Opinion
15-P-583
04-25-2016
COMMONWEALTH v. KENTON K., a juvenile.
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 juvenile appeals from adjudications of delinquency in the Juvenile Court on charges of carrying a loaded firearm without a license, G. L. c. 269, § 10(n), and possessing a firearm without an FID card, G. L. c. 269, § 10(a). The juvenile contests the denial of his motion to suppress the firearm, which was seized after a street encounter. Because we conclude that the officers did not have adequate justification for the stop and frisk, we reverse.
Background. "We summarize the motion judge's findings of fact, with minor supplementation from uncontested testimony, noting that all of his findings are supported by the evidence he found credible." Commonwealth v. Martin, 457 Mass. 14, 15 (2010). See Commonwealth v. Narcisse, 457 Mass. 1, 2-3 (2010).
Around 7:20 P.M., on October 10, 2010, Boston police Officer Brian Johnson was patrolling the Mission Hill section of Boston in his unmarked cruiser with two other officers when he saw the juvenile. Johnson, a member of the "Youth Violence Strike Force," knew the juvenile from the police department's gang database and a previous face-to-face interaction. Johnson drove past the juvenile, reversed direction, and began driving slowly next to him. Johnson made eye contact with the juvenile, who put his cellular telephone to his ear for a few seconds, then moved his cellular telephone down and away from his ear. The juvenile repeated this action before approaching three individuals on the street, turning his back to the officers, and conversing with the group.
Johnson and the two plain-clothed officers with him approached the group with their badges displayed. After making eye contact with Johnson, the juvenile appeared nervous. Johnson then asked, "[W]hat's up," to which the juvenile responded, "[N]othing." The juvenile was nonresponsive and averted his eyes when Johnson asked him if he had any weapons on his person. Johnson then informed the juvenile he was going to pat him down, and again received no response. While pat frisking the juvenile, Johnson found a firearm. The juvenile was then arrested and taken into custody.
The motion judge concluded that three essential facts, taken together, justified the pat frisk: "1) the police officers were patrolling a high crime area, 2) the juvenile appeared visibly nervous, and 3) one of the officers had known the juvenile to be an active Mission Hill gang member."
Discussion. "While, absent clear error, we adopt the factual findings of the motion judge, we 'independently determine the correctness of the judge's application of constitutional principles to the facts as found.'" Commonwealth v. Martin, supra at 18, quoting from Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). "It is the Commonwealth's burden to demonstrate that the police officers' stop and frisk of the juvenile was within constitutional limits." Ibid. (quotation omitted). "[A] 'stop and frisk [is] constitutionally permissible if two conditions are met. First, . . . the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.'" Narcisse, supra at 7, quoting from Arizona v. Johnson, 555 U.S. 323, 326-327 (2009). "[P]olice officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous." Id. at 9. "The facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his acts." Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).
The three factors present here, though all properly considered in an officer's determination whether to conduct a stop and frisk, did not provide sufficient justification. First, "the [juvenile]'s presence in a high crime area and the heightened concern about retaliatory violence . . . were not enough to suggest that the [juvenile] was engaged in criminal activity or that he was armed and dangerous." Narcisse, 457 Mass. at 13. "[S]o-called high crime areas are inhabited and frequented by many law-abiding citizens who are entitled to be protected against being stopped and frisked just because of the neighborhood where they live, work, or visit." Commonwealth v. Johnson, 454 Mass. 159, 163 (2009). Even if the juvenile was affiliated with a gang that was involved in a recent shooting in the area, his suspected gang membership "was, at best, a tenuous link." Narcisse, supra at 12. Though officers had previously made firearms-related arrests in the area, and there had been an increase in violent crimes, no evidence connected the juvenile himself with the crimes, nor did his actions necessarily suggest possession of a weapon.
Second, the juvenile's perceived nervous behavior did not warrant the conclusion that he was armed, dangerous, or likely to engage in criminal behavior. "Nervousness is a common and entirely natural reaction to police presence." Martin, 457 Mass. at 21 (quotations and citations omitted). The fact that the juvenile became nervous when being followed, and then approached, by a group of police officers, by itself or even in conjunction with the area and his suspected gang associations, did not justify a stop or frisk. Further, the juvenile's failure to respond to Johnson's question about having a weapon bears little weight when assessing the stop and frisk's reasonableness. "Because it was within the [juvenile's] right to ignore questions posed by the officers, his refusal to answer [the officer's] question concerning whether he had a weapon cannot provide reasonable suspicion for his seizure." See id. at 21-22.
Finally, though it justifiably is one of the factors that should be considered by an officer in deciding to conduct a pat frisk, "gang membership alone does not provide reasonable suspicion that an individual is a threat to the safety of an officer or another." Commonwealth v. Elysse, 77 Mass. App. Ct. 833, 841 (2010). Here, even in light of his suspected gang membership, the juvenile's conduct and the surrounding circumstances known to the officers did not amount to a reasonable suspicion that he was engaged in criminal activity at the time of the encounter. See ibid.
"In this case, nothing the [juvenile] said or did justified an escalation of the consensual encounter. The [juvenile] did not appear to possess a weapon or make any gestures indicating that he may have been concealing one that he was inclined to use." Martin, supra at 20. Contrast Commonwealth v. DePeiza, 449 Mass. at 371 (defendant "was walking with his right arm held stiff and straight against his body, which, based on the officer's training at the police academy, suggested he was carrying a concealed firearm"). "In sum, the [juvenile] did not appear to be engaged in criminal activity, let alone likely to lash out with a weapon." Martin, supra at 22.
Conclusion. The adjudications of delinquency are vacated and the findings are set aside. The order denying the motion to suppress is reversed, and a new order shall enter allowing the motion. The case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Hanlon, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 25, 2016.