Com. v. Narcisse
| Decision Date | 24 December 2008 |
| Docket Number | No. 07-P-1445.,07-P-1445. |
| Citation | 898 N.E.2d 507,73 Mass. App. Ct. 406 |
| Parties | COMMONWEALTH v. Mark NARCISSE. |
| Court | Appeals Court of Massachusetts |
Present: CYPHER, GRASSO, & KANTROWITZ, JJ.
After a jury-waived trial, the defendant, Mark Narcisse, was convicted of carrying a firearm without a license, G.L. c. 269, § 10(a); and unlawful possession of ammunition, G.L. c. 269, § 10(h). On appeal, the defendant argues that the motion judge (who was not the trial judge) erroneously denied the defendant's motion to suppress because (1) the Commonwealth failed to prove that reasonable suspicion supported the investigatory stop; and (2) there was no objective safety concern to warrant the protective frisk. While acknowledging, as did the motion judge, that the case is close, we, nonetheless, affirm.
Facts. We take the facts from the findings of the motion judge and the testimony of Officer Stephen Romano, who was the only witness to testify at the hearing on the motion to suppress, and whom the motion judge found credible. See Commonwealth v. Fisher, 54 Mass.App.Ct. 41, 43, 763 N.E.2d 1106 (2002). On January 30, 2005, at approximately 10:00 P.M., Boston police Officer Stephen Romano and his partner, Officer David Yee, were on patrol in an unmarked cruiser with Sergeant Steven McLaughlin in the area of Charles Street in the Dorchester section of Boston. Officer Romano, a nine-year veteran of the Boston police force, testified that they were directed to patrol the area because one of the "impact players" in the area had been murdered the previous night in Randolph, and the police department was concerned that there would be retaliation in the area. The Charles Street and Geneva Avenue area is considered by the police department to be a "hot spot" because of the frequent reports of gunfire. Indeed, earlier that evening, at approximately 7:00 P.M., while Officer Romano was on duty, shots had been fired into an apartment on East Street, less than a mile from the corner of Charles Street and Geneva Avenue. The police had no information on the perpetrators of either the murder in Randolph or the gunfire on East Street.
At about 10:00 P.M., Officer Romano observed two black males, one of whom was later identified as the defendant, standing on the corner of Charles Street and Geneva Avenue. As the officers drove down Charles Street toward the defendant and his companion, they began walking down Geneva Avenue. The officers, still in their cruiser, followed the men down Geneva Avenue, pulled up alongside the men, and asked them their names and whether they lived in the area, as both men were unfamiliar to the officers. The defendant responded that he was from Randolph (the same town where the local impact player had been murdered the previous night). While still in his cruiser, Officer Romano then asked where they were coming from, and the defendant responded that they were coming from "the store," an answer that Officer Romano found suspicious because he knew of no stores on Charles Street. Officer Romano then asked the defendant and his companion if the officers could talk with them and if they could step over to the sidewalk, which they did.
At this point, Officer Romano told the defendant and his companion about the earlier shooting and informed them that he was going to conduct a patfrisk. Officer Romano then conducted a protective frisk of the defendant and testified that he did so "[f]or my safety." Officer Romano felt what he believed to be a firearm in the defendant's left front jacket pocket and recovered a loaded .22 caliber firearm. The officers then ascertained that the defendant did not possess the requisite license or permit for carrying such a weapon and placed him under arrest.
Discussion. "When reviewing a motion to suppress, we adopt the factual findings of the motion judge absent clear error." Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007). "We `independently determine the correctness of the judge's application of constitutional principles to the facts as found.'" Ibid., quoting from Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004).
1. Investigatory stop. As in Commonwealth v. Fraser, 410 Mass. 541, 544 n.4, 573 N.E.2d 979 (1991), what occurred here was not the classic investigatory stop, requiring "reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime." Commonwealth v. DePeiza, 449 Mass. at 371, 868 N.E.2d 90. In such an instance, the suspicion "must be grounded in `specific, articulable facts and reasonable inferences [drawn] therefrom.'" Ibid., quoting from Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).
Rather, what occurred here was a protective frisk, "justified where an officer reasonably believes the defendant is armed and dangerous." Commonwealth v. Fisher, 54 Mass.App.Ct. at 44, 763 N.E.2d 1106. The police are always free to approach a defendant and ask preliminary questions, as the officer did here. See Commonwealth v. Murdough, 428 Mass. 760, 763, 704 N.E.2d 1184 (1999) ().
2. Protective frisk. In Commonwealth v. Fisher, supra at 47, this court concluded there was no error in the denial of the defendant's suppression motion, challenged on appeal from his conviction of unlawful possession of a firearm. As in the instant case, the officers had approached the defendant at night in a high crime area. Id. at 43, 763 N.E.2d 1106. When the officers drove towards the defendant in their marked police cruiser, the defendant looked at the cruiser and then abruptly "did a U-turn" and walked away at a fast pace. When the officers pulled the cruiser up to the sidewalk, the defendant made a quick gesture to his waist area. Ibid. This court held that the ensuing protective frisk of the defendant was justified because, taken together, the late hour in the high crime area, the evasive reaction of the defendant, and the defendant's quick motion to his waist provided the officer with a reasonable basis for a safety concern. Id. at 44-46, 763 N.E.2d 1106. Even though the individual elements of the situation would not, by themselves, have been enough to warrant police intervention, the combination of factors supported the requisite reasonable belief that the defendant could be armed and dangerous. Id. at 44, 763 N.E.2d 1106.
...
To continue reading
Request your trial
-
Commonwealth v. Narcisse
...jury-waived trial, the defendant was convicted of both charges. The Appeals Court affirmed his convictions, Commonwealth v. Narcisse, 73 Mass.App.Ct. 406, 407, 898 N.E.2d 507 (2008), and we granted his application for further appellate review. We now reverse. Background. We summarize the mo......
-
Com. v. Martin
...gave the officers were two years off, thereby demonstrating the defendant was lying to the officers. See Commonwealth v. Narcisse, 73 Mass.App.Ct. 406, 410, 898 N.E.2d 507 (2008) (defendant's statement that he was from the town where a murder had occurred the previous night, together with h......
- Dwyer v. Dwyer
-
Com. v. Jackson
...406, 318 N.E.2d 895. See Commonwealth v. Fisher, 54 Mass.App.Ct. 41, 44, 763 N.E.2d 1106 (2002). See also Commonwealth v. Narcisse, 73 Mass.App.Ct. 406, 408, ___ N.E.2d ___ (2008). In reviewing the legality of a protective "we apply an objective standard of reasonableness and look to the to......