Opinion
10-P-2280
10-27-2011
COMMONWEALTH v. XAVIER X., a juvenile.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile was indicted as a youthful offender on a variety of violent felonies. After a hearing in the Juvenile Court, a judge allowed the juvenile's motion to suppress any statements made by the juvenile, and any fruits therefrom, which were claimed to have resulted from the juvenile's unconstitutional seizure. After receiving permission from a single justice of the Supreme Judicial Court, the Commonwealth brings this interlocutory appeal challenging the judge's order. We reverse.
Although the juvenile's motion to suppress and affidavit lacked the particularity that Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004), requires, both of which were challenged by the Commonwealth before the motion judge and here on appeal, we pretermit that issue and turn to what was suppressed. The judge's order suppressed the juvenile's name, his date of birth, and his description.
The parties agreed that the patfrisk of the defendant was not supported by a reasonable suspicion that the juvenile had committed, was committing, or was about to commit a criminal offense and was armed and dangerous. See Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010). As a matter of fact, the judge found that the officers approached the juvenile and his companion, and asked their names and dates of birth while the officers simultaneously patfrisked them. However, in her conclusions of law, the judge ruled that the officers approached the defendant and his companion and asked them for their names and dates of birth, during a mere street encounter, that had not yet become a stop in the constitutional sense.
Regardless of the sequence of events, Officer Thomas Bernier testified that upon seeing the juvenile he knew not only that he had previously arrested the juvenile for armed robbery, but also that he knew the juvenile by his name. The officer also testified that he did not recall asking the juvenile for his date of birth. There was no evidence, including the juvenile's affidavit, which supported the judge's finding that the juvenile was asked his date of birth.
Because the officer already knew that juvenile's name, it was not the product of any illegal conduct. Also, as the juvenile had previously been arrested, even if the officer had asked about his date of birth, that piece of information was also already known to the police. See Silverhorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (evidence that may have been unlawfully seized does not automatically become 'sacred and inaccessible' if it has a source independent of the claimed misconduct). To hold otherwise would improperly put the police in a worse position than they would have been in if no misconduct had occurred at all. See Nix v. Williams, 467 U.S. 431, 443 (1984); Commonwealth v. Benoit, 382 Mass. 210, 216-217 (1981); Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 20-3[a] (2011-2012 ed.).
Furthermore, the judge's suppression of the juvenile's description also constituted error. The Commonwealth correctly argues that the juvenile did not have an expectation of privacy in his appearance as he stood in front of a store on a public street. See Commonwealth v. Starr, 55 Mass. App. Ct. 590, 593 (2002). Moreover, what the officer saw and committed to memory before the patfrisk is not a fruit of any illegal conduct that occurred thereafter. See Commonwealth v. Wilson, 38 Mass. App. Ct. 680, 682 (1995).
Order allowing motion to suppress reversed.
By the Court (Kafker, Trainor & Meade, JJ.),