Com. v. Willis

• Decision Date: 15 July 1993
• Citation: 616 N.E.2d 62,415 Mass. 814
• Parties: COMMONWEALTH v. Marco WILLIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 62

616 N.E.2d 62

415 Mass. 814

COMMONWEALTH v. Marco WILLIS.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 5, 1993.

Decided July 15, 1993.

Kenneth H. Anderson, Asst. Dist. Atty., for Com.

Benjamin H. Keehn, Committee for Public Counsel Services, for defendant.

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

WILKINS, Justice.

We once again consider the highly fact-based questions whether, in particular circumstances, (1) a police stop of a defendant was an arrest or merely a threshold inquiry and (2), if it was a threshold inquiry, whether there was a sufficient factual basis for conducting that preliminary inquiry. ¹

A judge sitting in the Boston Municipal Court ruled that the police arrested the defendant and that they lacked probable cause to do so. He also concluded that, even if the police had not arrested the defendant, but had only detained him temporarily, the police had no justified reasonable suspicion to detain him. The motion judge, therefore, allowed the defendant's motion to suppress a gun and ammunition that the police had seized from the defendant, as well as statements the defendant had made to the police.

A single justice of this court allowed the Commonwealth's request for an interlocutory appeal and ordered that the appeal be entered in this court. We acknowledge that the issues are close, but we conclude that the police were only conducting a preliminary inquiry and that they had a proper basis for doing so. Thus the order allowing the defendant's motion to suppress should be vacated, and an order denying that motion should be entered.

Just before 3 P.M. on January 5, 1992, the Flint, Michigan, police department sent a teletype communication to the Boston police department. The substance of the communication was that Marco Willis, a black male, five feet ten inches tall, with short hair, last seen wearing a blue jean jacket and pants and black tennis shoes, should be on a Greyhound bus arriving in Boston at approximately 6:50 P.M. He should be carrying a blue and white pillowcase with stripes and no other luggage. Willis was said to be armed with a thirty-eight caliber handgun, taken from his grandfather's house, along with five live rounds. The communication purported to give the gun's serial number and the name of the person to whom the gun was registered. It asked that, if Willis were apprehended, the weapon be confiscated and the Flint police advised.

At 4 P.M. that day, Sergeant Richard Famolare of the Boston police department telephoned the Flint police department to verify the information. The officer who had sent the teletype message had gone home for the day. Famolare obtained no further information from Flint. At roll call that afternoon, Famolare learned that Officer William Reynolds had arrested Willis in 1991 for armed robbery. ²

Famolare, Reynolds, and two other officers went to the Greyhound bus terminal in plain clothes but with their badges visible. When Willis got off the bus carrying a striped pillowcase, Famolare and two officers, with their guns drawn, followed Willis. Reynolds went through the bus terminal and confronted Willis from the opposite direction in a driveway down which Willis was walking. No other people were in the driveway. Reynolds, with his gun out and his badge visible, called, "Marco, police, take your hand out of your right pocket." Willis looked at Reynolds and then looked back at the other officers. He removed his hand from his pocket and raised his hands. One of the officers pushed Willis's arms all the way up above his head, and Famolare removed a gun from Willis's pants. Willis volunteered that he had taken the gun for his own protection.

We state a fact as to which there was testimony but on which the motion judge made no specific finding. Famolare testified that "[w]e had expected the suspect to have a loaded firearm on him," and that that was the reason that he had his gun outside its holster. The judge seems to have overlooked this testimony when he stated in his analysis that "[t]he officers did not testify that they feared for their safety." While it is true that the two officers who were witnesses, Famolare and Reynolds, did not both so testify, Famolare's testimony indicated that he had been concerned for his safety. ³ Famolare and Reynolds were the only witnesses. The motion judge did not discredit their testimony, and we do not usurp his function in supplementing his findings in this respect.

In the circumstances, we are entitled to conclude and do conclude that the officers drew their weapons because they were concerned for their safety. We further conclude that their concern was reasonable. The fact that the officers were reasonably concerned for their safety is crucial in our subsequent analysis of the question whether the police arrested Willis, or only made a threshold inquiry of him. If the police arrested Willis, the physical evidence seized from Willis and his statements should have been suppressed because the Commonwealth rightly concedes that the police did not have probable cause justifying an arrest. If, however, the police were conducting a threshold inquiry, we must consider whether the police had a reasonable suspicion, based on specific, articulable facts and reasonable inferences, that the defendant had committed, was committing, or was about to commit a crime. See Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990); Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). See also Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-1881, 20 L.Ed.2d 889 (1968). ⁴

1. We first consider whether there was a reasonable suspicion, based on specific articulable facts, that the defendant had committed or was committing a crime. See Commonwealth v. Wren, supra. If so, a Terry-type investigative stop would be justified. See Commonwealth v. Owens, 414 Mass. 595, 599, 609 N.E.2d 1208 (1993), and cases cited. We turn to this question first because, if there was not even a reasonable suspicion justifying a Terry-type police stop, there would be no need to decide whether the seizure of the defendant was an arrest, which would have had to have been based on probable cause, or just an investigative stop. Moreover, we deal with this issue first because, if reasonable suspicion justified stopping the defendant for a preliminary inquiry, the strength and nature of that suspicion has a bearing, as we shall explain, on the question whether the police intrusion on the defendant was an arrest or simply a stop for a preliminary inquiry. See Commonwealth v. Borges 395 Mass. 788, 794, 482 N.E.2d 314 (1985); Commonwealth v. Bottari, 395 Mass. 777, 782, 482 N.E.2d 321 (1985).

The teletype communication from Michigan appears to be based on information furnished by an undisclosed informant. "[I]f the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of these factors. Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, supra, 409 Mass. at 19, 564 N.E.2d 390. When the police rely on a transmitted message to conduct an investigatory stop, the Commonwealth must establish its indicia of reliability, both the reliability of the informant and the basis of the informant's knowledge. Commonwealth v. Cheek, 413 Mass. 492, 494-495, 597 N.E.2d 1029 (1992), and cases cited.

We disagree with the motion judge's conclusion that the informant's basis of knowledge concerning the defendant's conduct was not established in this case. The teletype message itself goes a long way toward showing the informant's basis of knowledge by providing detail concerning the pillowcase, the serial number of the gun, the name of the registered owner, and the fact that the gun was taken from the house of the defendant's grandfather. When the defendant, known to the Boston police, got off the bus, as predicted in the teletype message, carrying a distinctively striped pillowcase, the information sent from Michigan was significantly corroborated, particularly, and rather conclusively, as to the soundness of the informant's basis of knowledge. See Commonwealth v. Bakoian, 412 Mass. 295, 301-302, 588 N.E.2d 667 (1992). Compare Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). Moreover, while we agree with the motion judge that the teletype message tells us nothing about the credibility of the informant or about the reliability of the information, the corroboration of portions of the teletype information by the police who met the bus makes a sufficient but "less rigorous showing" (see Commonwealth v. Lyons, supra ) that the information was reliable and thus warranted a reasonable suspicion that the defendant was carrying a stolen gun which might be loaded.

Although each case depends on its facts, this case is more like Commonwealth v. Anderson, 366 Mass. 394, 399-400, 318 N.E.2d 834 (1974), in which an anonymous tip about a bus passenger was sufficiently corroborated to justify a threshold inquiry, than it is like Commonwealth v. Lyons, supra, 409 Mass. at 20-21, 564 N.E.2d 390, in which a tip, lacking the basis both of an informant's knowledge and of his reliability and not corroborated by significant specific facts concerning the suspect, did not justify a threshold inquiry. We agree, however, that the Commonwealth has properly declined to assert that there was probable cause to arrest the defendant. See Commonwealth v. Spence, 403 Mass. 179, 181-182, 526 N.E.2d 1054 (1988).

2. In deciding whether this encounter was an arrest or "merely" a stop, we do not apply a bright line test. The answer depends on the proportional relationship of...