Com. v. Cheek

• Decision Date: 20 August 1992
• Citation: Com. v. Cheek, 597 N.E.2d 1029, 413 Mass. 492 (Mass. 1992)
• Parties: COMMONWEALTH v. Zan E. CHEEK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1029

597 N.E.2d 1029

413 Mass. 492

COMMONWEALTH v.Zan E. CHEEK.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 7, 1992.

Decided Aug. 20, 1992.

Nancy A. Dolberg, Boston, for defendant.

Brian J. Carney, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.LIACOS, Chief Justice.

The defendant, Zan E. Cheek, stands indicted for the unlawful carrying of a handgun, possession of ammunition, and possession of marihuana with intent to distribute.After a hearing, a Superior Court judge denied the defendant's motion to suppress the evidence seized from him after police stopped and frisked him in the Roxbury section of Boston.The defendant applied to a single justice of this court for leave to appeal the denial of his motion.SeeMass.R.Crim.P. 15(b)(2), 378 Mass. 882(1979).The single justice allowed the defendant's application for leave to appeal and reported the appeal to the full bench.We reverse the judge's order denying the defendant's motion to suppress.

We summarize the facts found by the motion judge.On the evening of November 12, 1990, Boston police Officers Andrew Gainey and Paul Murphy and State Trooper Kerry McHugh were on routine patrol in the Grove Hall section of Roxbury.At approximately 11:20 P.M., the officers received the following bulletin over their police radio:

"16 Ruthven Street, the second floor, stab victim stabbed to the back supposed to be conscious.

"For a suspect we have a black male with a black 3/4 length goose known as Angelo of the Humboldt group.We'll get further info later."

Following receipt of the bulletin, Officers Gainey and Murphy and Trooper McHugh began to search the Grove Hall area for a suspect in the stabbing.Subsequently, the officers observed a black male (the defendant) walking on a street approximately one-half mile from the scene of the reported stabbing.The defendant was wearing a dark-colored three-quarter length goose-down jacket.

The police approached the defendant, and Officer Murphy asked him his name, to which he responded "Zan" or "Ann."His response was not clear to the officers because he had his coat zippered up over his mouth.The defendant's hands were in his coat pocket.Officer Murphy frisked the defendant and retrieved a .38 caliber handgun from his front coat pocket.Officer Murphy placed the defendant under arrest after he failed to produce a license to carry the gun.A subsequent booking search of the defendant revealed seventeen plastic bags of marihuana.¹

Upholding the search of the defendant, the motion judge did not consider whether the police had probable cause to search the defendant but, rather, concluded that the police officers were justified in stopping the defendant for a limited investigatory inquiry.²The defendant argues that the motion judge's ruling was erroneous because it violated his rights under art. 14 of the Declaration of Rights of the Massachusetts Constitution and the Fourth Amendment to the United States Constitution.We agree, but need focus only on the defendant's arguments under art. 14.

In determining whether a police investigatory stop is justified under art. 14, this court has held that the police must have "reasonable suspicion" to conduct the stop.Commonwealth v. Lyons, 409 Mass. 16, 18, 564 N.E.2d 390(1990).SeeCommonwealth v. Carrasquillo, 30 Mass.App.Ct 783, 573 N.E.2d 1014(1991).To meet the "reasonable suspicion" standard under Lyons, the officer's suspicion must be grounded in " 'specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a 'hunch.' "Lyons, supra409 Mass. at 19, 564 N.E.2d 390, quotingCommonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344(1984).Where the police rely on a police radio call to conduct an investigatory stop, under both Federal and State law, the Commonwealth must present evidence at the hearing on the motion to suppress on the factual basis for the police radio call in order to establish its indicia of reliability.SeeCommonwealth v. Fraser, 410 Mass. 541, 545-546, 573 N.E.2d 979(1991)(Fourth Amendment);Commonwealth v. Antobenedetto, 366 Mass. 51, 55, 315 N.E.2d 530(1974)(Fourth Amendment);Commonwealth v. Wainio, 7 Mass.App.Ct. 863, 385 N.E.2d 1023(1979);Commonwealth v. Morales, 4 Mass.App.Ct. 779, 341 N.E.2d 693(1976).See alsoCommonwealth v. Lyons, supra409 Mass. at 19, 564 N.E.2d 390.

In this case, the Commonwealth presented no evidence as to the source of the information on which the radio call was based.The motion judge determined that the police reasonably could infer that the informant who provided the information broadcast over the police radio was a police officer who responded to the scene of the stabbing.We need not rule on whether the motion judge was correct in drawing this inference, for even if we were to assume that the radio call carried the requisite indicia of reliability, the officers did not possess sufficient specific and articulable facts to establish a reasonable suspicion that the defendant had committed the crime.

The motion judge relied on several factors in addition to the radio broadcast to support the conclusion that the police acted reasonably in stopping the defendant.These factors include the judge's findings that the defendant's jacket matched the description given over the radio broadcast, that the officers spotted the defendant"in proximity" to where the stabbing occurred, and, finally, that the area where the defendant was stopped was known to the officers as a "high crime area."³

These factors could not have provided the officers with reasonable suspicion that the defendant was the perpetrator of the reported stabbing.Significantly, the description of the suspect as a "black male with a black 3/4 length goose" could have fit a large number of men who reside in the Grove Hall section of Roxbury, a predominantly black neighborhood of the city.The officers possessed no additional physical description of the suspect that would have distinguished the defendant from any other black male in the area such as the suspect's height and weight, whether he had facial hair, unique markings on his face or clothes, or other identifying characteristics.That the jacket matched was not enough to single him out.Moreover, the Commonwealth presented no evidence to establish that a " 3/4 length goose" jacket, the sole distinctive physical characteristic of the garment, was somehow unusual or, at least, uncommon as an outer garment worn on a cold fall night.

Although the officers properly may consider that the defendant was one-half mile from the scene of the reported stabbing, taken together with the other facts in this case, it was not enough to support a reasonable suspicion.That the defendant was walking in a residential area before midnight one-half mile from the...