Opinion
CRIMINAL ACTION NO. 02-10152-RWZ
May 23, 2003
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On November 18, 2001, several Boston detectives and police officers assigned to the Youth Violence Strike Force ("YVSF") were detailed to Dorchester, Massachusetts. At about 8 p.m., Detectives Marvin Wright and Robert Zingg, and Officer Frank Callender, driving an unmarked car, were directed to Clayborn Street. The police had received a tip that a man, known as "Deebo," had a gun on him and was about to leave a house on Clayborn Street and drive away in a gold Honda Accord. When a man got into the described Honda, Wright, Zingg, and Callender, along with Officers Vance Mills and Mark Boardley, who were in another unmarked car, followed him for several blocks to Longfellow Street, where they stopped him. After the man, defendant Michael Collins, admitted that he had a gun and marijuana, he was arrested. Defendant was ultimately charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now moves to suppress the evidence obtained as a result of the stop and search.
The parties agree that in the absence of a warrant, the question is whether the initial stop was based on reasonable suspicion of unlawful activity by defendant as described and defined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). They also agree that the determination of the legality of an investigatory stop requires "the court [to] first consider whether the officer's action was justified at its inception; and second, whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Walker, 924 F.2d 1, 3 (1st Cir. 1991) (internal quotation marks and citation omitted).
As to the first issue, "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695 (1981). In view of the totality of the circumstances, the detaining officers "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 417-18. Officers may lawfully stop a car if they have probable cause to believe that a criminal violation, including a traffic violation, has occurred. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996).
The government contends that the initial stop by the officers, in this case, was justified for two reasons. First, defendant had committed a violation of Massachusetts traffic laws, Mass. Gen. Laws ch. 90 §§ 6- 7, because the light illuminating the license plate was not working. Second, defendant was in possession of a firearm, according to a tip the officers received.
Both parties presented evidence at the hearing on the motion to suppress. I find the following facts: at about 8 p.m. on November 18, 2001, Detective Earl Perkins, a YVSF member, received a call from a confidential informant ("CI"). Perkins had met the CI five or six months earlier and thereafter, the CI had arranged drug and gun purchases on four occasions. A few weeks earlier, the CI had attempted to arrange the purchase of a gun from Deebo, but that effort failed.
This time the CI was calling from a house on Clayborn Street and informed Perkins that Deebo had a gun and would drive away in a gold Honda. He called again soon thereafter and gave Perkins the plate number of the Honda. At that point, Perkins called the YVSF and a little while later, Callender returned the call and Perkins relayed the CI's intelligence. As a result, two unmarked cars were deployed to observe and then follow the Honda. A third call from the CI advised that Deebo was leaving the house. Shortly, defendant got into the Honda and drove away. The pursuit began.
Defendant, after several turns, was driving on Longfellow Street when the police turned on their lights and pulled him over. One police car stopped in front of the Honda, the other behind. Defendant testified that the police cars were positioned in a manner that would have prevented him from leaving. The police witnesses deny that the Honda was boxed in. To the extent this is relevant, I find that while it was not impossible for defendant to depart, it would have been difficult to maneuver his car out from between the police cars.
During the pursuit, the several officers in the two cars and Perkins continued to have conversations by radio and cell phone. Mills knew Deebo to be Moses Collins, defendant's brother, and he cautioned his colleagues that Moses was a big, dangerous guy who liked to fight police. Perkins also knew Deebo as Moses Collins, having arrested him at some time in the past, but he did not so identify him to the others.
After the stop, Wright and Mills went to the driver's side of the Honda, while the other three went to the passenger side. Mills immediately realized that the driver was not Moses Collins and although he said so at some point, he was not sure when in the sequence of events. He did not know who the driver was. In any event, Wright asked defendant for his registration and license. Defendant opened the door part way and Wright smelled marijuana. Wright asked defendant whether he had marijuana and defendant said yes. Defendant also confirmed that he had a gun and pointed to his right hip. Zingg, who had by this time opened the passenger side door, reached in and took the gun; Mills reached in from the driver's side and took the marijuana. Defendant was then placed under arrest, taken out of the Honda, frisked, and placed in one of the police cars. The police witnesses concurred that defendant was pleasant, nice, and fully cooperative.
There was evidence that the window which operated electronically, was broken. Therefore, the driver did not roll it down and instead opened the door.
Concerning the alleged traffic violation, the following exchange occurred at the hearing:
Assistant United States Attorney: "What did you notice about the license plate?"
Wright: "I noticed that the license plate was not illuminated at the time."
AUSA: "As a result, what did you do?"
Wright: "That's when we pulled the motor vehicle over on Longfellow Street."
AUSA: "And why did you not pull the car over earlier?"
Wright: "We don't want to give up our source of information."
(Evidentiary Suppression Hearing Transcript at 29, lines 6-13.) On cross examination, Wright agreed that he had made the decision to stop and search the car before he saw that the license plate was not illuminated. It is also undisputed that the traffic violation was not reported. Furthermore, at the request of defendant, the registered owner of the Honda, Loren Mills (no relation of Officer Mills), came to Longfellow Street and the police allowed her to drive the car away. Any concern the police may have had about the unlit license plate when defendant was driving the car had evaporated by the time Ms. Mills took the wheel. I credit Ms. Mills' testimony that the light was working a week later, and that she had done nothing to it in the interim. Because I do not believe that the license plate light was not working when defendant was stopped, I find that there was no traffic violation which justified the initial stop.
Concerning the alleged gun violation, the only information the arresting officers had when they stopped defendant was that he had a gun on his person. Assuming that the person in the Honda was Deebo, they also knew from Mills that he was violent and dangerous in encounters with police. That is all. And that, without more, is not a crime in Massachusetts. Commonwealth v. Alvarado, 667 N.E.2d 856, 858 (Mass. 1996) ("Carrying a gun is not a crime."). The totality of the circumstances, more specifically, the knowledge and observations of the detectives and officers when they stopped defendant, did not provide a "particularized and objective basis" for suspecting the defendant of criminal activity. Because reasonable suspicion was lacking, the officers' actions were not justified at the inception of the stop. Id., at 858 ("[R]easonable suspicion justifying an investigatory stop cannot be founded on an anonymous tip concerning a concealed weapon . . . where there is no indication (in the tip or otherwise) of a threat to anyone's physical well being or of the commission of a crime (other than the possibility of the possession of an unlicensed weapon)."); Commonwealth v. Couture, 552 N.E.2d 538, 541 (Mass. 1990), cert. denied, 498 U.S. 951, 111 S.Ct. 372 (1990) (holding that "mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun" and therefore, does not justify an investigatory stop). See also United States v. Rich, 5 F.3d 894, 899 (5th Cir. 1993) (mere possession of gun is inadequate to suggest criminal activity absent corroboration that defendant was a convicted felon); Florida v. JL, 529 U.S. 266, 120 So. Ct. 1375 (2000) (holding an anonymous tip concerning gun possession, without more, is insufficient to justify an investigatory stop.) But see United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994) (finding the totality of the circumstances, including the limited ability of officers to confirm all the information in the anonymous tip, the report of gun possession and "the statistical likelihood that the gun was illegal," justified an initial stop); United States v. Clipper, 973 F.2d 944, 951 (D.C. Cir. 1992) (distinguishing gun tip from drug tip on basis of imminent danger and finding reasonable suspicion exists where anonymous tip states an individual has a weapon). Because the initial stop itself was not warranted, there is no need to address any remaining issues.
The Massachusetts Supreme Judicial Court acknowledged the Bold and Clipper holdings in Alvarado, but nonetheless affirmed its reasoning in Couture.
Accordingly, defendant's Motion to Suppress Fruits of Illegal Search and Seizure and Statements on Longfellow Street is allowed.