Com. v. Depeiza, 06-P-356.

• Decision Date: 02 June 2006
• Docket Number: No. 06-P-356.,06-P-356.
• Citation: 66 Mass. App. Ct. 398,848 N.E.2d 419
• Parties: COMMONWEALTH v. Michael DePEIZA.
• Court: Appeals Court of Massachusetts

848 N.E.2d 419

66 Mass. App. Ct. 398

COMMONWEALTH v. Michael DePEIZA.

No. 06-P-356.

Appeals Court of Massachusetts, Suffolk.

Argued April 4, 2006.

Decided June 2, 2006.

Robert E. Fox, Brighton, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, BROWN, & GRASSO, JJ.

GRASSO, J.

At issue is the propriety of a stop and patfrisk of the defendant. On appeal from his convictions of illegal possession of a firearm and ammunition, the defendant maintains that the motion judge erred in denying his motion to suppress the loaded handgun found by the police. We conclude that the stop, frisk, and seizure exceeded constitutional bounds.

1. Facts. We take the facts from the motion judge's findings and the undisputed testimony.¹ See Commonwealth v. Hinds, 437 Mass. 54, 55, 768 N.E.2d 1067 (2002), cert. denied, 537 U.S. 1205, 123 S.Ct. 1280, 154 L.Ed.2d 1049 (2003). Shortly after midnight on April 27, 2005, Officers John Conway and Dean Bickerton of the Boston police department were riding in an unmarked Ford Crown Victoria automobile in the vicinity of Babson and Delhi Streets in the Dorchester section of Boston. That locale is a "high crime" area where, on past occasions, shots had been fired and arrests had been made involving illegal handguns.

Conway and Bickerton had three years' experience each. Their prior police academy training included consideration of the ways in which individuals conceal and transport firearms. One such method — the straight arm method — employs a straightened arm pressed against the concealed weapon. Ten to fifteen percent of their twenty-five gun arrests in the previous eight months involved an initial observation of this method of carrying the firearm.

As Bickerton drove along Delhi Street, he and Conway observed the defendant walking along the sidewalk and talking on his cellular telephone, which he held in his left hand. The defendant's right arm was rigid, not moving, and pressed to his side as if he were holding something. Believing that the defendant's manner of walking warranted investigation, the officers turned the car around. As they approached the defendant, who was now on Babson Street, they observed that he continued to walk favoring his right side.

Without activating the vehicle's blue lights or siren, Bickerton pulled the vehicle alongside the defendant² and hailed him by a name chosen at random.³ Through the driver's side window, Bickerton asked the defendant if he was from the area, where he was coming from, and where he was going. The officers, who were dressed in plain clothes with badges displayed at chest level, noticed that the defendant was attempting to shield his right side from their view "as if trying to hide something." He avoided eye contact, looked left and right, and shifted his weight from side to side.

Concerned that the defendant was about to run, Bickerton stepped out of the car and approached him. The defendant told the officers that he lived in New York, but was staying with his family at an apartment on Delhi Street.⁴ To dispel the mistaken belief that he was "Dwayne," the defendant reached into his right pants pocket and produced identification, which he gave to Bickerton, who was an arm's length away.⁵ Conway then ran the identifying information through the vehicle's mobile computer with negative results for warrants or incriminating information.

As the defendant reached into his right pants pocket for identification, the officers noted that he continued to turn his right side from their view. They also observed that the right pocket of his jacket was tilted to the side, as if it held a heavy object — heavier than a cellular telephone, wallet, or pack of cigarettes. Believing that the defendant's jacket contained a firearm, Bickerton told the defendant that he intended to conduct a patfrisk.⁶ As Bickerton moved to frisk him, the defendant moved back to avoid being frisked. The officers told the defendant that they wanted to conduct a patfrisk for his safety as well as their own, and Bickerton again moved towards him. As the defendant again attempted to move away, Bickerton grabbed the defendant's right jacket pocket and felt the handle of a handgun. He reached into the defendant's pocket and seized the gun.⁷

2. Discussion. Assessment of witness credibility is the province of the motion judge. See Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), and cases cited; Commonwealth v. Gutierrez, 26 Mass.App.Ct. 42, 47, 522 N.E.2d 1002 (1988). 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. See Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

We conclude that the judge erred in his application of law to the facts found. See Commonwealth v. Vesna San, 63 Mass. App.Ct. 189, 190, 824 N.E.2d 469 (2005). Whether viewed from the standpoint of reasonable suspicion of criminal activity or that of reasonable apprehension of danger, the stop and immediate patfrisk of the defendant is not constitutionally supportable.⁸ a. Reasonable suspicion of criminal activity. A field encounter is not a constitutional stop. See Commonwealth v. Stoute, 422 Mass. 782, 785-789, 665 N.E.2d 93 (1996). "[O]fficers may make inquiry of anyone they wish and knock on any door, so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries." Commonwealth v. Murdough, 428 Mass. 760, 763, 704 N.E.2d 1184 (1999). At the same time, a tenuous balance exists between mere encounters and unconstitutional conduct. Citizens do not expect that police officers, whether handling routine traffic violations or engaging in casual street encounters, "will engage, in the absence of justification, in stalling tactics, obfuscation, [or] strained conversation" in the hope that sooner or later evidence of an arrestable offense will turn up. Commonwealth v. Gonsalves, 429 Mass. 658, 663, 711 N.E.2d 108 (1999). From a citizen's perspective such encounters may be rightfully viewed as nothing more than an arrogant and unnecessary approach to the constitutional line. Such encounters "may also pose unique hardships on minorities who, it has been argued, are often the subject of stops on pretext." Ibid.

Here, the officers' initial interaction with the defendant approached, but did not exceed, the boundary of a stop within the meaning of the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. Compare California v. Hodari D., 499 U.S. 621, 624-626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (stop occurs for Fourth Amendment purposes when police apply force or make show of authority to which the subject yields); Commonwealth v. Stoute, 422 Mass. at 785-789, 665 N.E.2d 93 (adopting "free to leave" standard of United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 [1980], for art. 14 purposes). The officers did not employ the talismans of blue lights, flashers, or sirens, or use words of command to cause the defendant to stop walking. See Commonwealth v. Grandison, 433 Mass. 135, 138, 741 N.E.2d 25 (2001). Their tone was conversational, not authoritative; they employed no weapons or other indicia of authority from which, at least as a matter of constitutional analysis, a reasonable person would not feel free to leave the encounter. See Commonwealth v. Rock, 429 Mass. 609, 612, 710 N.E.2d 595 (1999) (officer's intent to stop defendant not relevant to "free to leave" analysis, absent outward manifestation of that intent). Compare Commonwealth v. Barros, 435 Mass. 171, 174-176, 755 N.E.2d 740 (2001) (officer's second request to stop had "compulsory dimension" that first did not).

The Commonwealth concedes, correctly, that a stop for art. 14 purposes occurred when the officers declared their intent to frisk the defendant, as he was then no longer free to leave. See ibid. Contrary to the Commonwealth, however, we conclude that at that point of constitutional moment, the officers lacked reasonable suspicion that the defendant might be engaged in criminal activity. At that time, there was no objective factual basis for concluding that the defendant possessed a firearm, much less an unlicensed one. See id. at 177, 755 N.E.2d 740.

Prior to encountering the defendant, the officers had neither observed nor received any report of criminal activity, a firearm being brandished, or shots being fired. Compare Commonwealth v. Fraser, 410 Mass. 541, 546, 573 N.E.2d 979 (1991); Commonwealth v. Foster, 48 Mass.App.Ct. 671, 676-677, 724 N.E.2d 357 (2000); Commonwealth v. Johnson, 49 Mass.App.Ct 273, 275, 729 N.E.2d 306 (2000). That the defendant was walking in an area not unfamiliar with firearm violence is a factor in assessing reasonable suspicion of criminal activity. "But this factor must be considered with some caution because many honest, law-abiding citizens live and work in high-crime areas. These citizens are entitled to the protections of the Federal and State Constitutions, despite the character of the area." Commonwealth v. Holley, 52 Mass.App.Ct. 659, 663, 755 N.E.2d 811 (2001). The officers had no prior knowledge of, or dealings with, the defendant that would provide a basis for ascribing criminality to his actions. His activities do not take on a sinister cast merely because the street on which he is walking is located in Dorchester. See Commonwealth v. Cheek, 413 Mass. 492, 496-497, 597 N.E.2d 1029 (1992) (problems facing "`high crime area' will not be resolved any more readily by excluding the...