Opinion
19-P-617
12-24-2019
COMMONWEALTH v. Gary POLIGNONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of possession of oxycodone, a class B controlled substance, following a jury-waived trial in the Superior Court. On appeal, the defendant claims error in the denial of his motion to suppress evidence. Specifically, he argues that he was unlawfully seized without reasonable suspicion and that the oxycodone pills he surrendered and the statements he made to police should be suppressed. We affirm.
Background. The following facts are drawn from the judge's findings and from undisputed facts in the record that were implicitly credited by him. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On September 7, 2017, members of the Boston Police Department drug unit were conducting surveillance in the area of the Wood Island station of the Massachusetts Bay Transportation Authority (MBTA). At approximately four o'clock in the afternoon, officers observed a dark colored Honda Accord drive into the station and park in an area reserved for MBTA employees. The occupants of the car were later identified as Starlin Cruz and Bernardo Tejeda. Tejeda got out of the Accord, approached the entrance to the station, and paced while looking at his cell phone and scanning the area as if he were looking for someone.
A few moments later, a Lexus drove into the station and parked near the Accord. The defendant, later identified as Gary Polignone, an MBTA employee, got out of the Lexus and walked briskly toward Tejeda. The two men talked, went into the station, and then entered a room in the station marked "Authorized Personnel Only, Police Take Notice." The defendant closed the door behind them. Less than a minute later, the men reemerged from the room. While returning to the Accord, Tejeda appeared to tuck something in the rear of his pants.
Shortly thereafter, the defendant was observed in conversation with emergency medical technicians (EMT) near the entrance to the station. When that conversation ended, Officer Nunez approached the defendant, identified himself, and asked if he could speak with him. The defendant agreed and Officer Nunez guided him away from the EMTs by gently and briefly placing a hand on the defendant's shoulder and gesturing toward a corner of the station. Officer Nunez explained to the defendant that he and his fellow officers had observed him meet with Tejeda and asked if he had received anything from him. Officer Nunez also told the defendant that he had witnessed many similar encounters in the past and suspected there might be drugs involved. The defendant admitted that he had purchased pills from Tejada for $2,000 and handed Officer Nunez a package containing 100 oxycodone pills. The interaction between Officer Nunez and the defendant lasted less than one minute before the defendant's admission. The defendant was calm and cooperative. When Officer Ford joined the defendant and Officer Nunez, the defendant told Officer Ford that he had "fucked up" by trying to make extra money with the pills and asked if there was anything he could do to help himself. The defendant was not arrested.
Tejeda was arrested by other officers after the defendant's admission. Following the arrest, officers seized $2,310 from the rear of Tejeda's pants. Cruz was arrested several hours later after an additional 200 pills were found in a hidden compartment in the Accord. Tejeda and Cruz also filed motions to suppress evidence. The orders on the motions to suppress filed by Tejeda and Cruz are not before us.
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). We defer to the judge's assessment of the credibility of the testimony taken at the evidentiary hearing on the motion to suppress, see Commonwealth v. Scott, 440 Mass. 642, 646 (2004), but we are in the same position as the motion judge in reviewing the surveillance video, and therefore make our own determination as to the weight of that evidence. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
The defendant claims that the judge erroneously denied his motion to suppress because he was unlawfully seized by Officer Nunez without reasonable suspicion. We disagree. "[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 effect a seizure merely by asking questions. "[T]he inquiry must be whether, in the circumstances, a reasonable person would believe that an officer would compel him or her to stay." Commonwealth v. Matta, 483 Mass. 357, 363 (2019). "[T]he coercion must be objectively communicated through the officer's words and actions for there to be a seizure." Id. at 364.
Here, the judge found that Officer Nunez, dressed in plain clothes, spoke with the defendant alone, in a conversational tone, and in a public place. The conversation lasted less than one minute before the defendant admitted that he had purchased oxycodone from Tejeda. Officer Nunez made no commands to the defendant and the defendant was not restrained, even after his confession. These findings were supported by the testimony presented at the suppression hearing and the surveillance video, which we have reviewed. Based on these findings of fact, we discern no error in the judge's conclusion that Officer Nunez's conduct "was not a ‘show of authority sufficient to create a seizure.’ Commonwealth v. Lopez, 451 Mass. 608, 611 (2008)." Nothing in the officer's words or conduct would have caused a reasonable person to conclude that he would have been compelled to stay.
We disagree with the defendant's suggestion that Officer Nunez seized the defendant by placing his hand on the defendant's shoulder. The judge found that this touching was "a brief, gentle and common way of directing a person ... so the two could talk." That finding was supported by the evidence and was not clearly erroneous.
In light of our conclusion that the defendant was not seized by Officer Nunez, we need not address whether the police had reasonable suspicion to justify the seizure.
For similar reasons, we reject the defendant's claim that he was subjected to custodial interrogation requiring the administration of Miranda warnings. It is the defendant's burden to establish the necessary facts to prove custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). In determining whether the defendant was in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 444 (1996), we consider "(1) the place of the interrogation; (2) whether the officers have conveyed ... any belief or opinion that the person is a suspect; (3) the nature of the interrogation ...; and (4) whether ... the person was free to end the interview." Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). We agree with the judge that here, only the second factor supports a finding of custody. It is undisputed that Officer Nunez communicated his suspicion that the defendant was involved in a drug transaction. However, a single factor is rarely determinative, Commonwealth v. Bryant, 390 Mass. 729, 737 (1984), and questioning of a general fact-finding nature designed to verify or dispel a suspicion is investigatory rather than accusatory and does not require Miranda warnings. See Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007). Mindful of these principles, we discern no error in the judge's conclusion that "[the defendant's] almost instantaneous admission and request to cooperate undermines a conclusion that he was subjected to the type of police-dominated custodial interrogation of the type at issue in Miranda." The motion to suppress was properly denied.
We reject the defendant's claim that there were "irreconcilable inconsistencies" in the judge's ruling that Tejeda was subjected to an unlawful seizure, but the defendant was not. There is ample support in the record for the judge's conclusion that Tejeda was seized without reasonable suspicion when a police vehicle parked behind the Honda Accord, preventing Tejeda from leaving. By contrast, there was no evidence that the defendant was physically restrained.
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Judgment affirmed.