Opinion
21-P-290
04-14-2022
COMMONWEALTH v. Willmann RIVADENEIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2019, a Middlesex County grand jury returned a six-count indictment against the defendant for armed home invasion, armed robbery, conspiracy, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm as an armed career criminal. Following a hearing on the defendant's motion to suppress, the judge found that the arresting officer did not have reasonable suspicion to stop the defendant and ordered the evidence seized during that stop suppressed. The judge also denied the Commonwealth's subsequent motion for reconsideration. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal in this court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). We conclude that reasonable suspicion existed at the time the officer stopped the defendant and therefore reverse the order allowing the motion to suppress.
The evidence consisted of observations made by the officer of the defendant after the stop and items seized from the defendant's possession: approximately $25,000 in cash, six zip ties, some lighters, and a set of keys to an Audi motor vehicle that was at the scene of the home invasion. The defendant's motion also included a request to suppress statements by the defendant; however, there is no mention of any statements in the hearing transcript or the judge's findings.
Background. On October 25, 2019, at approximately 9:41 A.M. , a Lowell police dispatcher sent an emergency call for a possible home invasion in progress at 116 Corbett Street involving two suspects. The suspects were described as a Black male wearing a black hooded sweatshirt and a Hispanic male wearing a navy-blue hooded sweatshirt. The dispatch indicated that both suspects were possibly armed with firearms and had fled on foot toward Cabot Crossing, a residential condominium complex. Officer Ramos, a fifteen-year police veteran, responded to the call. Being familiar with the area, the officer proceeded to an unpaved path that runs behind 116 Corbett Street and Cabot Crossing. The path is separated from the residential area by a chain link fence approximately four feet high.
The emergency dispatch was referred to by the officer as a "priority one tone."
Cabot Crossing is approximately one double-block south of 116 Corbett Street.
Less than two minutes after the dispatch, the officer saw a lone person on the path. The person appeared to be a male wearing black jeans, a navy-blue hooded sweatshirt with the hood up, and dark footwear, walking in the same direction the officer was traveling. The officer concluded that this person matched the description of one of the suspects. As the individual reached the end of the path and got onto the train tracks, the officer used the "P.A." system in his cruiser to give a verbal command to stop. After the individual looked back and then continued walking, the officer got out of the cruiser and again gave a verbal command to stop. The individual, later identified as the defendant, held out his empty hands as he turned around and began to walk toward the officer. As the defendant approached, the officer observed him to be a Hispanic male who was out of breath, sweating, had a cut on his right eye and some blood on his right hand, and had several wads of cash sticking out of his pockets. The defendant was placed in handcuffs and given his Miranda rights.
Discussion. 1. Standard of review. In reviewing the grant of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), but we "conduct an independent review of [their] ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "Our duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). "[F]indings drawn partly or wholly from testimonial evidence are accorded deference and are not set aside unless clearly erroneous." Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
2. Reasonable suspicion. The Commonwealth argues that the motion judge erred in finding that the officer did not have reasonable suspicion to stop the defendant. "Once a seizure has occurred, the issue for the court is ‘whether the stop was based on an officer's reasonable suspicion that the person was committing, had committed, or was about to commit a crime.’ " Commonwealth v. Meneus, 476 Mass. 231, 235 (2017), quoting Commonwealth v. Martin, 467 Mass. 291, 303 (2014). "That suspicion must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ " Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007), quoting Scott, 440 Mass. at 646. Reasonable suspicion is an objective standard, based on the totality of the circumstances. Mercado, 422 Mass. at 369. "[T]he value of a vague or general description in the reasonable suspicion analysis may be enhanced if other factors known to the police make it reasonable to surmise that the suspect was involved in the crime under investigation." Meneus, 476 Mass. at 237, citing Mercado, supra at 371. When a police officer receives information about an individual with a gun, the test for determining reasonable suspicion should include consideration of "the government's need for prompt investigation" (citation omitted). Commonwealth v. Stoute, 422 Mass. 782, 791 (1996). Geographic and temporal proximity to a recent crime and a potential ongoing risk to public safety weigh towards reasonable suspicion in the over-all analysis. Commonwealth v. Evelyn, 485 Mass. 691, 704 (2020).
Relying on Commonwealth v. Warren, 475 Mass. 530 (2016), and Commonwealth v. Cheek, 413 Mass. 492 (1992), the motion judge concluded that the vague description in the broadcast did not provide reasonable suspicion to stop the defendant. We agree with the Commonwealth that this reliance was misplaced. While "a navy blue sweatshirt" is not the most descriptive, this was not the only factor, established by the judge's findings, that the officer had to support a reasonable suspicion for making the stop. The defendant was seized on a fenced-off dirt path while walking in the direction of the suspects’ reported flight path; he was located a few city blocks away from the address of the reported armed home invasion ; the suspects were potentially armed with firearms; the defendant was located less than two minutes after the emergency dispatch; and he was wearing a sweatshirt that matched the description of one of the suspects. Contrast Warren, supra at 536-537 (defendant seized two miles away from crime scene, almost thirty minutes later, based on vague description that tended to exclude defendant); Cheek, supra at 496 (defendant seized while walking through residential neighborhood wearing jacket commonly worn in area). The motion judge failed to properly take into account the danger to the public and the proximate and temporal location of the defendant to the crime scene. While we agree with the motion judge that there was nothing suspicious about the way the defendant was walking, where there was a concern for the public's safety, the facts that he matched the description of one of the suspects, was located within minutes close to where the reported home invasion occurred, and was walking away from the location of the reported crime provided reasonable suspicion to make an investigatory stop.
We disagree with the motion judge's finding that the defendant was seized when the officer stepped out of his cruiser and ordered the defendant to stop. He was seized when the officer ordered him to stop using the P.A. system in his cruiser. See Commonwealth v. Perry, 62 Mass. App. Ct. 500, 503 (2004). Because the two commands happened within moments, however, we conclude that the discrepancy has no impact on the reasonable suspicion analysis.
As the motion judge noted in her findings, this distance could be covered in a few minutes by the average person running or walking quickly.
Moreover, the officer who made the stop was a fifteen-year police veteran who was familiar with the area. Police may rely on their training and experience when making inferences and deductions about the cumulative information available to them as a basis for reasonable suspicion. See Commonwealth vs. Sweeting-Bailey, 488 Mass. 741, 746 (2021), citing DePeiza, 449 Mass. at 373. Here, the officer reasonably used his knowledge of the area to determine that a suspect heading in the direction of Cabot Crossing may have jumped the fence that leads to the dirt path and bridge where the defendant was ultimately located. See DePeiza, supra. As in Commonwealth v. Alvarado, 427 Mass. 277, 283 (1998), the nature of the priority one dispatch involving two fleeing suspects who were potentially armed with firearms created an imminent danger to public safety warranting at least an investigatory stop of the defendant, where he fit the description of one of the suspects in the dispatch and was observed in both physical and temporal proximity to the scene of the home invasion. See Evelyn, 485 Mass. at 709 ("significant weight" afforded to defendant's proximity to crime and possible carrying of firearm); Commonwealth v. Watson, 430 Mass. 725, 729 (2000) ("Seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry").
The Commonwealth also argues that there was reasonable suspicion to stop the defendant because, at the time of the stop, he was trespassing on train tracks. We do not reach the merits of this argument because we conclude there was reasonable suspicion to stop the defendant for the armed home invasion.
Order allowing motion to suppress reversed.