Com. v. Borges

• Decision Date: 28 August 1985
• Parties: , 54 USLW 2166 COMMONWEALTH v. Leon BORGES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

482 N.E.2d 314

395 Mass. 788, 54 USLW 2166

COMMONWEALTH v. Leon BORGES.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 6, 1985.

Decided August 28, 1985.

Louis D. Coffin, New Bedford, for defendant.

Dana A. Curhan, Asst. Dist. Atty. (Phillip L. Weiner, Asst. Dist. Atty., with him) for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

A Bristol County grand jury indicted the defendant, Leon Borges, for possession of heroin with intent to distribute. G.L. c. 94C, § 32 (1984 ed.). A judge of the Superior Court denied the defendant's motion to suppress eight bags of heroin, and a single justice of this court granted the defendant's request for leave to take an interlocutory appeal. Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979).

The facts, as found by the motion judge, are these. At approximately 5:45 P.M. on September 3, 1983, on a main thoroughfare in New Bedford, a pedestrian hailed a police cruiser. The pedestrian told the two police officers in the cruiser that she wanted to speak with them, but not on the main thoroughfare. The officers and the pedestrian met minutes later on a nearby side street. The pedestrian then informed the officers that she recently had been with a person named Leon in a bar on Purchase Street and that Leon had eight bags of heroin for sale at $40 a bag. She stated that the bags of heroin were in Leon's left pants pocket, and she described in detail both Leon and his clothing. The conversation lasted approximately five minutes. The police officers did not know the identity of the pedestrian; neither one had received information from her before.

The officers then radioed a second cruiser and arranged to meet those officers in a nearby parking lot. The second pair of officers were to act as back-up while the first pair went to the area of the bar. The officers then drove toward the bar looking for the defendant. One of the officers had known the defendant for many years and had assumed that the pedestrian had described the defendant when she spoke of "Leon." The officer had seen the defendant in the area approximately five minutes before the conversation with the pedestrian. The defendant and his clothing matched the description given by the pedestrian.

Upon approaching a magazine store located 150 feet from the bar described by the pedestrian, the officers saw the defendant standing with several other people in front of the store. By the time the officers parked the cruiser in front of the store, the defendant had gone inside the store. The officers entered the store and asked the defendant to accompany them outside. The three exited the store to the sidewalk. One of the officers then asked the defendant to remove his shoes. ¹ The officer then noticed a bulge in the defendant's left pants pocket. He touched the bulge and asked the defendant, "What's this?" The defendant tried to flee, but the two officers almost immediately grabbed him. The three struggled. During the struggle the defendant removed several bags containing heroin from his pants pocket and stuffed them into his mouth. By this time the back-up officers had arrived. One of the officers shouted that the defendant was eating something. Another officer then applied a choke-hold to the defendant, causing him to spit out eight bags of heroin. The defendant was subdued and handcuffed.

The motion judge ruled that the defendant was illegally seized when the police officers asked him to step out of the store and to remove his shoes. The judge reasoned that, although there may have been reasonable articulable facts to justify a brief detention of the defendant to conduct a threshold inquiry, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974), the officers did not have probable cause to seize the defendant. The judge concluded, however, that, despite the fact that an initial, illegal seizure occurred, intervening events, sufficiently detached from the illegal seizure, established probable cause to arrest the defendant, and therefore the seizure of the evidence was proper.

We conclude that, although the officers may have had a reasonable suspicion that the defendant had committed a crime which would warrant an investigatory stop, the initial seizure of the defendant, i.e., the officer's request that the defendant remove his shoes, exceeded the scope of investigatory stops outlined in Terry, supra, and its progeny. Moreover, the initial seizure was unsupported by probable cause. Thus, the seizure violated the defendant's rights under art. 14 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Bottari, 395 Mass. 777, 482 N.E.2d 321 (1985). We disagree with the judge, in that we believe that subsequent events did not establish probable cause to arrest the defendant. Accordingly, the defendant's motion to suppress was denied improperly.

At the outset we note that the officer's request that the defendant remove his shoes clearly constituted a seizure within the meaning of art. 14. ² An objective standard is used to determine when a seizure has occurred: "a person has been 'seized' ... if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) ("stopping a car and detaining its occupants constitutes a seizure"); Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984) (seizure occurs when circumstances of an encounter are so intimidating that a reasonable person would believe that he was not free to leave); Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (physical detention of defendant to determine identity implicates Fourth Amendment rights); Terry, supra 392 U.S. at 16, 88 S.Ct. at 1877 ("It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person"). Cf. Commonwealth v. Riggins, 366 Mass. 81, 86-87, 315 N.E.2d 525 (1974).

A recent United States Supreme Court case contemplates an objective standard within an analogous factual pattern. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), detectives approached the defendant in an airport terminal, identified themselves as narcotics officers, and asked the defendant to accompany them to a small office. The detectives retained the defendant's airline ticket and identification throughout the encounter and obtained, and had possession of, the defendant's luggage. The Court held that such action was a seizure for purposes of the Fourth Amendment. Id. at 502, 503-504 n. 9, 103 S.Ct. at 1326, 1327-1328 n. 9. Royer cites the reasonable person test of Mendenhall, supra, thus reconfirming the application of an objective, rather than a subjective, standard. ³ Just as the retention of the defendant's airline ticket, identification, and luggage in Royer constituted a seizure, the removal of the defendant's shoes in the instant case does the same. A reasonable person whose shoes have been removed would not feel free to leave. The defendant was seized.

We turn now to the question whether the intrusiveness of the seizure was proportional to the degree of suspicion that prompted the intrusion. See Commonwealth v. Bottari, supra. Terry held that to be valid "[t]he scope of the [seizure] must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry, supra 392 U.S. at 19, 88 S.Ct. at 1878, quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967). ⁴ Courts must inquire "whether the officer's action ... was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, supra 392 U.S. at 20, 88 S.Ct. at 1879.

In Florida v. Royer, supra, the Court also addressed the question of the proper scope of a stop. A majority of the Royer Court believed that there was reasonable suspicion for a stop. A plurality, however, ruled that the limits of a Terry-type stop had been exceeded. The detectives retained possession of the defendant's ticket and identification, and obtained possession of his luggage. The Court stated: "The scope of the detention must be carefully tailored to its underlying justification.... [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Royer, supra 460 U.S. at 500, 103 S.Ct. at 1325. ⁵

Thus, Terry and Royer state a "principle of proportionality." See United States v. $84,000 U.S. Currency, 717 F.2d 1090, 1104 (7th Cir.1983), cert. denied sub nom. Holmes v. United States, --- U.S. ----, 105 S.Ct. 131, 83 L.Ed.2d 71 (1984); United States v. Berryman, 717 F.2d 651, 657 (1st Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984). The degree of intrusiveness on a citizen's personal security, including considerations of time, space, and force, must be proportional to the degree of suspicion that prompted the intrusion. See Bottari, supra.

We believe that the officers exceeded the bounds of an investigatory stop when they requested that the defendant remove his shoes. Unlike Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), this seizure was not a limited intrusion designed to ensure the officers' safety. There was no evidence that the officers feared for their safety in asking the defendant to remove his shoes. While, on the basis of...