Com. v. Mercado

Decision Date01 April 1996
Citation663 N.E.2d 243,422 Mass. 367
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesCOMMONWEALTH v. Jose MERCADO.

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 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.

"[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....

"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 qualify as "reasonable," the officer's suspicion "must be based on specific, articulable facts and reasonable inferences drawn therefrom." Moses, supra, quoting Wren, supra. Accord Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993); Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). The standard is objective: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

We conclude that the information Officer Coakley received from the police radio, together with Lemerise's statement and Coakley's own observations, justified the stop and frisk of Mercado. From the radio bulletin, and his observation of the bleeding man, Coakley knew that a shooting had recently occurred. From the radio bulletin and Lemerise's statement, Coakley could have reasonably believed that there were three suspects of Hispanic descent, at least one of whom was in the Kangaroo Crossing store. These facts, coupled with Coakley's observation of the behavior of the Hispanic men whom he saw leaving the store, see supra at 244-245, sustain Coakley's reasonable suspicion of those men. In these circumstances, we think that "it would have been poor police work indeed" had Coakley failed to initiate a threshold inquiry. 1 Terry, supra, at 23, 88 S.Ct. at 1881.

Mercado relies heavily on Commonwealth v. Cheek, 413 Mass. 492, 597 N.E.2d 1029 (1992). We think that case distinguishable. In Cheek, two police officers received a police radio bulletin that a stabbing had taken place and that "[f]or a suspect we have a black male with a black 3/4 length goose known as Angelo of the Humboldt group." Id. at 493, 597 N.E.2d 1029. Some time later, approximately one-half mile from the scene of the stabbing, the officers saw a black male (the defendant) wearing a dark-colored three-quarter length goose-down coat. The officers approached the defendant and asked his name, but his response was unclear because his coat was zippered up over his mouth. The officers proceeded to frisk the defendant and discovered a .38 caliber handgun in his coat pocket. Id.

We rejected the Commonwealth's contention that reasonable suspicion arose from the match of the coat to the radio description coupled with the defendant's presence in the high crime area where the stabbing allegedly occurred. We observed that the description of the suspect as a "black male with a black 3/4 length goose" could have fit a large number of men living in the area where the stop occurred. Id. at 496, 597 N.E.2d 1029. We also observed that neither his proximity to the crime scene nor his presence in a high crime area "contribut[ed] ... to the officers' ability to distinguish the defendant from any other black male" in the neighborhood. Id. In particular, we noted that the police had not observed the defendant engaged in any suspicious activities. Id.

In this case, unlike Cheek, the information in Coakley's possession allowed him to distinguish Mercado and his companion from other persons in the vicinity. The radio report narrowed the range of possible suspects to males of Hispanic descent who were in the vicinity south of 146 Main Street. Lemerise's statement further narrowed the range of suspects to males of Hispanic descent then present in the...

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