Com. v. White, 07-P-1815.

CourtAppeals Court of Massachusetts
Citation906 N.E.2d 1011,74 Mass. App. Ct. 342
Docket NumberNo. 07-P-1815.,07-P-1815.
PartiesCOMMONWEALTH v. Christian WHITE (and four companion cases<SMALL><SUP>1</SUP></SMALL>).
Decision Date01 June 2009
906 N.E.2d 1011
74 Mass. App. Ct. 342
COMMONWEALTH
v.
Christian WHITE (and four companion cases1).
No. 07-P-1815.
Appeals Court of Massachusetts, Suffolk.
Argued February 12, 2009.
Decided June 1, 2009.

[906 N.E.2d 1012]

Helle Sachse, Assistant District Attorney, for the Commonwealth.

Robert A. O'Meara, Boston, for Christian White.

John M. Goggins, Worcester, for Latoya Nunes.

Present: McHUGH, MILLS, & GRAHAM, JJ.

MILLS, J.


74 Mass. App. Ct. 343

This is the Commonwealth's appeal from the allowance of the motions to suppress filed by the defendants Christian White and Latoya Nunes. The weapons and ammunition charges are listed in the

906 N.E.2d 1013

margin.2 In their motions, both defendants claimed that the stop of their vehicle, exit orders, and patfrisks were unlawful. Nunes also claimed a Miranda violation. A Superior Court judge ultimately found that the stop of the defendants' vehicle was based upon a hunch, rather than reasonable suspicion, and ordered all evidence suppressed.3 We reverse.

Background.4 The judge's findings are essentially unchallenged, and we summarize. On February 2, 2006, Boston police were informed by a male victim that four black armed men had entered his apartment and beaten everyone, and that one assailant had thrown a pan of hot water on a female victim in the apartment. She was in shock, severely burned, and required immediate medical attention. Boston police Sergeant Detective O'Leary, the first to respond, was told by the male victim that he knew one of the assailants by name, and that the four men fled on foot. The male victim reported that one of the men wore a white bandana and that another wore a black shirt with writing on it, jeans, and black shoes or sneakers. The male victim reported that he was not able to describe the other individuals because they had forced him to keep his head down.

A few minutes later the male victim informed the detective

74 Mass. App. Ct. 344

that the men had fled in a red car, which was not otherwise described. The vehicle description, and other information given by the male victim, was broadcast over the police radio. Officers Gunn and Fitzgerald were patrolling in a marked cruiser searching for suspects. Less than five minutes after hearing that the men had fled in a red car, the officers noted a red car, which they pursued. Officer Gunn observed that the car was occupied by three to four individuals, that the driver was a black female, and that she and the front passenger wore white cloths on their heads. Officer Fitzgerald reported seeing four black males. In fact, the female driver, the defendant Nunes, "was wearing a bulky, hooded winter jacket that concealed her features. She also wore her hair up, wrapped in some type of [white] cloth so that [her hair] length was not visible."

The officers pursued the red car for one to two blocks (in a direction toward, not away from, the crime scene), and activated blue lights to signal the car to pull over. The red car moved to the side of the road and stopped without delay. The officers did not observe anyone in the car attempt to discard anything or make any furtive gestures. Officer Fitzgerald approached the driver's side door and Officer Gunn the passenger side. Officer Gunn spoke with the occupant of the front passenger seat (Melvin Scott), and the person seated behind him (Ernest Jenkins). Due to the violent nature of the crime under investigation and the fact that all of the suspects

906 N.E.2d 1014

were reported to be armed, Officer Gunn concentrated on watching Scott's and Jenkins's hands as they sat in the vehicle. "This became difficult as one of the men ... failed to abide by Gunn's command to show his hands. Due to his reluctance and the nature of the investigation, the police officers decided to remove the occupants from the car and perform patfrisks for weapons."

Officer Fitzgerald obtained the car keys from Nunes in order to prevent her from driving away. Other officers arrived at the scene. On the driver's side, Officer Erving removed White from the rear passenger seat. He was handcuffed as a safety precaution and, when pat frisked, a pistol was found in his waistband. Officer Erving yelled out, "Gun! Gun!" to warn the other officers. Officer Fitzgerald ordered Nunes to get out of the driver's seat and place her hands on the roof of the car. He then retrieved a

74 Mass. App. Ct. 345

weapon from her waistband. All four occupants of the car were arrested.

Discussion. a. The vehicle stop. "An investigatory stop of a motor vehicle is justified when the police have `a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom,' that a vehicle occupant `had committed, was committing, or was about to commit a crime.'" Commonwealth v. Haskell, 438 Mass. 790, 793, 784 N.E.2d 625 (2003), quoting from Commonwealth v. Alvarado, 427 Mass. 277, 280-281, 693 N.E.2d 131 (1998). "The standard is objective and is satisfied when `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.' Commonwealth v. Mercado, 422 Mass. [367,] 369[, 663 N.E.2d 243 (1996)], quoting from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968)." Commonwealth v. Emuakpor, 57 Mass.App.Ct. 192, 196-197, 782 N.E.2d 7 (2003).

Officers Gunn and Fitzgerald, who stopped the red car, acted on information provided by Detective O'Leary, which included...

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3 cases
  • Commonwealth v. Moriarty, 13-P-1662
    • United States
    • Appeals Court of Massachusetts
    • June 25, 2015
    ...inferences therefrom, that a vehicle occupant had committed, was committing, or was about to commit a crime." Commonwealth v. White, 74 Mass. App. Ct. 342, 345 (2009) (quotation marks and citation omitted). The motion judge made detailed and well-reasoned findings, which we conclude are not......
  • Commonwealth v. Nunes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 22, 2009
    ...N.E.2d 909 COMMONWEALTH v. NUNES. Supreme Judicial Court of Massachusetts. July 22, 2009. Further appellate review denied. 74 Mass.App.Ct. 342, 906 N.E.2d...
  • Commonwealth v. White
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 22, 2009
    ...N.E.2d 909 COMMONWEALTH v. WHITE. Supreme Judicial Court of Massachusetts. July 22, 2009. Further appellate review denied. 74 Mass.App.Ct. 342, 906 N.E.2d...

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