Com. v. Mathis

• Decision Date: 02 March 2010
• Docket Number: No. 08-P-789.,08-P-789.
• Citation: 922 N.E.2d 816,76 Mass. App. Ct. 366
• Parties: COMMONWEALTH v. Ronald MATHIS.
• Court: Appeals Court of Massachusetts

922 N.E.2d 816

76 Mass. App. Ct. 366

COMMONWEALTH v. Ronald MATHIS.

No. 08-P-789.

Appeals Court of Massachusetts, Suffolk.

Argued October 2, 2009.

Decided March 2, 2010.

Jill S. Klowden, Dorchester, for the defendant.

Anna E. Kalluri, Assistant District Attorney, for the Commonwealth.

Present: BERRY, GRAINGER, & WOLOHOJIAN, JJ.

GRAINGER, J.

After a jury trial in Dorchester Division of the Boston Municipal Court Department the defendant was found guilty of possession of cocaine with intent to distribute, G.L. c. 94C, § 32A; and committing the offense within a school zone, G.L. c. 94C, § 32J. The defendant asserts error in the denial of his motion to suppress evidence central to his convictions. Specifically, the defendant contends that the arresting officers (i) conducted an unlawful seizure in violation of his rights under art. 14 of the Massachusetts Declaration of Rights, and (ii) subjected him to custodial interrogation in violation of his Miranda rights.

Background. The facts are uncontested except in two incidental respects; in both of these the judge credited the defendant's recollection. At approximately 10:30 P.M. on February 5, 2006, Boston police Officers Duran Edwards and Richard Sleamon¹ were patrolling in an unmarked cruiser when they observed the defendant standing in front of a building bearing a "no trespassing" sign. The officers approached, identified themselves, and, while seated in their vehicle, asked the defendant the purpose for his presence; he replied that his mother lived in the building. The officers requested documentary identification² and ran a warrant check on the defendant, which produced no results. If the officers received documentation, they returned it to the defendant at that point. During this exchange, the officers observed that the defendant was breathing heavily, stuttering, and "couldn't get his words out right." Officer Edwards then proceeded to ask the defendant if he had "anything on [him] I need to know about?"³ to which the defendant responded, "Yeah, I got a bag of weed on me." It is undisputed that the defendant's identification had been returned to him before this exchange took place. After the return of the identification, and then, after the defendant's admission that he was committing a crime at that moment,⁴ the defendant proceeded to place his hand in his pocket. The defendant was ordered by the officers to keep his hands in sight while they then asked him if he previously had been arrested, and also proceeded to question him in a general fashion.⁵

At this point, the officers emerged from their cruiser.⁶ The defendant, who now was avoiding eye contact, "looking down at the ground," made several attempts to put his hands into his pockets. After instructing the defendant to remove his hands, Officer Edwards conducted a patfrisk of the defendant's waist area. During the course of the frisk, several plastic vials containing "crack" cocaine fell from the defendant's pockets.

Seizure of the defendant. The motion judge correctly ruled that the officers did not seize the defendant when they first approached him and asked his identity in a "reasonable tone." An officer's conversational approach to an individual, absent a show of authority, does not rise to the level of a seizure under art. 14 of the Massachusetts Declaration of Rights. See, e.g., Commonwealth v. Thomas, 429 Mass. 403, 406, 708 N.E.2d 669 (1999); Commonwealth v. DePeiza, 449 Mass. 367, 370, 868 N.E.2d 90 (2007). The officers did not restrict the defendant's freedom of movement, nor did they question the defendant in a hostile manner. Contrary to the defendant's contention, the officers' location—whether inside the cruiser or on the sidewalk—does not alter our conclusion. See DePeiza, supra at 369-370, 868 N.E.2d 90 (no seizure where officers left their vehicle and positioned themselves on either side of the defendant during questioning); Commonwealth v. Pagan, 63 Mass.App.Ct. 780, 782, 829 N.E.2d 1168 (2005) (no seizure "by simply alighting from the police cruiser and approaching" the defendant). Contrast Commonwealth v. Grandison, 433 Mass. 135, 138-139, 741 N.E.2d 25 (2001) (encounter became stop when officer not only emerged from cruiser but also commanded defendant to stop).

Even if the officers' request for identification is characterized as more than a casual street encounter and therefore required justification, such justification was present here. As noted, supra, the officers' request for identification served to test the defendant's explanation for his presence in front of a "no trespassing" sign.⁷ Assuming the defendant provided documentation in addition to his oral statements, the officers' continued retention of the identification after its use for a lawful purpose "implicitly command[ed] the defendant to remain on the scene." Commonwealth v. Lyles, 453 Mass. 811, 815, 905 N.E.2d 1106 (2009).⁸ Thus, while we agree with the motion judge that the defendant was seized at a later point in time when Officer Edwards conducted a patfrisk of his person, Lyles instructs that he also may have been seized during the earlier time period while his documentation was retained by the police.

As stated, supra, and assuming the defendant provided the officers with identification in written form, it was returned to him after the warrant check was completed. Our cases dealing with investigatory stops recognize that there is some ambiguity inherent in many encounters between citizens and police officers. See Commonwealth v. Sykes, 449 Mass. 308, 311, 867 N.E.2d 733 (2007) ("The nature of an encounter between a citizen and a law enforcement official is necessarily fact specific and requires careful examination of the attending circumstances"); Commonwealth v. Fletcher, 52 Mass.App.Ct. 166, 172, 752 N.E.2d 754 (2001) ("[s]treet encounters between citizens and police officers are incredibly rich in diversity ... [which] yields the abundance of `highly fact-based questions'" [citations omitted]).

However, where the retention of documents serves as an inferred command to remain on the scene during a warrant check, their return may be viewed as a positive act that removes the command. Simply put, any implicit command dependent on the retention of documents is no longer operative once the documents are returned. Consistent with this logical inference, the defendant testified at the motion hearing that he considered himself free to leave at the point that his identification was returned to him.⁹ The defendant's concession is also consistent with that part of the analysis in Lyles that relies on the commonsense conclusion that an individual does not feel free to leave for the very reason that he does not feel free to demand the return of identification from a police officer who has acquired it. See Commonwealth v. Lyles, supra at 816, 905 N.E.2d 1106. Thus, it is reasonable to conclude that any initial seizure had terminated when, thereafter in possession of his identification, the defendant volunteered that he was carrying marijuana in response to the general inquiry whether he had anything the officers "need[ed] to know about."¹⁰

Moreover, even if we assume that the defendant had not been free to depart after the warrant check produced negative results, the police were justified in continuing their investigation under these circumstances, at least to the minimal extent they did so here. The defendant's odd and evasive behavior provided ample support for the single additional question that led to the admission that the defendant had illegal drugs on his person. Thus, even if the return of the identification is not characterized as a termination of the seizure that began when it was taken, there was reasonable suspicion to prompt the question asked by the police. See note 13, infra.

We next address the contention that Officer Edwards illegally seized the defendant because he exited his vehicle before, not after, the defendant admitted to possessing marijuana. The motion judge's finding to the contrary is supported by the evidence. In reviewing a motion to suppress, we adhere to the motion judge's findings of fact absent clear error. Commonwealth v. Thomas, 429 Mass. at 405, 708 N.E.2d 669. "We independently determine whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818, 821, 882 N.E.2d 328 (2008). "The clear error standard is a very limited form of review. . . . Where there has been conflicting testimony as to a particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted." Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), quoting from Commonwealth v. Spagnolo, 17 Mass.App. Ct. 516, 517-518, 459 N.E.2d 1256 (1984).¹¹

Moreover the distinction is of no legal import in the circumstances of this case. A person is "seized" by a police officer "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. Rock, 429 Mass. 609, 611, 710 N.E.2d 595 (1999), quoting from Commonwealth v. Stoute, 422 Mass. 782, 786, 665 N.E.2d 93 (1996). The fact that an officer leaves his cruiser during an encounter is but one factor in considering whether the requisite show of authority has occurred. See DePeiza, 449 Mass. at 370, 868 N.E.2d 90; Pagan, 63 Mass.App.Ct. at 782, 829 N.E.2d 1168. The record contains no indicia of additional police conduct that could be interpreted as improper by any standard, much less coercion.¹² The officers asked a single question—"You got anything on you I need to know about?"— which was not excessive¹³ or improper, especially in light of the defendant's abnormal behavior preceding the question. Although the dissent characterizes the police as "impermissibly" using the opportunity of the warrant check to question the defendant at greater length,...