Opinion
21-P-188
01-31-2022
COMMONWEALTH v. EDGAR E., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from his adjudications of delinquency for carrying a firearm without a license, carrying a loaded firearm without a license, and resisting arrest. See G. L. c. 269, § 10 (a ) ; G. L. c. 269, § 10 (n ) ; and G. L. c. 268, § 32B. He contends that the motion judge erred in denying his motion to suppress the firearm, as well as statements made to the police regarding the firearm, on the ground that the officers lacked reasonable suspicion for the stop. We affirm.
The juvenile was found not to be a youthful offender for carrying a firearm without a license, G. L. c. 269, § 10 (a ). He was also found not delinquent for possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ) (1), and disorderly conduct, G. L. c. 272, § 53.
Background. "We recite the facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing." Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007). On the evening of June 5, 2019, Detective Gaito, a member of the Criminal Investigation Division of the Salem Police Department, and three other officers were patrolling the area of Lafayette Street and Palmer Street, also known as "The Point." Detective Gaito and at least two other officers were in plain clothes. While on patrol an officer saw the juvenile leave 15 Palmer Street, a home that was the subject of numerous complaints of drug dealing, and told Detective Gaito and another officer that the juvenile was headed their way. Detective Gaito saw that the juvenile had a hood pulled tight over his head, even though the temperature was seventy degrees, and was looking around in a manner that Detective Gaito associated with counter surveillance.
Although there was testimony that many buildings on Palmer Street are multi-unit dwellings, it is unclear whether 15 Palmer Street was a one-family house or a multi-unit dwelling.
Detective Gaito followed the juvenile on foot around a corner, and saw him sitting in the back seat of a parked car. Another detective recognized the driver of the vehicle as a known heroin user, who did not live in the area. The juvenile remained in the car for approximately twenty to thirty seconds, then got out of the car, which drove away.
Detective Gaito knew it was the same individual because he recognized the black sweatshirt and red sweatpants.
Detective Gaito, in plain clothes, approached the juvenile and asked to speak to him. He did not identify himself as a police officer. The juvenile pushed Detective Gaito and began to run. It was a warm summer evening and there were "a lot of people in the area." Children were riding their bikes and people were out walking. Detective Gaito ordered the juvenile to stop, and once he caught up with the juvenile on the sidewalk in front of 13 Palmer Street, identified himself as a police officer. The juvenile flailed his arms and tried to get away; it took three officers to place him in handcuffs. A crowd gathered on the street and several people were watching from their porches.
When backup arrived, the officers asked the juvenile if he had any weapons before conducting a pat frisk. The juvenile told them he had a "glick" on his right hip, which the officers understood to be slang for a Glock pistol. The officers retrieved the gun from his waistband. An officer read the juvenile his Miranda rights, and asked if the gun was loaded. The juvenile answered that there were five rounds, including one round in the chamber. Questioning stopped when the juvenile asked for the presence of an adult.
Discussion. "When reviewing a motion to suppress, we adopt the factual findings of the motion judge absent clear error." DePeiza, 449 Mass. at 369. However, "[w]e independently determine the correctness of the judge's application of constitutional principles to the facts as found" (citation and quotation omitted). Id. "[T]he motion judge, who heard and saw the witnesses, determines the weight and credibility of the evidence." Commonwealth v. Evelyn, 485 Mass. 691, 696 (2020).
"Before determining whether the actions of the officers in stopping the defendant were constitutionally permissible, we must first identify the moment when the seizure occurred." DePeiza, 449 Mass. at 369. The parties agree, as do we, that Detective Gaito's request to speak with the juvenile was a threshold inquiry, and that a stop in the constitutional sense occurred when Gaito said stop and identified himself as a police officer. See Commonwealth v. Matta, 483 Mass. 357, 360-362 (2019). We therefore turn to whether there was reasonable suspicion for the stop under art. 14 of the Massachusetts Declaration of Rights.
Under the Fourth Amendment to the United States Constitution, a person is seized if, in light of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave. Evelyn, 485 Mass. at 696. "Under art. 14, a seizure occurs when an officer, ‘through words or conduct, objectively communicate[s] that the officer would use his or her police power to coerce [an individual] to stay.’ " Id. at 696-697, quoting Matta, 483 Mass. at 362. "[Article] 14 provides more substantive protection than does the Fourth Amendment in defining the moment of seizure. Accordingly, we analyze the seizure under the more stringent standards of art. 14 with the understanding that, if these standards are satisfied, then so too are those of the Fourth Amendment" (citations and quotations omitted). Evelyn, supra at 697.
"[A]n investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime." DePeiza, 449 Mass. at 371. In this case, there was reasonable suspicion to conduct the stop based on several factors. The juvenile was seen leaving a house known for illegal drug dealing. The house had "a direct connection with the specific location and activity being investigated" (citation omitted). Evelyn, 485 Mass. at 709. Once he left the building, the juvenile appeared to be hiding his face with a hoodie on a warm evening. He quickly got into and out of a car with a known drug user. See Commonwealth v. Stewart, 469 Mass. 257, 261 (2014) (although no transaction was observed, brief meeting in alley known for drug transactions between unknown parties and known drug dealer provided reasonable suspicion for stop). Contrast Commonwealth v. Barreto, 483 Mass. 716, 720-721 (2019) (reasonable suspicion lacking where neither party was known to police, no exchange was observed, and area was not known for drug sales). While the evidence here may or may not have been enough to establish probable cause to arrest the juvenile on drug-related charges, see Stewart, supra at 262-264, it sufficed for purposes of establishing reasonable suspicion of a drug transaction. Id. at 261. "[A] combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief ..." (citation omitted). Matta, 483 Mass. at 365.
Detective Gaito also testified that The Point was a "high crime" area, which he also described as a "bad" area. A general characterization of an entire area as "high crime" does not establish reasonable suspicion that a particular individual is involved in criminal activity at a particular time. See Evelyn, 485 Mass. at 709. Accordingly, we do not rely on this factor. This case was tried before Evelyn, and we anticipate that the type of factual record detailed in Evelyn will be developed in future cases.
Where the detective did not identify himself, and the judge did not explicitly draw an adverse inference from the juvenile's flight, we do not rely on flight as a factor in the reasonable suspicion inquiry. See Matta, 483 Mass. at 270.
The judge also concluded there was probable cause to arrest the juvenile for disorderly conduct, a ruling which is not challenged on appeal. Accordingly, the officers’ subsequent inquiry about and search for firearms constituted a lawful search incident to arrest for that offense. See G. L. c. 276, § 1 ; Commonwealth v. Phifer, 463 Mass. 790, 793-794 (2012). See also Commonwealth v. Dillon D., 448 Mass. 793, 796-797 (2007).
The order denying the juvenile's motion to suppress is affirmed and the adjudications of delinquency are affirmed.
So ordered.
affirmed