Opinion
20-P-1297
12-07-2021
COMMONWEALTH v. Yordali YORRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Yordali Yorro, was charged with carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ), carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n ), and possession of ammunition without a firearm identification card (FID card), in violation of G. L. c. 269, § 10 (h ) (1). Following an evidentiary hearing, the defendant's motion to suppress was denied; he was convicted of all charges after a bench trial. On appeal, the defendant argues that the motion judge erred in denying the defendant's motion to suppress. We agree and vacate the judgments.
1. Background. We recite the facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing that the motion judge appeared to credit. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Members of the North Shore Gang Task Force (task force) conducted "impact patrols" of designated "hot spots" in the city of Lawrence. The designated hot spots were described in a weekly bulletin and included locations of "shootings, fights, robberies, [and] complaints from citizens." One hot spot was an apartment building at 380 Chestnut Street. The task force had received numerous complaints about groups congregating there.
On September 8, 2017, Lawrence Police Detectives Jamie Brito and Angel Lopez and State Police Trooper David Strong arrived at 380 Chestnut Street around 8 P.M. where they saw a group of about five people. A "no trespassing" sign was posted above the entryway door. Lopez and Strong testified that the group was on the sidewalk when they arrived. Brito testified that the group was on the grass near the sidewalk when they arrived.
The sign was red and white and read "NO TRESPASSING," "No Loitering," and "Police Take Notice."
Brito was familiar with the defendant as a person of interest in an unsolved, gun-related, homicide. Also, as a member of the task force, Brito had obtained a videotape that depicted the defendant near 380 Chestnut Street. In the videotape, the defendant approached a car, pointed to his waistband, where there appeared to be a revolver, and said, "always got it on me." Additionally, Brito believed that the defendant lived in Lowell, not Lawrence, and therefore did not live at 380 Chestnut Street.
As the officers approached the group, Brito told Lopez and Strong to use caution with the defendant because "he potentially might have a firearm." The officers approached the group and asked them to sit down. After sitting down for a split second, the defendant stood up and took steps toward a car. Strong approached the defendant, pat frisked him, and located a loaded firearm in the defendant's sweatshirt.
The defendant moved to suppress the firearm claiming that the officers lacked reasonable suspicion to conduct the patfrisk. Following an evidentiary hearing, the judge denied the motion. After a bench trial before a different judge, the defendant was convicted. This appeal followed.
2. Discussion. "When reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. Almonor, 482 Mass. 35, 40 (2019). We also "accept the [motion] judge's ... [determination of] the weight and credibility [of the evidence]." Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000). "The Commonwealth bears the burden of demonstrating that the actions of the police officers were within constitutional limits." Commonwealth v. D.M., 100 Mass. App. Ct. 211, 214 (2021), quoting Commonwealth v. Meneus, 476 Mass. 231, 234 (2017). Our review of a stop and patfrisk requires a two-step inquiry into both the lawfulness of the stop and the lawfulness of the patfrisk itself. See Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010).
To justify an investigatory stop, "police officers must have had reasonable suspicion, based on specific and articulable facts, that the defendant had committed, was committing, or was about to commit a crime" (quotation and citation omitted). Commonwealth v. Henley, 488 Mass. 95, 102 (2021). To conduct a lawful patfrisk, "an officer needs more than safety concerns; he or she must also have a reasonable belief that the suspect is armed and dangerous." Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020). In other words, "[w]e ... do not allow [a patfrisk] absent reasonable suspicion that the suspect is dangerous and has a weapon. Without a basis for such suspicion, there is no justification for the patfrisk." Id. at 39.
For purposes of a stop and patfrisk, an individual is stopped -- or seized in the constitutional sense -- where a reasonable person under the circumstances "would believe that an officer would compel him or her to stay." Commonwealth v. Matta, 483 Mass. 357, 363 (2019). "Once a seizure has occurred, the question becomes whether at the time of the seizure, the police had reasonable suspicion" that would justify the stop (quotations and citation omitted). D.M., 100 Mass. App. Ct. at 214. This "requires less than probable cause to arrest but must be based on more than just a hunch." Henley, 488 Mass. at 102. "The standard of reasonable suspicion does not require that an officer exclude all possible explanations of the facts and circumstances." Id.
The judge did not explicitly find when the defendant was stopped. The Commonwealth acknowledged at oral argument that the defendant was stopped, in a constitutional sense, when the officers instructed the group to sit down. We agree. See Commonwealth v. Sykes, 449 Mass. 308, 310 (2007), citing Commonwealth v. Barros, 435 Mass. 171, 173 (2001) ("Determining the precise moment at which a seizure occurs is critical to resolving the issue of suppression").
Having determined the time of the stop, we turn to whether the police had reasonable suspicion at that time that the defendant had committed or was going to commit a crime. The officers testified that the only criminal activity of which they suspected the defendant was criminal trespass. Therefore, the officers could permissibly stop the defendant only if their belief that he had committed or was committing a trespass was "grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a hunch." Commonwealth v. Warren, 475 Mass. 530, 534 (2016), quoting Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007).
The defendant was not charged with trespass.
Under G. L. c. 266, § 120, "[w]hoever, without right enters or remains in or upon the ... buildings ... or improved or enclosed land ... of another ... after having been forbidden so to do by the person who has lawful control of said premises ... shall be punished." A person violates the statute "by entering the premises after having been forbidden to do so" or "by remaining on the premises after having been asked to leave." Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 948 (1991), citing Commonwealth v. Richardson, 313 Mass. 632, 637 (1943). "[A]dequate notice" that one is forbidden to remain on the premises must be given. Commonwealth v. Alvarez, 480 Mass. 1017, 1019 (2018).
The location of the defendant at the time of the purported trespass is of particular importance because "streets and sidewalks of [a] development used as access to the entrances to the apartments fall squarely within the classification of a public forum." Walker v. Georgetown Hous. Auth., 424 Mass. 671, 675-676 (1997). Two of the three officers testified that the defendant was on the sidewalk when they arrived; the third officer testified the defendant was on the grass near the sidewalk. Although the motion judge credited the officers’ testimony, he did not resolve this conflict on a critical point. Contrast Commonwealth v. Colan, 449 Mass. 207, 215-216 (2007), quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984) ("Where there is conflicting testimony, a judge's resolution of the conflicting testimony ‘invariably will be accepted’ "); Commonwealth v. Vick, 90 Mass. App. Ct. 622, 625 (2016), quoting Commonwealth v. Ortiz, 435 Mass. 569, 578 (2002). Additionally, although the officers testified that there were multiple no trespassing signs throughout the complex, the photograph contained in the record shows only one of the signs, see supra note 1, which was not prominently displayed. Nor is there any evidence that the signs pertained to the grass area near the sidewalk, if Brito's testimony about the group's location were to be credited over that of Lopez and Strong.
On this record, we conclude the officers did not have reasonable articulable suspicion that the defendant impermissibly remained at 380 Chestnut Street after having been given adequate notice that he was not permitted to be there. Put another way, the officers did not have reasonable articulable suspicion the defendant was committing a criminal trespass. See Commonwealth v. Villagran, 477 Mass. 711, 717-718 (2017) ("reasonable suspicion of a criminal trespass did not arise where none of the information available to [the officer] suggested that the defendant remain[ed] in or upon the building ... of another ... after having been forbidden so to do by the person in lawful control of said premises" [quotation and citation omitted]). See also G. L. c. 266, § 120. Accordingly, the seizure of the defendant was constitutionally impermissible.
Based on our conclusion, we need not address the defendant's remaining arguments.
Judgments vacated.
Findings set aside.