2008), quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985). "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 560 (1989), quoting from UnitedStates v. Mendenhall, 446 U.S. 544, 554 (1980).
The defendant was stopped in the constitutional sense when the officers approached the car and Nunez asked if he had any more marijuana, or anything else, on him. The two officers "straddl[ed] the vehicle in a more aggressive than non-aggressive manner," announced "Boston PD," and displayed their badges. See Commonwealth v. Lyles, 453 Mass. 811, 815 (2009) (that two plain-clothed officers were armed, displayed their badges, and identified themselves as police contributed to determination that defendant was seized); Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 372 (2010) ("officer leav[ing] his cruiser during an encounter is ... [a] factor in considering whether the requisite show of authority has occurred"). Nunez questioned the defendant using an "investigatory tone." See Commonwealth v. Evans, 87 Mass. App. Ct. 687, 692 (2015) (where questioning was "pointed and accusatory in tenor," reasonable person would have felt compelled to answer). The defendant and the driver were both in the confined space of a car, and not, for example, on a sidewalk, where they would have more freedom to walk away. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, 387-388 (1995). At the point Nunez began questioning the defendant, a reasonable person in the defendant's position would not have believed that he was free to leave without submitting to Nunez's questioning. See Commonwealth v. Dasilva, 56 Mass. App. Ct. 220, 224 (2002).
We next consider whether the seizure of the defendant was based on "specific, articulable facts and reasonable inferences therefrom," that the defendant "was committing, or was about to commit a crime." Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). The car was parked legally, neither officer recognized the occupants from previous encounters with law enforcement, and neither occupant made any furtive gestures. The driver's possession of a single marijuana cigar did not provide a reasonable suspicion of criminal activity by the defendant. See Commonwealth v. Cruz, 459 Mass. 459, 472 (2011).
Even assuming, as the Commonwealth argues, that the observation of the driver smoking marijuana supplied probable cause to issue him a civil citation (the driver having already relinquished the blunt), see Commonwealth v. Rodriguez, 472 Mass. 767, 778 (2015), the officers could detain the driver and the defendant for that purpose and no more. The defendant, "in the absence of his own individual misbehavior or suspicious conduct, could expect that the formalities involved in the [issuance of the citation] would take place solely between the driver and the [officers]." Commonwealth v. Torres, 424 Mass. 153, 157 (1997). See Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 535 (1998) ("[i]nterrogation of passengers in a car stopped for a traffic offense, without an objective basis for suspicion that the passenger is involved in criminal activity, slips into the dragnet category of questioning that art. 14 prohibits"). We agree with the judge that the officers had no justification for seizing the defendant.
The judge observed that although the officers may have had justification to investigate the driver's possession of marijuana "and perhaps, if appropriate, write a civil citation against him," their conduct "exceeded this purpose because the officers showed their authority due to the manner of their approach and they acted with such authority at the time they preliminar[il]y engaged both occupants."
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Order allowing motion to suppress affirmed.