Com. v. Mercado

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: A motion to suppress evidence was heard by Herbert F. Travers, Jr.; An application for leave to prosecute an interlocutory appeal was allowed by Wilkins; Before LIACOS; ABRAMS
• Citation: 663 N.E.2d 243,422 Mass. 367
• Parties: COMMONWEALTH v. Jose MERCADO.
• Decision Date: 01 April 1996

Page 243

663 N.E.2d 243 422 Mass. 367 COMMONWEALTH
v.
Jose MERCADO. Supreme Judicial Court of Massachusetts,
Suffolk. Argued March 4, 1996.
Decided April 1, 1996.

Page 244

INDICTMENTS found and returned in the Superior Court Department on December 6, 1994.

A motion to suppress evidence was heard by Herbert F. Travers, Jr., J.

An application for leave to prosecute an interlocutory appeal was allowed by Wilkins, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him.

Christopher Hodgens, Assistant District Attorney, for the Commonwealth.

Edward K. Boyer, Fall River, for the defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

The defendant, Jose Mercado, stands indicted for murder in the first degree, breaking and entering a building with intent to commit a felony, and illegal possession of a firearm. After a hearing, a Superior Court judge allowed Mercado's motion to suppress evidence seized from him following a police officer's stop and frisk. The judge determined that the stop was not justified by reasonable suspicion. Pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979), the [422 Mass. 368] Commonwealth applied to a single justice of this court for leave to appeal the allowance of the motion to suppress. The single justice allowed the application and reported the case to this court. We reverse.

The facts, as found by the judge, are as follows. On August 19, 1994, at about 4:30 P.M., a number of shots were fired on the third floor of 146 Main Street in Worcester. Officer Coakley of the Worcester police department learned of the incident by police radio. According to the radio report, the suspects in the shooting were three Hispanic males who, after the reported shooting, ran south on Main Street.

When he arrived at the scene, Coakley saw another police officer assisting a man who was bleeding profusely. The officer directed Coakley to interview a woman standing on the sidewalk fifty to seventy yards to the south. The woman told Coakley that she had heard shots fired and had seen two white males running northeastward.

After speaking to the woman, Coakley started walking northerly. When he was about twenty-five to thirty feet from the woman, Coakley encountered a man named Lemerise standing on the sidewalk with his eight or nine year old son. Lemerise told Coakley that he had observed some unusual activity in Kangaroo Crossing, a sporting attire and shoe store located in a building set back less than one hundred feet from the sidewalk on which they were standing. He told Coakley that he had observed a shirtless Hispanic or black male wearing olive green pants pushing people out of his way in an apparent attempt to reach the cash register. He had three or four fifty dollar bills in his hands and said that he wanted to buy an article. The man appeared very agitated.

Coakley looked toward the doorway of Kangaroo Crossing. The judge found that "Coakley saw a Spanish male ... start to come outside from the small vestibule. This man was later identified as Luis Yambo.... Yambo stopped and backed up into the vestibule. Officer Coakley also saw another Spanish male [Mercado], three or four feet behind the first, make these same movements when he saw the officer. Thereafter, they once again stepped outside.

Page 245

"[Mercado] was wearing plaid shorts with a long 'Miami Hurricane' shirt extending over the top, and a baseball cap. He stepped out first, looking back at Yambo and then ahead at the officer. Yambo hesitated, then started out, then stopped and started once again....

[422 Mass. 369] "Officer Coakley called out to the two men, 'How you doing? What's up?', and, on reaching them, asked their names and where they were coming from. Yambo replied that they had been in the store. [Mercado] said he did not speak English (in English).

"Coakley then proceeded to pat them down.... He patted down Yambo first.... Then he patted down [Mercado]. He felt an object. He lifted the shirt and in the waist band of the shorts saw a firearm. It proved to be a semi-automatic 9 mm. [handgun]."

In reviewing a ruling on a motion to suppress, 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. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990). In stop and frisk cases our inquiry is two-fold: "first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990), quoting Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). Accord Commonwealth v. Owens, 414 Mass. 595, 598-599, 609 N.E.2d 1208 (1993).

As to the first inquiry, a police officer may stop an individual and conduct a threshold inquiry if the officer reasonably suspects that such individual has committed, is committing, or is about to commit a crime. Moses, supra at 140, 557 N.E.2d 14, quoting Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). Accord Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987); Silva, supra at 405, 318 N.E.2d 895. To...