Com. v. Sanchez

• Decision Date: 22 December 1988
• Citation: 403 Mass. 640,531 N.E.2d 1256
• Parties: COMMONWEALTH v. Juan A. SANCHEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1256

531 N.E.2d 1256

403 Mass. 640

COMMONWEALTH v. Juan A. SANCHEZ.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 3, 1988.

Decided Dec. 22, 1988.

Gregory P. Hancock, for defendant.

District Attorney for the Suffolk District, for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant appeals from his conviction for trafficking in cocaine. G.L. c. 94C, §§ 31, 32A(a ). ¹ The defendant alleges error in the denial of (1) his motion to suppress; (2) his motion to dismiss, based on a delayed arraignment after indictment; and (3) his posttrial motion for a required finding of not guilty, or for a new trial. G.L. c. 278, § 11. Mass.R.Crim.P. 25(a), as amended, 389 Mass. 1107 (1983). We transferred the case to this court on our own motion. We affirm.

The motion judge found the following facts. On October 22, 1986, the defendant arrived at Logan Airport on the Eastern Airlines shuttle. He left the plane in a hurry. He wore a red and blue shirt, baggy sweatpants, and shoes without socks. He carried two magazines and a brown paper bag. Troopers Palombo and MacDonald, two plainclothes officers experienced in drug related investigations, observed the defendant leaving the shuttle.

The defendant, as he left the shuttle ramp, watched MacDonald, who was holding a large radio. The defendant did not take his eyes off MacDonald. As MacDonald followed the defendant, the defendant looked around at MacDonald and then several times at Palombo, although the officers were following the defendant apart from one another. The defendant then went to the line of persons waiting for taxis.

Palombo walked up to the defendant as the defendant stood in line. The officer held open his wallet, displayed his badge at about waist level, said he was a police officer, and asked the defendant if he would speak with him.

The defendant became visibly pale and his hands began to tremble as he looked from the officer's face to his badge. MacDonald stood ten to fifteen feet away. The defendant said, "Okay" to the request. Palombo asked the defendant where he was coming from and where he was going, if he had a business, if he were in business in Boston or New York. Palombo also asked whether he had an airline ticket and identification. The defendant answered these questions. As the defendant sought his identification, he put the magazines and brown paper bag between his legs. His legs appeared to tremble.

Palombo then stated that he was a narcotics investigator and requested permission to search the defendant for narcotics. Palombo told the defendant that the defendant was not obliged to submit to a search, but was merely being asked if he would agree to be searched.

The defendant agreed to a search provided that it could be private and not in public on the sidewalk. Palombo suggested a men's room nearby, and the defendant agreed. Palombo called over MacDonald. The three men began to enter the airport terminal in single file, with MacDonald first, the defendant second, and Palombo third. As MacDonald stepped on the automatic door pad and entered the terminal, the defendant bolted into the street.

A taxicab then struck the defendant and threw him back onto the side of the street near the terminal. He fled, with MacDonald in pursuit. When MacDonald identified himself as a police officer, the defendant spun around quickly and knocked MacDonald to the ground.

The defendant ran in such a manner that he lost his shoes. During the flight, he scaled a fence. The defendant was apprehended some minutes later, barefoot. He was arrested for an assault on MacDonald. A search incident to the arrest disclosed heroin. Although not explicitly found by the motion judge, the defendant admits that the cocaine was discovered during a custodial search of the defendant at State police headquarters at Logan Airport after the arrest.

1. Fourth Amendment claim. The motion judge concluded that no "seizure" occurred within the meaning of the Fourth Amendment to the Federal Constitution, because the defendant's responses to the trooper's questions were consensual until the defendant broke away. The judge also concluded that "the fact is not disputed that the defendant committed an assault and battery on the police officer." Therefore, he found the subsequent search which yielded the heroin to be incident to an arrest and thus constitutionally justified. United States v. Robinson, 414 U.S. 218, 225-226, 94 S.Ct. 467, 472, 38 L.Ed.2d 427 (1973).

We first determine whether, as a matter of law, a "seizure" within the meaning of the Fourth Amendment occurred when the officers initially approached the defendant. ² If there was no seizure, the police activity in questioning the defendant did not violate the defendant's constitutional rights. If, however, there was a seizure not justified by reasonable and articulable suspicion, the illegality of the seizure may render inadmissible the evidence obtained.

"An objective standard is used to determine when a seizure has occurred: 'a person has been "seized" ... if, in view of all 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 United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The defendant argues that a reasonable man in his position would not have felt free to leave. We do not agree.

The United States Supreme Court has not yet determined "whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment." Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). The United States Court of Appeals for the First Circuit, however, has ruled that, under the objective standard concerning consent, a seizure can be found "only where the police have engaged in some 'show of authority' which could be expected to command compliance, beyond simply identifying themselves as police." United States v. West, 651 F.2d 71, 73 (1st Cir.1981), vacated on other grounds, 463 U.S. 1201, 103 S.Ct. 3528, 77 L.Ed.2d 1382 (1983), cert. denied, 469 U.S. 1188, 105 S.Ct. 956, 83 L.Ed.2d 963 (1985). See United States v. Berryman, 717 F.2d 651, 661 (1st Cir.1983) (Breyer, J., dissenting), rev'd per curiam, 717 F.2d 650 (adopting dissenting opinion), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984); United States v. Regan, 687 F.2d 531, 535 (1st Cir.1982). See also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality opinion); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968).

There is no indication that the police engaged in any "show of authority" prior to the defendant's flight. In addressing the officer's actions in approaching the defendant, the motion judge found that Palombo identified himself as a police officer, asked the defendant to talk, informed the defendant that he was conducting a narcotics investigation, and asked the defendant if he would consent to a search. The officer told the defendant that he was not obliged to submit to a search, but was being asked if he would so agree. ³ Except for the police officer's identification of himself, which included showing his badge, and the officer's questioning of the defendant, there was no "show of authority," United States v. West, supra, and thus no seizure. Cf. Florida v. Royer, supra 460 U.S. at 508-509, 103 S.Ct. at 1329-1330 (Powell, J., concurring) (police took the defendant to a "large closet," retrieved his baggage without permission, and retained his ticket). Commonwealth v. Sanderson, 398 Mass. 761, 766, 500 N.E.2d 1337 (1986) (police blocked defendant's car). Commonwealth v. Borges, 395 Mass. 788, 789-790, 482 N.E.2d 314, (1985) (police made defendant remove his shoes). See United States v. West, supra (show of authority may consist of physical force, threatening presence, display of a weapon, physical touching, or use of authoritarian language or tone of voice). Until the time the defendant fled, therefore, his Fourth Amendment rights had not been implicated.

If a defendant flees after having consented to a search, the officers are justified in pursuing him for the purpose of subjecting him to an initial investigatory inquiry. "A police officer is warranted in making a threshold inquiry 'where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime.' " Commonwealth v. Bacon, 381 Mass. 642, 643, 411 N.E.2d 772 (1980), quoting Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). "In following the constitutional standards of Terry v. Ohio, supra, we have required that the police officer's action be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Commonwealth v. Silva, supra at 366 Mass. at 406, 318 N.E.2d 895. A flight from police, after an initial consent to a search and before any pursuit by the police, provides a reasonable and articulable suspicion justifying an investigatory stop.

The defendant relies on Commonwealth v. Thibeau, 384 Mass. 762, 429 N.E.2d 1009 (1981), for the proposition that "the defendant's flight from the officer's pursuit cannot be considered" to justify the investigatory stop. Id. at 764, 429 N.E.2d 1009. The defendant's reliance is misplaced. In Thibeau, we said that "a stop starts when pursuit begins." Id. Because the police in that case began pursuing the defendant before he fled, they could not use his subsequent flight to justify the stop. Here, however, the defendant broke away from the police before they pursued him, thus providing the police with a reasonable and...