Com. v. Depina

• Decision Date: 10 March 2010
• Docket Number: SJC-10558
• Citation: 456 Mass. 238,922 N.E.2d 778
• Parties: COMMONWEALTH v. Nathaniel DEPINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

922 N.E.2d 778

456 Mass. 238

COMMONWEALTH v. Nathaniel DEPINA.

SJC-10558

Supreme Judicial Court of Massachusetts, Bristol.

Argued November 5, 2009.

Decided March 10, 2010.

Paul W. Patten for the defendant.

Rachel J. Eisenhaure, Assistant District Attorney (David J. Gold & Shoshana E. Stern, Assistant District Attorneys, with her) for the Commonwealth.

Jonathan E. Lowy & Daniel R. Vice, Washington, D.C., & Scott Harshbarger, Boston, Allison K. Jones, San Diego, CA, & Gil N. Peles, Los Angeles, CA, for Brady

Center to Prevent Gun Violence & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

On August 19, 2008, a jury convicted the defendant of the illegal carrying of a firearm, in violation of G.L. c. 269, § 10 (a), and the unlawful carrying of a loaded firearm, in violation of G.L. c. 269, § 10 (n).¹ On appeal, the defendant argues that (1) the motion judge erred in denying his motion to suppress the loaded firearm; (2) the trial judge's admission in evidence of a ballistic expert's certificate of examination regarding the firearm and ammunition violated his right to confrontation as set forth in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); and (3) his convictions violated his individual, constitutional right to bear arms as set forth in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). We granted the defendant's application for direct appellate review. We now affirm the defendant's convictions.²

1. The motion to suppress. a. Facts. We summarize the facts concerning the stop of the defendant and the seizure of the firearm as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing.³

On the evening of July 24, 2007, State Troopers Anthony Watson and Mark Cyr, together with Federal Bureau of Investigation (FBI) Special Agent Michael Doyle, were assigned to duty in New Bedford as members of a joint State police-FBI gang task force. At approximately 9:46 P.M., while they were near the United Front housing project, they heard a broadcast of a police officer's request for an ambulance to treat the victim of a shooting that had just occurred in the immediate vicinity. Immediately thereafter, a State police dispatcher broadcast a report that a white or Hispanic male wearing a white T-shirt and blue shorts had been seen running down Chancery Street, near where the shooting had occurred.

The information regarding the person fleeing the scene came from an anonymous caller to an emergency 911 line. She told police that she was "on Middle Street" and had heard two to three shots on Chancery Street, in her "back yard." She had not seen the shooting, but she had seen a person running toward Kempton Street after the shooting. She described the fleeing person as a "tan" colored "kid"; she said he was wearing a white shirt, blue "jean" shorts, and a hat.

Traveling in an unmarked police cruiser, the three officers searched for the suspected shooter in the streets immediately surrounding the housing project. The officers stopped two men wearing white T-shirts and blue shorts, each at different locations, but quickly determined that neither had been involved in the shooting. As the officers drove down Union Street, Trooper Cyr observed a third person on Emerson Street wearing a white T-shirt and dark shorts, within two to three blocks of the scene of the reported shooting. The officers drove south on Emerson Street, stopped their cruiser in the middle of the street near the defendant, and left the vehicle to approach the defendant. The defendant, who had been heading south on a sidewalk on Emerson Street, pedaling a foot scooter, reversed direction and began traveling north on Emerson Street, away from the approaching officers.

The officers were dressed in dark T-shirts marked with the words "Gang Unit" on the back, blue jeans, and sneakers. Trooper Watson and Trooper Cyr's T-shirts both bore clearly marked State police emblems on the front; Special Agent Doyle's T-shirt was marked "FBI" on the front. All three wore gun belts that held firearms, police radios, and handcuffs. Trooper Watson and Trooper Cyr also displayed their State police badges on their belts.

As they advanced toward the defendant, Trooper Watson said to him, in substance, in a "normal voice," "Can I talk to you? Can you come over here?" The defendant stopped, looked over his shoulder at Trooper Watson, and made quick motions with his hands in the area of his waistband. The officers then heard an object hit the ground with the sound of "[m]etal on pavement," and Trooper Watson immediately seized the defendant's hands and drew the defendant toward him and away from the object the defendant had dropped. Using a flashlight, Special Agent Doyle located the object and called out that the defendant had dropped a gun. Trooper Watson and Trooper Cyr handcuffed the defendant, placed him under arrest, and advised him of his Miranda rights.

b. Discussion. In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error. Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995). Because we find no clear error of fact that is material, our legal analysis focuses on "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 Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

The defendant argues that he was seized (or stopped in the constitutional sense) by the police once Trooper Watson asked to speak with him and that, at that moment, the police did not have reasonable suspicion to justify the stop. The Commonwealth contends that the stop did not occur until Trooper Watson grabbed the defendant's hands after hearing the metallic clang of a dropped firearm.

The police do not seize a person whenever they seek to question him. Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996) ("not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification"). Rather, a person is seized under art. 14 of the Massachusetts Declaration of Rights "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Barros, 435 Mass. 171, 173-174, 755 N.E.2d 740 (2001), quoting United States v. Mendenhall, 446 U.S. 544 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). "[T]he police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away." Commonwealth v. Barros, supra at 174, 755 N.E.2d 740. Here, considering all the circumstances, the motion judge was correct in determining that the defendant was "seized" by the police when, after the three officers converged on him on Emerson Street, Trooper Watson asked the defendant to "come over here." When three armed officers wearing "Gang Unit" shirts emerged from a single vehicle and pursued the defendant, continuing to close in on him even after he reversed direction to avoid them, a reasonable person would have believed that he was not free to ignore Trooper Watson's request that he "come over here" to answer their questions.⁴ See id. at 175-176, 755 N.E.2d 740; Commonwealth v. Stoute, supra at 786, 789, 665 N.E.2d 93.

The question remains whether the Commonwealth has met its burden of establishing that, at the time Trooper Watson called to the defendant, the stop was justified by reasonable suspicion, based on specific and articulable facts, that the defendant had committed, was committing, or was about to commit a crime. See Commonwealth v. DePeiza, 449 Mass. 367, 369-371, 868 N.E.2d 90 (2007). See also Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Absent such a justification, the stop was unlawful, and the gun recovered by the police should have been suppressed as the fruit of an unlawful seizure. See Commonwealth v. Loughlin, 385 Mass. 60, 63, 430 N.E.2d 823 (1982); Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978).

When police officers on the street stop a defendant in reliance on a police dispatch alone, the stop is lawful only if the Commonwealth establishes both that the information on which the dispatch was based had sufficient indicia of reliability, and that the description of the suspect conveyed by the dispatch had sufficient particularity that it was reasonable for the police to suspect a person matching that description. See Commonwealth v. Lopes, 455 Mass. 147, 155, 914 N.E.2d 78 (2009). See also Commonwealth v. Riggieri, 438 Mass. 613, 615-616, 782 N.E.2d 497 (2003); Commonwealth v. Mercado, 422 Mass. 367, 370-371, 663 N.E.2d 243 (1996). "To establish that the transmitted information bears adequate indicia of reliability, the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test)." Commonwealth v. Lopes, supra at 155-156, 914 N.E.2d 78. See Commonwealth v. Upton, 394 Mass. 363, 374-375, 476 N.E.2d 548 (1985). "Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). "Independent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Riggieri, supra at 615-616 782 N.E.2d 497, quoting Commonwealth v....