Com. v. Martinez

• Citation: 905 N.E.2d 592,74 Mass. App. Ct. 240
• Decision Date: 11 May 2009
• Docket Number: No. 07-P-1424.,07-P-1424.
• Parties: COMMONWEALTH v. Jose M. MARTINEZ.
• Court: Appeals Court of Massachusetts

905 N.E.2d 592

74 Mass. App. Ct. 240

COMMONWEALTH v. Jose M. MARTINEZ.

No. 07-P-1424.

Appeals Court of Massachusetts, Suffolk.

Argued November 4, 2008.

Decided May 11, 2009.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Rose E. King for the defendant.

Present: McHUGH, SIKORA, & RUBIN, JJ.

SIKORA, J.

The Commonwealth takes this interlocutory appeal from a Boston Municipal Court judge's grant of the defendant's motion to suppress evidence and statements. The issues arise from a stop, patfrisk, and arrest of the defendant on a porch and in the common area of an apartment house in the Mission Hill section of Boston. The patfrisk produced a handgun and ammunition. After the defendant's arrest, police officers also found a substance believed to be marijuana and a pill of apparent Class E character in the possession of the defendant. The defendant sought to suppress that evidence as well as statements made to officers after his arrest. We affirm the judge's order suppressing the evidence and statements. The ground of decision is that the stop and patfrisk lacked the support of reasonable suspicion.

Background. In the absence of clear error, the motion judge's findings are final. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). We supplement those findings with uncontested testimony from the motion hearing. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), and cases cited (appellate courts "may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony"). In this instance, the detail and clarity of those findings are especially helpful for the application of appropriate doctrine.

The only two witnesses to testify at the hearing were Boston police Officer Michael Flaven and Marielis Rosado, the defendant's female companion at the time of the events in question. At the end of the hearing the judge stated, "I found the officer to be very credible, and I thank him for his honesty.... I find him to be a credible, hardworking officer who was investigating a legitimate 911 call." At the same time, the judge derived critical findings from Rosado's testimony. See Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980) ("The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses ..."). Although the judge's findings describe Rosado as the defendant's "girlfriend," Rosado did not use that term to describe their relationship. Nevertheless, in light of the testimony of the two witnesses, which the judge credited either explicitly or implicitly, the finding that Rosado was the defendant's girlfriend is not clearly erroneous.

On Saturday, September 2, 2006, at approximately 5:00 A.M., Officer Flaven and Officer McDonough received a dispatch on their police radio stating that a 911 caller had reported an attempted breaking and entering of a residence at 13 Sachem Street in the Mission Hill neighborhood. The dispatcher described the suspect as a twenty-four year old white male wearing blue jean shorts and a gray T-shirt with orange stripes and "some kind of writing on the front."¹ In uniform and in a marked police vehicle, the officers drove past 13 Sachem Street and did not see any evidence of an attempted breaking and entering. The officers had not noticed any pedestrians or moving vehicles in the vicinity until Officer McDonough saw the defendant walking on Hillside Avenue, which runs perpendicularly to Sachem Street. The officers noticed that the defendant was wearing a white T-shirt under a long-sleeved, multicolored, button-down shirt and was accompanied by a woman, later identified as Marielis Rosado.

The officers wanted to question the defendant to determine whether he was involved with the attempted breaking and entering reported in the dispatch. The series of one-way streets in the neighborhood required them to drive around the block to approach the defendant. When they reached him, he was walking with Rosado on Darling Street, which runs in parallel to Sachem Street and perpendicularly to Hillside Avenue. As he walked, the officers drove alongside him. One of the officers asked him his name. He replied truthfully, "Jose." The officers noticed that the defendant was Hispanic and had light-colored skin. He appeared to be in his early twenties. He appeared also to be nervous.

After the defendant's response, the officers stopped their vehicle and got out. They followed the defendant and Rosado up a set of stairs onto the front porch of 30 Darling Street, a small three-story apartment house where Rosado lived. As Officer Flaven approached the defendant, he noticed that the defendant's shirt was long-sleeved and gray with "a little bit of blue in it," as well as with vertical "orange stripes." Officer Flaven noticed also that the defendant had a cast on his arm.² The defendant had not attempted to flee from the officers nor had he made any furtive gestures.³

On the porch, the officers asked the defendant for identification. He produced a Massachusetts identification card. As they examined the card, the defendant and Rosado entered the apartment house. The defendant then locked the building's front door.⁴ He stood behind Rosado, put his hands on her hips, and whispered something in her ear.⁵ He then walked up the flight of stairs inside the front door.⁶

Rosado remained immediately inside the door. Officer Flaven told her, "Open the door or I'll fucking kick it in." She was afraid that, if she did not open the door, the officer would have forcibly entered the building and caused property damage. So she unlocked and opened the door. Officer Flaven entered the building and climbed the stairs to meet the defendant. He grasped the defendant and brought him downstairs and outside. Officer McDonough conducted a patfrisk of the defendant and found a loaded handgun. Officer Flaven then asked the defendant for his license to carry a firearm. The defendant told the officers that he did not have one. They placed him under arrest.

As the officers led the defendant away from the building, he said to Rosado, "Bye, bye baby, see you later. I am going away for a long time." At the police station, Officer Flaven advised the defendant of his Miranda rights. The defendant told the officer that he had found the gun and that he carried it because he had been shot at twice. Police searched the defendant during the booking process and found marijuana and a small blue pill. With regard to the pill, the defendant, without being asked, told Officer Flaven, "It's Viagra. The girl I was with tonight. I was going to use it with her."⁷

The motion judge concluded that the officers had not seized or stopped the defendant when they had stood on the porch with him, asked for identification, and received his identification card. She concluded further that Officer Flaven's warrantless entry into 30 Darling Street was unlawful because it lacked the support of probable cause and exigent circumstances or consent. She suppressed all evidence seized from the defendant and all of his postarrest statements as the products of the unlawful entry.

Discussion. From the findings by the motion judge, we "make an independent determination of the correctness of the judge's application of constitutional principles" to those facts. Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). The reviewing court may affirm a suppression decision upon any ground supported by the record, even if the motion judge did not rely upon it. Commonwealth v. Va Meng Joe, 40 Mass. App.Ct. 499, 503 n. 7, 665 N.E.2d 1005 (1996), S.C., 425 Mass. 99, 102, 682 N.E.2d 586 (1997). Commonwealth v. Eggleston, 71 Mass.App.Ct. 363, 367 n. 4, 881 N.E.2d 1174 (2008), S.C., 453 Mass. 554, 903 N.E.2d 1087 (2009). We conclude that the stop and frisk of the defendant lacked the support of reasonable suspicion under the Fourth Amendment to the United States Constitution standards of Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). That deficiency provides an independent and alternative basis for suppression of the evidence and statements.

1. The stop and frisk. (a) The stop. Under Massachusetts law, a police officer has seized a person "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985), quoting from United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). When an officer pursues a person and the pursuit, viewed objectively, indicates that the person is not free to leave the area without responding to the officer's inquiry, the officer has seized that person. Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996). An officer may seize a person if he reasonably suspects that the "person has committed, is committing, or is about to commit a crime." Commonwealth v. Silva, 366 Mass. at 405, 318 N.E.2d 895. That reasonable suspicion must "be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Id. at 406, 318 N.E.2d 895. "The facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his acts." Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981).

We must allow officers "to take account of the possibility that some descriptive facts supplied by victims or witnesses may be in error." Commonwealth v. Emuakpor, 57 Mass.App.Ct. 192, 198, 782 N.E.2d 7 (2003), quoting from 2 LaFave, Search and Seizure § 3.4(c), at 241 (3d ed. 1996); 4 LaFave, Search and Seizure...