Com. v. Emuakpor, 01-P-0963.

• Decision Date: 23 January 2003
• Docket Number: No. 01-P-0963.,01-P-0963.
• Citation: 782 N.E.2d 7,57 Mass. App. Ct. 192
• Parties: COMMONWEALTH v. Ken EMUAKPOR (and other comanion cases).<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

782 N.E.2d 7

57 Mass. App. Ct. 192

COMMONWEALTH v. Ken EMUAKPOR (and other comanion cases).¹

No. 01-P-0963.

Appeals Court of Massachusetts, Bristol.

Argued May 13, 2002.

Decided January 23, 2003.

COPYRIGHT MATERIAL OMITTED

Steven E. Gagne, Assistant District Attorney, for the Commonwealth.

Paul L. Carlucci, Franklin, for Christopher Jackson.

Daniel M. Rich, Norton, for Ken Emuakpor.

Richard W. Foster for Archibald Kollie.

Edward F. Sullivan, Jr., for Quincy Jackson, was present but did not argue.

Present: KANTROWITZ, DREBEN, & McHUGH, JJ.

McHUGH, J.

Each of the four defendants was indicted for armed robbery and armed assault with intent to rob. At the appropriate point in pretrial proceedings, each filed a motion to suppress evidence seized by the police. After a hearing, a judge in the Superior Court concluded that the police had had an insufficient basis for stopping the defendants' automobile in the vicinity of, and minutes after, an armed robbery in a nearby shopping mall, and consequently allowed the motions. Thereafter, a single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to take an interlocutory appeal, and reported the matter to this court. We reverse the suppression order and remand these cases to the Superior Court for further proceedings.

The facts bearing on whether police had reasonable suspicion for stopping the defendants' car, as found by the motion judge and as supplemented by uncontested testimony at the suppression hearing, see Commonwealth v. Rivera, 33 Mass.App.Ct 311, 312, 599 N.E.2d 245 (1992), are as follows; In the early evening hours of December 10, 2000, shoppers at the Emerald Square Mall (Mall) in North Attleborough were robbed at gunpoint. North Attleborough police responded to the scene and, after speaking with the victims, relayed to their headquarters by radio the following initial information: the assailants were two black males; one was armed with a handgun; one was wearing an army jacket and a black hood; the two had fled in an older, grey, two-door vehicle.

As the robbery occurred, Attleboro police Detective Timothy Cook was idling his unmarked cruiser in a parking lot adjacent to Route 1 about one mile south of the Mall and about one-half mile south of the North Attleborough-Attleboro town line. He heard his shift commander broadcast information substantially similar to the report from the scene, namely that there had been a robbery at the Mall, that two to three black males were involved, that one of the robbers had a gun, and that the robbers had fled the scene in an older, grey vehicle.²

From his experience, his knowledge of the area and his observation of the holiday shoppers then crowding Route 1, Detective Cook knew that it would take about five or six minutes to drive from the Mall to his position. He also knew that the only exit from the Mall emptied on to Route 1 where a driver had to choose between going north, toward Boston, or south, toward his position and, ultimately, to Rhode Island.

Between two and four minutes after he heard the first radio dispatch, Detective Cook saw what appeared to be an older, grey,³ four-door car containing three or four black males. The car was traveling south on Route 1, away from the Mall and toward Rhode Island. The car stopped at a traffic light and, when the light changed, moved forward, passing Detective Cook. As it did, he pulled out and started to follow.⁴

As the car continued south, Detective Cook observed that the occupants appeared relaxed. In his words, they were "kind of like chilling." Then, after a minute or two, Detective Cook saw Officer Paul Berard heading north toward the Mall in a marked cruiser, lights flashing.⁵ As Officer Berard passed the car Detective Cook was following, Detective Cook saw the occupants

"turn[] almost completely around in their seats to seela what that marked unit was doing.... Everybody was moving around.... [T]hey ... were moving. They were bending down, they were turning around, and they were really making an effort to see where that police car was going. And then a head would disappear and it would come back up."

Upon seeing the occupants' reaction to the passing police cruiser, Detective Cook decided to stop the car. His decision to do so was based on all of the in formation he had acquired over the radio, the time and place where the car appeared in relation to the time when the robbery took place and, in his words,

"[t]he fact that I made these observations of these guys when they seen this police cruiser going by. Their behavior changed immediately when they saw that police cruiser. When they're driving along, they're just kind of like chilling. I can see there's not a whole lot of movement in that car; and then all of a sudden this police car goes by and these guys are really on the move inside that car. To me, they were moving way too much. There was a lot more movement going on in that car than prior to that police car passing them."

Because he was in an unmarked car, Detective Cook radioed Officer Berard in his marked cruiser and asked for assistance. Officer Berard promptly arrived and, together, they stopped the suspect car. By the time they did, the officers had received information from their dispatcher that one of the suspects was wearing an army jacket, one or more spoke with a foreign accent, and that the robbers had taken jewelry, cellular telephones, and a wallet.

After the officers stopped the car, they approached it, guns drawn. As they got closer, Officer Berard saw a camouflage army jacket draped over the driver's shoulders. Then, as they got closer still and after they had ordered the occupants to keep their hands in plain view, both officers noticed that one of the vehicle's occupants spoke with an accent, and at least one was wearing jewelry.

Following those observations, the officers waited for about a minute or two until an additional officer arrived. Then the three officers ordered the four occupants, the defendants here, out the car, pat frisked them for weapons and placed them in handcuffs. Officer Berard searched the vehicle's interior and found a black pellet gun under the driver's front seat, a wallet belonging to one of the victims inside the glove box, and several cellular telephones. The victims were brought to the scene and identified some of the suspects as the robbers, at which point the defendants were formally placed under arrest. About five minutes had elapsed between the time Detective Cook first heard a broadcast about the robbery and the time he stopped the car.

Against that factual backdrop, the Commonwealth claims that the motion judge erred in allowing the defendants' motion to suppress. The Commonwealth argues that facts known to Detective Cook and his own observations were sufficient to warrant the stop, the resulting search of the vehicle, and the arrest of the defendants. In considering the Commonwealth's arguments, "we accept the motion judge's subsidiary findings of fact absent clear error, and we view, with particular respect, the conclusions of law that are based on them." Commonwealth v. Hill, 49 Mass.App.Ct. 58, 62, 726 N.E.2d 422 (2000), quoting from Commonwealth v. Kennedy, 426 Mass. 703, 705, 690 N.E.2d 436 (1998). However, the judge's rulings of law that "bear on issues of constitutional dimension, are open for reexamination." Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985). Indeed, "our 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. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

Applying those legal principles to the facts earlier recited, the initial stop was justified if the police had a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that the occupants of the grey car had committed, were committing, or were about to commit a crime. See Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984); Commonwealth v. Lyons, 409 Mass. 16, 18-19, 564 N.E.2d 390 (1990). See also United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The standard is objective and is satisfied when "the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Commonwealth v. Mercado, 422 Mass. at 369, 663 N.E.2d 243, quoting from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Deciding whether the police had enough facts to justify a stop is often a difficult process and this case, like many, is close. Factually, though, the case is very similar to Commonwealth v. Riggins, 366 Mass. 81, 86-87, 315 N.E.2d 525 (1974). There, the Supreme Judicial Court held that a stop was justified when the evidence showed that police officers knew there had been a robbery, that two male robbers were involved, and that the robbers had left the scene in a red car, and that the officers then observed the arrival of a red car at a time consistent with the time necessary to travel from the scene of the robbery to the place where the officers made their observations. We conclude that the facts known to Detective Cook were of the same kind and quality as the facts known to the officers in Riggins and require the same result. See Commonwealth v. Johnson, 6 Mass.App.Ct. 944, 945-946, 382 N.E.2d 1124 (1978).

That there were two minor differences between the appearance of the car in which the defendants were riding and the in formation police on the scene gave to the North Attleborough dispatcher does not affect this conclusion. As noted, police on the scene said that two people were involved in the robbery and the car police stopped held four. In addition, police at the Mall said that...