Opinion
16-P-1006
06-22-2017
COMMONWEALTH v. LATIMER L., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from the order denying his motion to suppress cocaine found after a police stop and search of his person. While we reject the juvenile's arguments that he was unlawfully seized and pat frisked, we are unable to determine, based on the reasons given by the judge, whether it was clear error to find that the juvenile freely and voluntarily consented to a subsequent search of his wallet. We therefore vacate the order and remand for further proceedings on the motion to suppress.
A single justice of the Supreme Judicial Court allowed the juvenile's motion to file an interlocutory appeal.
Background. We summarize the judge's factual findings, supplemented with undisputed testimony that she implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Weymouth police Detective Robert Gervasi was patrolling in his cruiser at around 3:00 A.M . when he observed the juvenile riding a skateboard on Route 18, traveling approximately twenty inches into the roadway. Concerned because the juvenile was alone, it was dark outside, and Route 18 is a "major thoroughfare," Detective Gervasi pulled over and approached the juvenile on foot. He asked the juvenile for his name, date of birth, and address, and the juvenile provided what he claimed to be responsive information. The juvenile also stated that he was on his way to visit his girl friend. The detective did not tell the juvenile that he was prohibited from leaving or that he was required to answer any questions.
When Detective Gervasi used his portable radio to run a warrant check, he received results indicating "no match and no record," causing him to suspect that the juvenile had provided false information. Furthermore, the detective noticed that the juvenile was "becoming more and more nervous," "appeared to be out of breath," and "kept rambling on about visiting his girlfriend." The detective also observed the juvenile positioning his body away from him and "tucking his right arm tightly to the right side of his body." Based on his training and experience, the detective became concerned that the juvenile was armed.
Detective Gervasi told the juvenile to relax, as he was still "jittery" and "rambling on about his girlfriend," and informed him that he was going to conduct a pat frisk. He began to pat the front pocket of the juvenile's pants when the juvenile abruptly turned his body and swung his right shoulder toward the detective, almost hitting him. At the same time, the juvenile stated, "I didn't give you permission to search me." The detective pushed the juvenile up against the cruiser and continued the patfrisk. He felt a hard object in the juvenile's front pocket and removed it, discovering a cellular telephone battery charger with an electric vape pen attached. There was a brown liquid in the vape pen, which the detective believed to be hashish oil.
Detective Gervasi asked the juvenile if he had identification, and the juvenile responded, "Yes I do. It's in my wallet." Detective Gervasi then asked, "Do you mind if I ... get it out of your wallet," to which the juvenile replied, "No, go ahead." Upon retrieving the wallet from the juvenile's pocket and opening it, the detective found a knotted bag of white powder, which he recognized as cocaine.
After discovering the white powder, Detective Gervasi gave the juvenile his Miranda rights and asked about the substance. The juvenile replied that it was cocaine. See Miranda v. Arizona, 384 U.S. 436 (1966). The judge allowed the juvenile's motion to suppress this statement, finding insufficient proof that the juvenile understood or voluntarily waived his right against self-incrimination. The Commonwealth has not cross-appealed from this ruling.
Discussion. 1. Moment of seizure. The juvenile first challenges the judge's finding that Detective Gervasi's initial inquiry was a consensual encounter, rather than a seizure conducted without reasonable suspicion of criminal conduct. In reviewing this argument, and all others raised in this appeal, "we adopt the factual findings of the motion judge absent clear error [but] ‘independently determine the correctness of the judge's application of constitutional principles to the facts as found.’ " Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007), quoting from Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
"[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). The police do not need a constitutionally adequate basis to simply "approach[ ] an individual and ask[ ] a few questions." Commonwealth v. Cook, 419 Mass. 192, 200 (1994), quoting from Florida v. Bostick, 501 U.S. 429, 434 (1991). Rather, a seizure in the constitutional sense occurs only when, "in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave." Id. at 199.
We reject the juvenile's contention that he was seized when Detective Gervasi exited his cruiser, approached the juvenile, and asked him some basic questions. As the judge found, this initial interaction was "conversational"; the detective did not order the juvenile to stop or to answer his questions, use physical force, tell the juvenile that he could not leave, or block him from leaving. These circumstances were not "sufficiently intimidating" to rise to the level of a seizure. Commonwealth v. Lopez, 451 Mass. 608, 610 (2008). See DePeiza, 449 Mass. at 370 ; Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228–229 (2006).
Our conclusion is unaffected by J.D.B. v. North Carolina, 564 U.S. 261 (2011), in which the United States Supreme Court held that the age of a child is a relevant factor in the Miranda custody analysis. Relying on J.D.B., the juvenile urges us to assess his interaction with Detective Gervasi through the eyes of a "reasonable juvenile," instead of a "reasonable person." The juvenile cites no case extending J.D.B. to the Fourth Amendment context, but, even assuming such an extension would be appropriate, J.D.B. still would not aid the juvenile in the circumstances of this case. The rule announced in J.D.B. applies only "so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer." 564 U.S. at 277. There is no evidence that Detective Gervasi was aware of the juvenile's age when he questioned him or that it would have been objectively apparent that the juvenile was under the age of majority. The juvenile's reliance on J.D.B. is thus unavailing.
As the parties agree, the juvenile was seventeen years old at the time of the encounter.
Furthermore, the United States Supreme Court was careful to note in J.D.B. that a child's age may not "be a determinative, or even a significant, factor in every case." Ibid. The Court then cited as an example Yarborough v. Alvarado, 541 U.S. 762 (2004), in which age was deemed an insignificant factor because the defendant was almost eighteen years old when the police questioned him. See J.D.B., 564 U.S. at 277. Likewise here, given the casual and conversational nature of the initial encounter and the absence of any assertive conduct by Detective Gervasi, we fail to see how the fact that the juvenile was a few months shy of majority makes any material difference in the analysis of whether he would have felt free to leave. See Commonwealth v. Isaiah I., 450 Mass. 818, 822 (2008) (officer did not seize juvenile by following him into store); Commonwealth v. Gunther G., 45 Mass. App. Ct. 116, 117–118 (1998) (officer did not seize juvenile by driving up in marked cruiser, asking juvenile to talk with him, then approaching juvenile on foot and asking a second time to talk with him). Because the initial encounter was therefore consensual, it did not need to be justified by reasonable suspicion of criminal conduct.
The only case the juvenile cites in support of his argument, In re Steven O., 188 Ariz. 28 (1997), does not aid him. That case involved a situation where the police "physically restrained" the juvenile when he attempted to walk away. Id. at 30.
2. Reasonable suspicion for patfrisk. The juvenile argues in the alternative that Detective Gervasi did not have reasonable suspicion to conduct the patfrisk. There is no dispute that the juvenile was seized once the detective announced his intention to pat frisk him. See Commonwealth v. Narcisse, 457 Mass. 1, 6 (2010). We must therefore determine whether the seizure was constitutionally permissible.
Police may "escalate a consensual encounter into a protective frisk" based on "reasonable suspicion that an individual has committed, is committing, or is about to commit a crime and is armed and dangerous." Id. at 9. An officer's "reasonable belief that an individual has a weapon and appears inclined to use it" satisfies both prongs of the Terry analysis because "[w]hen an individual appears to be ready to commit violence, either against police officers or bystanders, it is reasonable to believe that he is ‘about to commit a crime.’ " Ibid., quoting from Commonwealth v. Wilson, 441 Mass. 390, 394 (2004).
See Terry v. Ohio, 392 U.S. 1, 30 (1968).
Here, the evidence supports the judge's finding that Detective Gervasi conducted the patfrisk out of reasonable concern for his own safety. Reasonable suspicion may arise from "[s]trange, furtive, or suspicious behavior or movements [that] infuse otherwise innocent activity with an incriminating aspect." Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005). We agree with the judge that Detective Gervasi was warranted in believing that the juvenile was armed and dangerous based on his nervous behavior and "conduct of holding his arm tight to his front pocket and the positioning of himself away from the [d]etective." A protective patfrisk was thus justified. See id. at 783 ("defendant's reaching for his waistband at the same time he walked away ... justified the officer's belief that his safety ... was at risk").
3. Voluntariness of consent. Finally, the juvenile argues that the judge erred in finding that he voluntarily consented to the search of his wallet. "When the police rely on consent to justify a warrantless [search], ... the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ " Commonwealth v. Carr, 458 Mass. 295, 299 (2010), quoting from Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). To be free and voluntary, the consent must be "unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’ " Id. at 302, quoting from Commonwealth v. Walker, 370 Mass. 548, 555 (1976). Because this is a question of fact dependent on the circumstances of each case, we review a judge's finding only for clear error, keeping in mind that "[t]he judge was in the best position to assess the weight and credibility of the testimony given at the motion hearing." Id. at 303.
The juvenile did not raise the consent issue in his motion to suppress, which focused on whether the detective had reasonable suspicion to conduct the patfrisk. The issue was raised instead by the Commonwealth in its opposition to the motion. Furthermore, at the suppression hearing, the juvenile did not counter the Commonwealth's argument that "the juvenile freely and voluntarily told Detective Gervasi to go ahead and retrieve the identification from his wallet." "When a defendant attempts to raise a new issue after the completion of the hearing's evidentiary phase, the evidence on that issue is likely to be ‘scant.’ " Commonwealth v. Silva, 440 Mass. 772, 781 (2004), quoting from Commonwealth v. Rivera, 429 Mass. 620, 623 (1999). Such is the case here. Nonetheless, because the consent issue was raised by the Commonwealth and decided by the judge, we deem it preserved.
In this case we are unable to determine from the judge's reasoning whether her finding of voluntariness was clearly erroneous. Initially, the judge issued a more summary order, in which she ruled that "all items seized from the juvenile following a pat frisk of his person and the opening of his wallet need not be suppressed as evidence for the reasons set forth with particularity in the Commonwealth's [m]emorandum of [l]aw." In so ruling, the judge adopted the representation in the Commonwealth's memorandum that, when the detective asked the juvenile for consent to search, he "did not act in an intimidating manner or exhibit any overt show of authority." We agree with the juvenile, however, that this representation was inaccurate given that, at the time, the detective "was pinning the [j]uvenile against a police cruiser."
At the juvenile's request, the judge then issued a more detailed order with findings of fact and conclusions of law. In her findings the judge acknowledged that the detective had "pushed the juvenile up against the cruiser" in the course of conducting the patfrisk. But in her later discussion of voluntariness, the judge did not address the import of that finding, nor did she identify as a relevant factor "whether the defendant was in custody when consent was given." Id. at 302. Instead, after reciting the relevant law, the judge reduced her analysis to the following sentence: "Based upon the totality of the circumstances of the instant case, the juvenile clearly consented to the officer retrieving the juvenile's wallet from his pants pocket and opening it."
Carr sets forth the following, nonexclusive list of factors relevant to voluntariness: "the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given." Ibid.
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We acknowledge that the sparseness of the judge's analysis may have resulted from the juvenile's failure to counter, in any meaningful way, the Commonwealth's argument that his consent was clearly voluntary. Nonetheless, without further explanation from the judge, we cannot test her finding of voluntariness for clear error. We therefore vacate the order denying the motion to suppress and remand the case to the judge for further detailed findings in support of her decision. See Commonwealth v. Isaiah I., 448 Mass. 334, 338–339 (2007) ; Commonwealth v. Grassie, 476 Mass. 202, 216 (2017).
So ordered.
Vacated and remanded.