Com. v. Grinkley

• Citation: 44 Mass.App.Ct. 62,688 N.E.2d 458
• Decision Date: 16 December 1997
• Docket Number: No. 96-P-1131,96-P-1131
• Parties: COMMONWEALTH v. Lawrence J. GRINKLEY.
• Court: Appeals Court of Massachusetts

Page 458

688 N.E.2d 458

44 Mass.App.Ct. 62

COMMONWEALTH v. Lawrence J. GRINKLEY.

No. 96-P-1131.

Appeals Court of Massachusetts,

Middlesex.

Argued May 28, 1997.

Decided Dec. 16, 1997.

Eric J. Weinstein, Framingham, for defendant.

Ann T. McGonigle, Assistant District Attorney, for the Commonwealth.

Before BROWN, SMITH and LAURENCE, JJ.

LAURENCE, Justice.

Responding to a telephone report about black youths with a gun in a public playground, investigating Framingham police officers stopped and pat-frisked the defendant, Lawrence J. Grinkley. The frisk produced no gun but did find two prescription bottles in Grinkley's pants pocket that contained twenty-eight bags of crack cocaine. A jury convicted Grinkley of possession of a class B substance with intent to distribute (G.L. c. 94C, § 32A(a )) and related offenses. He argues on appeal that a judge erroneously denied his motion to suppress the seized cocaine because the Commonwealth failed to establish that the police stop was based upon reasonable suspicion to believe that he had committed, was committing, or was about to commit a crime. He also complains that the police exceeded the reasonable scope of a permissible limited search. We agree with Grinkley's challenge to the stop and reverse the judgments of conviction.

The facts on which the motion judge ruled were presented through the testimony of the sole witness at the suppression hearing, Framingham police Sergeant Kevin Slattery. At approximately 8:20 P.M. on July 13, 1995, Slattery received word from the police dispatcher

"that a woman, whose name was given, was calling stating that she had seen a gun down at the Mary Dennison Field, on Beaver Street. That there was a group of black youths, and Hispanic youths there. That the group of black youths were by the tennis courts, and that they had a gun. And that she thought there was going to be a fight."

Several officers were sent to the area to investigate, and Slattery went independently "to assist." The Mary Dennison Field is a large, public recreational facility that contains playgrounds, tennis courts, lighted basketball courts (which are "quite a distance away" from the tennis courts), and softball diamonds. It is a popular summer "hangout" for youths in a neighborhood that is racially and ethnically mixed but is not (at least was not so described by Slattery) a high-crime area. Slattery parked his police vehicle in a funeral home parking lot at the rear of the field opposite the Beaver Street side so as to be in a position to intercept "anybody [who] came running."

As he watched from his location, he noticed a group of Hispanic youths gathered at the distant basketball courts. He also saw several officers approach a group of black youths who were by the tennis courts. ¹ As the officers approached, the group "suddenly broke up ... [a]nd they started walking toward the wood[s]" at the edge of the field. Slattery thought that they were walking "quickly" but conceded that they "weren't running." He heard his fellow officers begin "shouting, and ... waving the kids back to where they ... had been." Some of the youths entered the woods but then reemerged to join the others, who had stopped and returned in response to the police shouting and waving. ² Slattery then left his position in the parking lot and walked by the two groups into that part of the woods where he had seen some of the youths go, in order to determine whether they had "dumped the gun" there. Finding no gun, he went back to make sure things were under control and to assist the other officers in "pat[ting] the group down."

Only then did Slattery notice Grinkley, as he was being questioned by another officer. Slattery recalled that he had previously arrested Grinkley for assault and battery with a dangerous weapon (a knife), an arrest that resulted in Grinkley's conviction. Slattery also recognized another of the youths as someone whom he had arrested, and who was subsequently convicted, for armed robbery with a handgun. Slattery heard Grinkley give the inquiring officer a name Slattery knew to be false. When Slattery challenged Grinkley's response, Grinkley persisted in his refusal to admit his real name. At that point Slattery, concerned that the reported gun had not been discovered, "went to pat him down." ³ Grinkley resisted the pat, pulling back twice and guarding his right pocket area with his hand, despite Slattery's order to keep his hands in the air. Pushing Grinkley's hand away, Slattery succeeded in putting his hand on the pocket and felt a hard, round, cylindrical object that he thought could be a weapon. Slattery then pulled out of the pocket two plastic, "orange, semi-transparent" prescription bottles, one on top of the other, that contained labels for ibuprofen tablets bearing Grinkley's name.

As Slattery "started looking ... at the bottles more carefully," Grinkley denied that they were his. Slattery immediately realized that what he had found was not a weapon or a danger to the officers. Holding the bottles in front of him and spinning them around, he saw that they contained small glassine bags with a white substance in them as well as tablets. Based on his previous experience as a narcotics investigator, Slattery recognized this as a common form of packaging crack cocaine for street level sales and opened the bottles. Grinkley suddenly started running toward the woods but was apprehended and arrested after a struggle. ⁴

Based upon Slattery's essentially uncontested testimony, the motion judge concluded that the incriminating drugs had been obtained as the result of a valid investigative stop and frisk. That conclusion did not, however, find evidentiary support in Slattery's testimony or the reasonable inferences therefrom. ⁵ The judge erred most critically in ruling that the informant's tip constituted a sufficient basis for reasonable suspicion to stop the defendant, in finding that Slattery had "corroborate[d] much of the informant's information" at the scene, and in finding that the stop of Grinkley was justified because Slattery recognized Grinkley and another youth. ⁶

In "stop and frisk" cases, the primary inquiry is whether a police officer may make the stop because he has "reason to suspect that a person has committed, is committing, or is about to commit a crime." Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the officer's suspicion depends upon the existence of "specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. A mere 'hunch' is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one," id. at 406, 318 N.E.2d 895, "view[ing] the circumstances as a whole." Commonwealth v. Stoute, 422 Mass. 782, 790, 665 N.E.2d 93 (1996). ⁷

When police suspicion arises not from officers' own observations but from an informant's tip, as here, the Commonwealth has the burden of establishing both the informant's reliability and the basis of her knowledge, although police corroboration may make up for deficiencies in one or both of those factors. Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). ⁸ The motion judge determined that the tip here satisfied those requirements because it came "from a named informant who gives a detailed description of two groups of youths at a specific location (tennis court) within a park, a specific time and the fact that one of them had a gun." The judge's conclusion that the tipster's basis of knowledge was established by her recitation of "specific details" is questionable on this record.

It might be inferred that the tipster had, as she asserted, personally observed the matters she recounted, and that there was a need for the police to act quickly because of the perceived threat to public safety. Those inferences might justify brevity and a lesser degree of detail. See Commonwealth v. Anderson, 366 Mass. 394, 399, 318 N.E.2d 834 (1974). Nevertheless, the information supplied here as to the individuals involved was neither specific nor detailed. Other than the report of a gun (which we discuss below), the tip was merely generally descriptive of race, ethnic identity, and location in a public place normally frequented by youths--all obvious, nonincriminating facts that would be easily observable to any bystander. Such data do not bespeak the kind of "inside information" that provides a legitimate inference of personal knowledge. See Commonwealth v. Lyons, 409 Mass. at 20-21 & n. 5, 564 N.E.2d 390. Unparticularized racial descriptions, devoid of distinctive or individualized physical details--even were they of a certain person and not, as here, of an entire group--cannot by themselves provide police with adequate justification for stopping an individual member of the identified race who happens to be in the general area described by the informant. See Commonwealth v. Spence, 403 Mass. 179, 181, 526 N.E.2d 1054 (1988); Commonwealth v. Cheek, 413 Mass. 492, 495-496, 597 N.E.2d 1029 (1992). Contrast Commonwealth v. Cast, 407 Mass. 891, 896-897, 556 N.E.2d 69 (1990) (unnamed informant's basis of personal knowledge shown by the facts that he "named the defendant, described his appearance, gave his phone number, knew of his national origin and citizenship status, how he had obtained that status as a result of marriage to a Massachusetts native, and described the anglicization of his name, his pickup truck, and his employment situation ... [and his use of] luxury automobiles and expensive hotels in conducting his business ... [which] level of detail [reflected] ... 'direct knowledge ... based on personal observation and contacts which went materially beyond "a casual rumor ... or [knowledge of] ... an individual's general reputation" ' "); Commonwealth v. Fleming, 37 Mass.App.Ct. 927,...