Opinion
No. 05-598.
June 29, 2006.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS EVIDENCE AND IDENTIFICATIONS
INTRODUCTION INTRODUCTION
The Defendant Marcus McKinley (McKinley) moves to suppress a knife and bloody tissue on the knife, allegedly recovered from his pants pocket. He also moves to suppress his identification by several witnesses. The Court conducted a hearing on April 11, 2006, at which Foxboro Police Officer John Chamberlain (Chamberlain), Sergeant Richard Noonan (Noonan), and Officer John Hannon testified.
The Court determines that police had a reasonable and articulable suspicion that McKinley had committed crimes including assault and battery, justifying a threshold inquiry and that police were entitled to pat-frisk McKinley for weapons to ensure the safety of police and bystanders. The Court also finds that the identification procedures employed were not unnecessarily suggestive. The Court denies the Motions to Suppress the knife with bloody tissue on it and the witness identifications of McKinley.
FINDINGS OF FACT
Based on the evidence presented and reasonable inferences from the evidence, the Court makes the following findings of fact:
1. On the evening of August 17, 2005, Chamberlain, a uniformed officer, received a radio call for a large fight in the street at 8 Gilmore Street in Foxboro. Moments later, he received a radio transmission that there were five people injured and five to six black males running from the "scene".
2. Chamberlain approached a church parking lot on the opposite side of a stand of trees behind 8 Gilmore. This was about 500 yards from 8 Gilmore Street. He saw some people walk quickly from the woods and get in a Mitsubishi Montero S.U.V. in the lot.
3. Chamberlain saw a person with a limp hurriedly walking toward the S.U.V. This person got in the driver's seat. There were four people in the S.U.V.
4. Chamberlain then saw a black male, McKinley, running across the parking lot toward the S.U.V. Chamberlain activated his blue emergency lights and McKinley changed direction by walking away, toward the street. Chamberlain got out of his car and from about ten yards away, told him to stop. McKinley continued to walk fast, and Chamberlain ran over to him and told him to stop.
5. As he stopped, Chamberlain told him to put his hands behind his head, patted him down for weapons and felt, in a right side pants pocket, what felt like a knife. He took it out and discovered it was a four-inch long folding knife. Without opening it, Chamberlain put it in his pocket.
6. Chamberlain told McKinley that he was not under arrest, handcuffed him and placed him in the back of a police car. Chamberlain also told the people in the S.U.V. to shut the ignition off.
7. Noonan and another officer arrived. They ordered the people in the S.U.V. out, pat-searched them, and handcuffed most of them behind their backs. They then received a radio call that the suspects had left the scene and an individual had been stabbed. Chamberlain opened the knife and saw what looked like bloody tissue on the blade. A short time later they received a call that police were "on the scene" with an ambulance and that there were "five to six black males" involved.
8. Noonan went to 8 Gilmore Street, where he met Hilary Maxwell and Michael and David Czubyk. The three of them told Noonan that some people came to the door and asked for Michael, when Michael went to the door there was a fight and one of their friends was stabbed. They told Noonan that they thought they could identify the people involved. Noonan told the three that they were going to do an identification procedure.
9. Noonan told them that police had stopped five people in the area, but that this did not mean that they were definitely involved in the fight. Before leaving 8 Gilmore Street, he told them that if they recognized anyone they should tell him and that they should not talk to each other from that point on. On the way, Noonan reminded them not to talk to each other. Noonan drove them to the church parking lot.
10. Police took McKinley out of the police car and lined McKinley and the other people up in the parking lot. Some were handcuffed; those that were not were asked to put their hands behind their backs to present a uniform appearance. All were standing in front of, or near the S.U.V. in an area that was well lit by parking lot lights and lights from police cars.
11. The time from the first call to the identification procedure was less than 20 minutes.
12. Noonan brought Hilary Maxwell out of the police car first. She looked at the people from about 15-20 feet away and quickly identified McKinley as involved in the fight and another person as having knocked on the door. Noonan brought her back to the police car.
13. Noonan took Michael Czubyk out of the police car and he identified all five as being present at the fight and McKinley and two others as hitting him. He said he was positive about his identification and Noonan took him back to the police car.
14. Noonan brought David Czubyk out of the car and he identified McKinley as having thrown Hilary Maxwell to the ground. He was not able to identify anyone else.
15. Noonan quickly returned the witnesses to the house at 8 Gilmore Street and then returned to where the S.U.V. was stopped. After speaking with other police officers, Noonan arrested McKinley, obtained identifying information from the rest, and released them.
DISCUSSION
1. The Knife With Bloody Tissue
a. The Stop
In certain circumstances a police officer may stop and frisk a citizen upon less than probable cause. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). "A police officer may stop a person for a threshold inquiry where the officer has a reasonable ground to suspect him of criminal activity." Commonwealth v. Thibeau, 429 Mass. 762, 763 (1981). "[The officer's] suspicion [in such an investigatory stop] must `be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience.'" Id. (quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974)). "The criteria of forcible detention and restriction of movement do not serve to distinguish an arrest from an investigatory stop." Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 826 (1999). Not unlike an arrest, "a complete restriction on liberty of movement [also] occurs in a typical investigatory stop." Id. Therefore, handcuffing a suspect and putting him in the back of a police cruiser to secure the suspect until a show up identification can take place does not exceed the force permitted for an investigatory stop. Id. at 826-827.
When Chamberlain stopped McKinley, he had a reasonable suspicion based on specific and articulable facts that McKinley had just committed crimes, including assault and battery resulting in an injury, and was fleeing. Chamberlain had received a radio call of a large fight in the street at 8 Gilmore Street, and a further call that five people were injured and five to six black males were fleeing. Chamberlain then observed a few people emerge from the woods and walk quickly to an S.U.V. Chamberlain then observed McKinley, a black male, running across the parking lots towards the S.U.V. All came from a natural escape route from 8 Gilmore Street. When Chamberlain activated his emergency lights McKinley changed direction and began walking down the street. When Chamberlain asked McKinley to stop he ignored his requests and continued walking at a hurried pace. Chamberlain had a reasonable suspicion to believe that McKinley had just committed a crime and was attempting to flee because he was moving, with some haste, along a natural escape route, matched the description of a black male accompanied by other men, changed course when Chamberlain activated his emergency lights, and was unwilling to come in contact with a police officer. Although merely walking away from a police officer cannot create a reasonable suspicion that the person committed a crime, an attempt to avoid contact with an officer may be considered along with other facts. Commonwealth v. Grandison, 433 Mass. 135, 139 (2001). Given the additional circumstances in this case, Chamberlain was reasonable in suspecting McKinley was participated in the fight.
b. The Frisk
If the investigatory stop is warranted based on the officer's reasonable suspicion, the officer may frisk the suspect for any dangerous weapons to ensure the safety of the officer and any bystanders. See Commonwealth v. Mercado, 422 Mass. 367, 371 (1996) (Defendant was frisked by an officer who was responding to a report of an armed robbery. The Defendant was acting suspiciously within close proximity to the location of the robbery and matched the description of the suspect. During the frisk the officer found a gun). However, the scope of the search must be "strictly tied to and justified by the circumstances which render its initiation permissible." Id.
Chamberlain conducted a frisk of McKinley to determine whether he had any weapons on him. Chamberlain found the knife in McKinley's pocket. The search was incident to the stop supported by a reasonable suspicion, and it was narrow in scope because it was intended to determine whether McKinley had any weapons on him. The knife was lawfully seized because the stop was supported by a reasonable suspicion and the frisk was a search for dangerous weapons incident to the stop. Mercado, 422 Mass. at 371.
c. The Continued Detention
Once Chamberlain had a reasonable suspicion to believe McKinley committed a crime and was attempting to flee the scene, Chamberlain's detention of McKinley with handcuffs was not an excessive restriction on McKinley's freedom of movement. Gordon, 47 Mass. App. Ct. at 826. It was reasonable to detain McKinley in this manner while police waited for the identification procedure, given all that police knew, particularly the just-discovered bloody tissue on the knife. Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). Chamberlain's brief detention of McKinley while waiting for the identification procedures was a reasonable extension of the threshold inquiry and investigative stop. Id. at 647.
2. The Identification Procedures
McKinley moves to suppress the witnesses' show up identifications of him as a participant in the fight. Although disfavored, one-on-one confrontations by the witnesses at show up identifications are permissible, where as here the identifications took place shortly after the incident and were not unnecessarily suggestive. Commonwealth v. Thompson, 427 Mass. 729, 735 (1998); Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 41 (1985). "[T]he police procedure of arranging . . . show [ups] is recognized as usual and natural and justified by the need for efficient investigation in the immediate aftermath of crime." Commonwealth v. Coy, 10 Mass. App. Ct. 367, 371 (1980). "Such confrontations permit witnesses to view the suspect while recollection is fresh. . . ." Id.
The show up identifications took place within 20 minutes of the initial dispatch, and within a reasonable time of the fight. Noonan told the witnesses that even though these men were stopped, it did not mean they were definitely involved in the fight. Noonan also told the witnesses not to speak with one another once the identification process began. All of the men were presented to the witnesses uniformly and with adequate lighting. The show up identifications will not be suppressed because they constituted a "part of an efficient police investigation in the immediate aftermath of a crime" and were not unnecessarily suggestive or impermissibly lengthy. Thompson, 427 Mass. at 735-736; Perretti, 20 Mass. App. Ct. at 41-42.
CONCLUSION
For the foregoing reasons, McKinley's Motion to Suppress the knife and bloody tissue, along with the Motion to Suppress the witness identifications are DENIED.