Opinion
16-P-717
06-30-2017
COMMONWEALTH v. Leroy GALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After his motion to suppress evidence was denied, the defendant waived his right to a trial by jury and was convicted of both carrying a firearm without a license and carrying a loaded firearm without a license. He appeals his convictions on the grounds that his motion to suppress was improperly denied. We affirm.
Background. At the hearing on the motion to suppress, the judge heard the following evidence. Two Boston police officers arrived at the Charlestown Bunker Hill housing development around noon on October 4, 2014. The officers, dressed in plain clothes, were patrolling this housing development as the result of a recent uptick in firearm and gang activity in the area. While driving through the development, which consists of about twenty three-story brick apartment buildings, the officers observed six people standing near the entrance of one of the buildings. After the officers turned the corner, the defendant was seen entering the front entrance of that building. The officers exited their vehicle and spoke to the five people remaining outside the building.
Officer Johnson proceeded to enter the back door of the building after finding the front door to be locked, and viewed the defendant standing in a common hallway looking out the front window toward the area the officers had just been. Officer Johnson then asked the defendant, "Can I talk to you for a minute?" The defendant turned and looked at him before running up the stairs with his left arm moving in a natural running motion while his right hand remained pressed to his right side. Recognizing this behavior as consistent with securing an un-holstered firearm, Officer Johnson pursued the defendant while never announcing himself as a police officer or removing his firearm.
Officer Johnson caught up to the defendant on the second floor and grabbed his shirt with one hand while feeling what he believed to be a firearm with his other hand. The defendant shook free from the officer's hold before eventually being caught again while trying to enter an apartment. The defendant was subdued and arrested, and a loaded firearm was recovered from his waist.
During the motion to suppress, the defendant argued that his initial stop was unsupported by probable cause or reasonable suspicion and the discovery of the firearm and subsequent statements made by the defendant directly stemmed from a violation of the Fourth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The motion was denied, as the judge determined that Officer Johnson had a reasonable basis to believe that the defendant was illegally carrying a firearm when he first seized him. The judge ruled that Officer Johnson's initial question, "Can I talk to you for a minute?" did not constitute a seizure. The judge cited the defendant's sudden flight, his right hand remaining at his waist while running, his attempt to shield his right side from officers when they first pulled into the development, and the defendant's appearance as around eighteen years old as factors that suggested that he possessed a firearm and that the possession was illegal. As such, when the officer finally seized the defendant by grabbing his shirt, he had reasonable suspicion that the defendant was armed and was justified in conducting a protective patfrisk.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S. Ct. 443 (2012). We "leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).
Having reviewed the record and the judge's findings, bearing in mind the judge's note that he found Officer Johnson to be "highly credible" and adopted all of his testimony, we conclude there is no reason to disturb the judge's findings of fact.
As such, we independently review the judge's ultimate decision based on the facts that he adopted. The defendant argues that his motion to suppress should have been allowed because Officer Johnson's act of pursuing the defendant up the stairs constituted a seizure, and at the time of that seizure the officer lacked reasonable suspicion that the defendant was armed and dangerous. We disagree.
We employ an objective standard to determine the moment a person has been seized: "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). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred." Commonwealth v. Franklin, 456 Mass. 818, 820-821 (2010), quoting from Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
The defendant argues that the police officer's pursuit of him after asking to speak with him amounted to a seizure because that pursuit was a show of authority and made it clear to the defendant that he was no longer free to leave. We disagree. There certainly was no seizure when the officer asked the defendant, "Can I talk to you for a minute?" See Lopez, supra ("[N]ot every encounter between a law enforcement official and a member of the public constitutes [a seizure]"). Furthermore, the officer never ordered the defendant to stop or removed his firearm while pursuing the defendant after he fled. As such, there was no "show of authority" that constituted a seizure. See Franklin, supra at 822 (police may follow a person acting suspiciously without it constituting a seizure). We agree with the judge, therefore, that no seizure took place until the officer grabbed the defendant's shirt.
We now turn to whether Officer Johnson's seizure of the defendant and subsequent search of his person was warranted. "Where a police officer has a reasonable, articulable suspicion
that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). This suspicion must be based on articulable facts and experience, more than a "mere hunch." Ibid. In situations such as this where a protective patfrisk is conducted, a further threshold must be met: officers must "reasonably believe the subject to be armed and dangerous." Commonwealth v. DePeiza, 449 Mass. 367, 374 (2007).
We conclude that Officer Johnson was justified in stopping and pat frisking the defendant. The defendant's nervous behavior, sudden flight, clutching of his right hand to his waist while running, attempt to conceal his right side from the officers when they pulled into the development, and youthful appearance (rendering any possibility of legal gun ownership highly unlikely) were sufficient to justify a reasonable suspicion that he was illegally carrying a firearm. See id. at 373. See also Commonwealth v. Warren, 475 Mass. 530, 540 (2016) ("We do not eliminate flight as a factor in the reasonable suspicion analysis"). As the crime the officer was reasonably suspicious of involved a firearm, the subsequent patfrisk was also reasonable.
Judgments affirmed.