Com. v. Scott

• Citation: 781 N.E.2d 27,57 Mass. App. Ct. 36
• Decision Date: 08 January 2003
• Docket Number: No. 02-P486.,02-P486.
• Parties: COMMONWEALTH v. Perdite SCOTT.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

781 N.E.2d 27

57 Mass. App. Ct. 36

COMMONWEALTH v. Perdite SCOTT.¹

No. 02-P486.

Appeals Court of Massachusetts, Middlesex.

Argued September 18, 2002.

Decided January 8, 2003.

Marian T. Ryan, Assistant District Attorney (Esther M. Bixler, Assistant District Attorney, with her) for the Commonwealth.

Randall K. Power for the defendant.

Present: BROWN, PORADA, & DUFFLY, JJ.

PORADA, J.

This is an appeal by the Commonwealth from the allowance of the defendant's motion to suppress after we had vacated a motion judge's initial allowance of the motion to suppress and remanded the case to the Superior Court for further proceedings. See Commonwealth v. Scott, 52 Mass.App.Ct. 486, 496, 754 N.E.2d 728 (2001). We reverse.

In response to our remand order, the judge held a hearing. The only witness to testify at the hearing was the arresting officer, a State trooper, who also had testifled at the initial hearing. In his original decision, the judge found that the officer had shone a spotlight at night on the defendant, whose general description fit that of a suspect in two rapes and who at the time was descending a path where the rapes had occurred at about the same time of night. The judge determined that when the officer then asked the defendant to come back and talk to him, a seizure had occurred for which the officer did not have reasonable suspicion. Upon remand, the judge added to his original findings that the officer had used a loudspeaker when he told the defendant to come back and talk to him. Based on this aggregation of facts, the motion judge again ruled that a seizure had occurred for which the officer lacked reasonable suspicion, and allowed the motion to suppress.

In Commonwealth v. Scott, supra at 493, 754 N.E.2d 728, we ruled that the judge erred as matter of law in concluding that a seizure had occurred at this juncture because the use of a spotlight to enhance visibility was reasonable in the circumstances, the encounter occurred in an unconfined open space, and there was no evidence that the officer had ordered the defendant to answer his questions or that the defendant had expressed a wish to leave. We do not believe that the judge's additional finding that the officer had used a loudspeaker to communicate his request that the defendant come back and talk to him changed the nature of the encounter. The use of the loudspeaker was reasonable because the encounter occurred at nighttime on a public highway at a time when the defendant was descending a path with heavy vegetation some thirty to forty feet away from the officer.

However, this does not end our inquiry. The judge on remand ruled that, even if the initial exchange did not amount to an improper seizure, the defendant was seized without reasonable suspicion when, in response to the officer's request, he started to walk back toward the officer and, at a distance of fifteen to twenty feet from the officer, was ordered to stop and stand still while under the beam of the spotlight. The judge discredited the officer's testimony that, when the defendant continued to walk toward him, he observed that the defendant had thick lips and small marks on his face. This information was significant because it matched the detailed description of the assailant given by the two alleged rape victims. If the judge had believed this testimony, there is no question that the stop would have been proper. Compare Commonwealth v. Cheek, 413 Mass. 492, 496, 597 N.E.2d 1029 (1992) ("The officers possessed no additional physical description of the suspect that would have distinguished the defendant from any other black male in the area such as the suspect's height and weight, whether he had facial hair, unique markings on his face or clothes, or other identifying characteristics"), with Commonwealth v. Carrington, 20 Mass.App.Ct. 525, 528, 481 N.E.2d 224 (1985) (information that a rape had occurred in an apartment at a particular address near the location where the defendant was found; that the rapist had been described as a black male in his thirties with a receding hairline, a moustache and a beard, and wearing a blue running jacket and dark shorts; and that the defendant fit the physical description but was wearing different clothing was sufficient to stop the defendant). The Commonwealth challenges the judge's rejection of this testimony. We conclude that the judge, as the fact finder and assessor of the credibility of a witness, could reject this aspect of the officer's testimony. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). However, although we agree with the judge that the officer's command to the defendant that he stop and remain still amounted to a seizure, see Commonwealth v. Mock, 54 Mass.App.Ct. 276, 278-279, 764 N.E.2d 924 (2002) (officer's action in getting out of the cruiser, following the defendant and telling him to "stop" constituted a pursuit and seizure), we reject the judge's conclusion that the officer did not have the requisite reasonable suspicion for this stop.

Reasonable suspicion must be based on specific and articulable facts and any reasonable inferences that follow from those facts in light of the officer's knowledge and experience. Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). While "[n]either evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support the reasonable suspicion necessary to justify a stop and frisk ... [e]ach of these factors may, however, be considered by the police, and in combination may allow the police to narrow the range of suspects to particular individuals." Commonwealth v. Mercado, 422 Mass. 367, 371, 663 N.E.2d 243 (1996). Here, the officer knew that the...