Com. v. Stoute

• Decision Date: 30 May 1996
• Citation: 665 N.E.2d 93,422 Mass. 782
• Parties: , 65 USLW 2012 COMMONWEALTH v. Dion L. STOUTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 93

665 N.E.2d 93

422 Mass. 782, 65 USLW 2012

COMMONWEALTH v. Dion L. STOUTE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 4, 1996.

Decided May 30, 1996.

Dennis M. Powers, North Reading, for defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

We transferred the appeal of the defendant, Dion L. Stoute, to this court on our own motion to decide whether, under art. 14 of the Declaration of Rights of the Massachusetts Constitution, a person is "seized" when a police officer engages in pursuit which is intended to stop and detain the person for inquiry or whether a seizure occurs only when the person is physically detained by a police officer. We conclude that a person is seized, for purposes of art. 14, when a police officer initiates a pursuit with the obvious intent of requiring the person to submit to questioning.

The defendant was convicted by a jury in the Superior Court of trafficking in cocaine, in violation of G.L. c. 94C, § 32E (1990 ed.), and for possession of marihuana, in violation of G.L. c. 94C, § 34 (1994 ed.). Prior to trial, he moved to suppress drugs seized by the police. Following an evidentiary hearing, a judge in the Superior Court denied the motion, and the correctness of that ruling is the only issue raised on appeal. We conclude that the motion to suppress was properly denied and affirm the judgments of conviction.

In his written memorandum of decision, the judge recited the following facts. ¹ Around 10:45 P.M. on July 22, 1991, two Boston police officers, accompanied by a State trooper, all in plain clothes, left the parking lot of the police station in the Roxbury section of Boston in an unmarked, Crown Victoria automobile. A short distance from the parking lot, the driver of the vehicle noticed a group of young people, most of them female, in front of a sandwich shop. Two young men on bicycles, one dressed in a black sweatshirt with a hood over his head, were passing the sandwich shop, heading toward the vehicle. The area is one with a "very high" rate of crime. ² As the automobile passed the group of girls, one of them ³ yelled that the boy in the "hoody" (vernacular term for hooded sweatshirt) had a gun. ⁴ The driver turned the automobile around, and followed the two young men, simultaneously informing the other officers of what he had heard. When the automobile pulled alongside the young men, the police officer in the passenger seat said, "Police, hold up a minute." The individual in the black sweatshirt stopped and raised his hands over his head. The trooper got out of the back seat of the vehicle and rapidly frisked this young man. Nothing was found.

The other bicyclist (the defendant) continued to ride down the street at an increased rate of speed. As soon as the police officers ascertained that the trooper had not found a firearm, they followed the defendant and again pulled up alongside of him. Officer Murphy, the passenger, recognized the defendant as someone with whom he had spoken in the past. The defendant had always been cooperative and respectful with the police. Officer Murphy again asked the defendant to stop. Instead of obeying the command the defendant rode his bicycle onto the sidewalk, jumped off it, and ran in the direction opposite to the one in which he had been riding. Officer Murphy left the automobile and pursued the defendant, who ran a short distance before vaulting over a fence, simultaneously discarding a white plastic bag. The defendant landed on his back and did not get up. Officer Murphy jumped over the fence and physically detained the defendant. The package, retrieved by the police officers, contained white powder, presumed (correctly as it turned out) to be cocaine. The defendant was placed under arrest for the unlawful possession of a controlled substance. When he was searched in connection with his arrest, marihuana was found on his person.

1. The defendant concedes that the decision of the United States Supreme Court in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), forecloses any argument that the Fourth Amendment to the United States Constitution requires suppression of the evidence. In the Hodari D. case, a majority of the Court rejected the claim that a person is "seized," for the purpose of the Fourth Amendment, when a police officer commences a pursuit of the person in circumstances indicating an obvious intention on the part of the police officer to detain the person for questioning. Instead, the Court concluded, a person is seized only when a police officer with lawful authority actually lays hands on, and manages to detain, the person. ⁵ See id. at 624, 111 S.Ct. at 1548-60. As the defendant acknowledges, under the reasoning in the Hodari D. decision, he was not seized until Officer Murphy jumped over the fence and physically detained him. Thus, the package that the defendant discarded during the pursuit was abandoned by him before he was seized, and its retrieval was not the fruit of an illegal seizure effected without reasonable suspicion or probable cause. See id. at 629, 111 S.Ct. at 1552.

2. We turn, therefore, to a question to which we have recently alluded, see Commonwealth v. Thinh Van Cao, 419 Mass. 383, 386-387, 644 N.E.2d 1294, cert. denied, --- U.S. ----, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995): whether art. 14 ⁶ provides more substantive protection to a person than does the Fourth Amendment in defining the moment at which a person's personal liberty has been significantly restrained by the police, so that he may be said to have been "seized" within the meaning of art. 14. ⁷

"Massachusetts courts have adhered to the test set forth in the Mendenhall- Royer line of cases [Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct 1870, 64 L.Ed.2d 497 (1980) ] decided prior to Hodari D. as the proper analysis whether a seizure has occurred under art. 14 of the Massachusetts Constitution." Commonwealth v. Thinh Van Cao, supra at 387, 644 N.E.2d 1294. See Commonwealth v. Willis, 415 Mass. 814, 817 n. 4, 616 N.E.2d 62 (1993). That analysis provides that a person is "seized" by a police officer "if, in view of all of 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, supra at 554, 100 S.Ct. at 1877. See Commonwealth v. Thinh Van Cao, supra; Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979 (1991). ⁸ The Hodari D. decision represents a revision of the United States Supreme Court's definition of seizure, see Commonwealth v. Thinh Van Cao, supra at 386, 644 N.E.2d 1294, as well as a departure from that Court's precedent. See California v. Hodari D., supra 499 U.S. at 629-642, 111 S.Ct. at 1552-1559 (Stevens, J., dissenting). We implied in the Thinh Van Cao opinion that we might not accept this revised definition of the term "seizure," which has been widely criticized, ⁹ for the purpose of art. 14 analysis. ¹⁰ See State v. Oquendo, 223 Conn. 635, 651, 613 A.2d 1300 (1992) (rejecting reasoning in Hodari D. decision on basis of State Constitution); State v. Quino, 74 Haw. 161, 170, 840 P.2d 358 (1992) (same), cert. denied, 507 U.S. 1031, 113 S.Ct. 1849, 123 L.Ed.2d 472 (1993); Matter of Welfare of E.D.J., 502 N.W.2d 779 (Minn.1993) (same); State v. Tucker, 136 N.J. 158, 165, 642 A.2d 401 (1994) (same); People v. Hollman, 79 N.Y.2d 181, 195-196, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992) (same); Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (Pa.1996) (same). ¹¹

The majority's decision in the Hodari D. case rejected the assertion that pursuit could be a seizure in constitutional terms by reference to the common law definition of arrest (equating "seizure" with "arrest"), ¹² and by observing that, as matter of policy, it would be unwise to reward a flight from the police by the exclusion of evidence discarded during the flight. We have on occasion invoked common law principles to construe the language of art. 14, see Jenkins v. Chief Justice of the Dist. Court Dep't, 416 Mass. 221, 231- 233 & n. 20, 619 N.E.2d 324 (1993), but we have never suggested, nor could we properly suggest, that the strictures of the common law should operate to diminish the protection from abuse of official power that art. 14 was intended to afford to the citizens of the Commonwealth. ¹³ See id. at 230, 619 N.E.2d 324 (art. 14 was a response to "unchecked control over the liberty of the people" inherent in British Crown's general warrants and writs of assistance). See also Commonwealth v. Ford, 394 Mass. 421, 426, 476 N.E.2d 560 (1985) (art. 14 requires exclusion of evidence seized in violation of constitutional rights); Commonwealth v. Upton, 394 Mass. 363, 365, 476 N.E.2d 548 (1985) (common law of Massachusetts did not mandate exclusion of illegally obtained evidence).

Moreover, we do not write on a blank slate on the question of police pursuit as an assertion of governmental authority having constitutional implications. In Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981), we considered a case involving facts similar to those recited in the Hodari D. decision. The defendant in the Thibeau case was riding a bicycle in the Jamaica Plain section of Boston around 10 P.M. in August, 1979. Two police vehicles, one of them marked, pulled up alongside him. The defendant looked at the marked cruiser, turned sharply to his left, and pedalled away. Using his siren, the officer in the unmarked cruiser pursued the defendant, ultimately reaching out, grabbing him, and forcing him to the sidewalk. During the ensuing search of the defendant's person, the officer discovered narcotics. Id. at 763, 429 N.E.2d 1009. Clearly, the officer had...