Com. v. Grant

• Decision Date: 07 February 2003
• Docket Number: No. 01-P-1033.,01-P-1033.
• Citation: 783 N.E.2d 455,57 Mass. App. Ct. 334
• Parties: COMMONWEALTH v. Oneil G. GRANT.
• Court: Appeals Court of Massachusetts

783 N.E.2d 455

57 Mass. App. Ct. 334

COMMONWEALTH v. Oneil G. GRANT.

No. 01-P-1033.

Appeals Court of Massachusetts, Norfolk.

Argued October 8, 2002.

Decided February 7, 2003.

Further Appellate Review Denied April 2, 2003.

Andrew T. Blume, Wellesley, for the defendant.

James A. Reidy, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, KASS, & MILLS, JJ.

MILLS, J.

The defendant was stopped as part of an early morning police roadblock¹ in an attempt to apprehend one or more suspects who had been involved in a shooting incident.² The defendant was questioned, and after police observed a weapon in his vehicle, he was arrested. In a jury-waived trial, he was found guilty of carrying a firearm without a license, G.L. c. 269, § 10(a), and defacing a firearm serial number, G.L. c. 269, § 11C. He contends that (1) his inculpatory admissions and the weapon should have been suppressed because the roadblock constituted an illegal seizure in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights; and (2) there was insufficient evidence that he defaced the serial number of a firearm. We affirm.

1. The roadblock. We summarize the facts found by the motion judge with respect to the roadblock, which, for context, we supplement with uncontested testimony from the suppression hearing, see Commonwealth v. Torres, 433 Mass. 669, 670, 745 N.E.2d 945 (2001), mindful that assessment of witness credibility is the province of the motion judge. See Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 639, 747 N.E.2d 1253 (2001); Commonwealth v. Scott, 52 Mass.App.Ct. 486, 492, 754 N.E.2d 728 (2001), S.C., 57 Mass.App.Ct 36, 781 N.E.2d 27 (2003).³ At 3:40 A.M. on October 31, 1999, Lieutenant Arthur Sullivan of the Randolph police department received a radio report of multiple gun shots and numerous 911 calls in the Chestnut Circle area of Randolph. Chestnut Circle is a residential cul-de-sac, running off Chestnut Street, which in turn is accessed from Route 28, North Main Street, the main thoroughfare in Randolph. Between Chestnut Circle and North Main Street, a number of streets run off Chestnut Street. Sullivan proceeded to the area and, when traveling west down Chestnut Street toward Chestnut Circle, noticed several vehicles heading east at a high rate of speed. The occupant of one vehicle waved Sullivan to stop and exclaimed, "They're shooting up the place." The scene at the end of Chestnut Circle was described as chaotic, with at least fifty people standing around. Sullivan testified that he had no idea who was involved in the shooting, whether anyone was injured, or whether the shooters⁴ were escaping. In front of the house that appeared to be at the center of the disturbance, Sullivan saw several empty shell casings. He radioed for backup, advising officers to use extreme caution because firearms were involved. He ordered officers to stop all vehicles leaving the scene and to question the occupants, because he was concerned that someone had been shot and that the shooters might be fleeing the scene by car.

Officer Michael Tuitt also responded to the 3:40 A.M. radio dispatch. There was heavy traffic as he approached the intersection of North Main Street and Chestnut Street, and he narrowly avoided collision with a sport utility vehicle that failed to stop at a red light. He pursued and stopped the vehicle. After observing other vehicles exceeding the speed limit and failing to stop for the red light, Tuitt positioned his cruiser across the eastbound lane of Chestnut Street, close to the intersection of North Main Street, one-quarter to one-half mile from Chestnut Circle, in an attempt to stop traffic and prevent an accident.

After positioning his cruiser, and before exiting, Tuitt heard Sullivan's radio broadcast ordering "everyone questioned leaving the scene." While the police knew there had been a shooting, Tuitt testified that they did not know whether those involved in the shooting were on foot or in a car fleeing the scene. Concerned that any one of the vehicle occupants could have been involved in the shooting, Tuitt began questioning the occupants of the vehicles that had been stopped, which by then numbered between ten and fifteen.

After the occupants of the first two cars were questioned and allowed to go on their way, Tuitt proceeded to approach the third car, which contained four male occupants, two in the front seat and two in the rear. Tuitt, believing his own safety would best be preserved if he questioned the occupants separately, asked the driver to exit and proceeded to question him. Tuitt next asked the front seat passenger to exit and, as he did, Tuitt noticed the butt end of a firearm beneath the front passenger seat, which amplified his concern for his safety, and he ordered the two rear seat occupants (one of whom was the defendant) to exit, so that the four individuals would be distanced from the handgun. All four were then patted down, handcuffed, and arrested. Tuitt then called his supervisor, a required local police procedure when a firearm is involved. An M38 semiautomatic pistol with a defaced serial number was seized from the vehicle.

2. Constitutional setting. There is no disagreement that "[a] seizure occurs under the Fourth Amendment and art. 14 whenever a motor vehicle is stopped by an agent of government." Commonwealth v. Rodriguez, 430 Mass. 577, 579, 722 N.E.2d 429 (2000). "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' under the Fourth Amendment." Id., quoting from Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "Generally, searches and seizures must be conducted pursuant to a warrant based on probable cause .... Where obtaining a warrant is not practical, searches and seizures may be proper if probable cause or reasonable suspicion exists." Id., citing Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Ordinarily, "law enforcement officers must possess at least articulable suspicion before stopping a vehicle." Commonwealth v. Rodriguez, supra at 580, 722 N.E.2d 429, quoting from United States v. Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). There are, however, "limited exceptions" to the "requirement that seizures be based on probable cause or reasonable suspicion." Id. at 579, 722 N.E.2d 429. Under the Fourth Amendment, roadblocks to apprehend fleeing dangerous suspects may be among the limited public safety intrusions permitted law enforcement officers who do not possess "articulable suspicion" to stop a particular vehicle. See id. at 580 n. 2, 722 N.E.2d 429, citing United States v. Harper, 617 F.2d 35, 40-41 (4th Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). Although the Supreme Judicial Court has "not applied exactly the same analysis as Federal courts, [the court has] allowed limited exceptions to the reasonable suspicion requirement where an intrusion is limited and serves a pressing public purpose." Id. at 580-581, 722 N.E.2d 429 (footnote omitted). Whether this analysis is called a "limited exception" or a balancing test, we consider the present case to be one not requiring particularized suspicion.

3. Discussion. In holding this roadblock constitutionally valid, our reasons are somewhat different from those of the motion judge, who apparently concluded that the Commonwealth had satisfied the "reasonable suspicion" standard. See generally Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990), citing Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). While the present facts do establish "reasonable suspicion" as to the occurrence of a crime, that suspicion was not particularized with respect to any individual suspect or vehicle. To the contrary, the facts indicate this was a deliberate emergency police effort to apprehend one or more fleeing suspects as to whom the police had no physical description, no information as to their number, and indeed no indication as to whether they were fleeing on foot or by vehicle.

An emergency stop of numerous vehicles aimed at apprehending a fleeing, dangerous suspect requires a somewhat different constitutional analysis from a preplanned, "blueprinted" roadblock at a predetermined location, such as a sobriety checkpoint or a drug interdiction roadblock. Unlike the latter, the emergency model roadblock has not been directly addressed by Massachusetts courts. However, in Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Supreme Court, considering a preplanned roadblock, and emphasizing that it had never approved a checkpoint program "whose primary purpose was to detect evidence of ordinary criminal wrongdoing," acknowledged the existence of "limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion." The Court stated that "there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, ... the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up ... to catch a dangerous criminal who is likely to flee by way of a particular route." Id. at 44, 121 S.Ct. 447.

As the Supreme Judicial Court noted in Commonwealth v. Rodriguez, 430 Mass. at 580 n. 2, 722 N.E.2d 429, the Fourth Circuit has also held, applying a "reasonableness" analysis, that a roadblock, established for the purpose of apprehending suspects fleeing along the only access road leading from the site of a preplanned drug raid, was permissible under the Fourth Amendment. See United States v. Harper, 617 F.2d at 40-41. In Harper, the court emphasized that the purpose of the stops was to...