Opinion
16–P–1271
06-26-2017
COMMONWEALTH v. Hakeem MARTIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant is charged with unlawful possession of a firearm, G. L. c. 269, § 10(a ), unlawful possession of ammunition, G. L. c. 269, § 10(h ), and unlawful possession of a loaded firearm, G. L. c. 269, § 10(n ). Following an evidentiary hearing, a judge in the Boston Municipal Court allowed the defendant's motion to suppress the firearm and ammunition, reasoning that police officers lacked reasonable suspicion to conduct the patfrisk of the defendant that resulted in the seizure of the loaded firearm. In this interlocutory appeal, the Commonwealth argues that the motion judge erred in concluding that the officers did not have reasonable grounds to pat frisk the defendant. For the reasons that follow, we conclude that specific and articulable facts supported a reasonable suspicion that the defendant was committing a crime and presented a danger to the officers. Accordingly, we reverse the order allowing the motion to suppress.
Background. "We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing." Commonwealth v. Matos, 78 Mass. App. Ct. 156, 157 (2010), quoting from Commonwealth v. Washington, 449 Mass. 476, 477 (2007). At approximately 2:30 P.M. on September 14, 2015, Boston police Officers Connolly and Delahanty were on routine patrol in the Orchard Park development in the Roxbury section of Boston, an area known for its gang and gun violence. The officers observed a man walking hurriedly along the sidewalk on Ziegler Street. The man, who appeared nervous, looked back repeatedly in the direction of a male and female couple who followed him. The female was later identified as Anyah Biscombe and the male was identified as Hakeem Martin, the defendant. The judge found that Officer Connolly believed that Martin was in his late teens.
From the record before us, it appears there was no contact between the police and the man observed walking away nervously.
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As the defendant walked in front of the officers' unmarked car, Officer Connolly observed that the defendant had his right hand placed firmly in his right pants pocket in such a way that Officer Connolly suspected, based on his training and experience, that the defendant "could possibly have a firearm or a weapon in his pocket." As Officer Connolly was making these observations, an unknown Hispanic male on Ziegler Street made eye contact with Officer Connolly and pointed in the direction of the defendant two or three times with a wide-eyed look. When Officer Connolly pointed at the defendant and the female, the Hispanic male nodded his head as if to indicate "yes." Based upon these observations, Officer Connolly believed there had been some sort of interaction between the defendant and the man who repeatedly looked back toward the defendant nervously.
The officers turned their vehicle around, pulled up directly next to the defendant, and exited their vehicle to engage him in conversation. Officer Delahanty, in plain clothes, but displaying his police badge, approached the defendant. The defendant "appeared very nervous" and began backing away from Officer Delahanty. As he did so, Officer Delahanty said, "Hey, I just want to have a conversation with you, ... [d]o you have any weapons on you?" The defendant, whose right hand had not moved from his right pants pocket during the officers' observation of him, put his hands in the air and said, "I only have a knife, I got a knife on me." As the defendant backed away from Officer Delahanty, he backed into Officer Connolly who had approached from the rear. Officer Connolly immediately pat frisked the exterior of the defendant's right pants pocket and felt what he knew to be a firearm. The firearm was seized and the defendant was arrested.
Discussion. We review the judge's decision under familiar standards. We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). However, we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
A police officer can lawfully seize and pat frisk an individual if the officer has a reasonable suspicion based on specific and articulable facts that the individual is committing a crime and presents a danger to the officers or others. Terry v. Ohio, 392 U.S. 1, 27 (1968). Commonwealth v. Narcisse, 457 Mass. 1, 7–11 (2010). "[I]t does not take much for a police officer to establish a reasonable basis to justify [a] ... search based on safety concerns, and, if the basis is there, a court will uphold the order." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). "The facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his acts." Commonwealth v. Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).
"[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). "[T]he police do not effect a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe he was not free to turn his back on his interrogator and walk away." Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). We agree with the motion judge's conclusion that the defendant was not seized until Officer Connolly put his hands on the defendant's right pocket. Before that point, there had been no show of authority that would have indicated to the defendant that he was not free to leave. See Sykes, supra at 313. Overhead lights were not activated, firearms were not drawn, means of egress were not blocked, and there were no verbal commands. See ibid. The officers merely approached the defendant on a public sidewalk and initiated conversation.
The second question is whether, at the time of the seizure, there were specific and articulable facts supporting a reasonable suspicion that the defendant was committing a crime and presented a danger to the officers. See Terry v. Ohio, supra. Here, at the time the defendant was seized, the officers had the following information: (1) a man was observed walking away from the defendant and looking back at him nervously in a neighborhood known for gun violence; (2) the defendant kept his right hand firmly in his pocket in a manner that, to Officer Connolly, suggested he was securing an unholstered firearm as he walked; (3) a third man caught Officer Connolly's attention in a wide-eyed manner and discreetly pointed at the defendant; (4) when the officers approached, the defendant backed away nervously and told the officers he had a knife; (5) the defendant appeared to be in his late teens; and (6) it was unlawful for anyone under the age of twenty-one to possess a firearm in the city of Boston.
While some of these facts considered individually might have innocent explanations, when considered together by a trained and experienced police officer, they supported a reasonable suspicion that the defendant unlawfully possessed a firearm. See Commonwealth v. DePeiza, 449 Mass. 367, 368, 373 (2007) (observation by trained police officer of man holding right arm stiff and straight against right side in neighborhood known for gun violence supported reasonable suspicion of illegal firearm possession). We conclude that the totality of these circumstances was "enough to warrant belief by a ‘reasonably prudent man ... that his safety or that of others was in danger." Fraser, supra at 546, quoting from Terry v. Ohio, 392 U.S. at 27. Accordingly, the patfrisk resulting in the seizure of the firearm was an appropriate and justifiable protective measure.
Order allowing motion to suppress reversed.