Commonwealth v. Chin-Clarke

• Decision Date: 09 June 2020
• Docket Number: No. 18-P-1440,18-P-1440
• Citation: 149 N.E.3d 839,97 Mass.App.Ct. 604
• Parties: COMMONWEALTH v. Jamal CHIN-CLARKE.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 604

149 N.E.3d 839

COMMONWEALTH

v.Jamal CHIN-CLARKE.

No. 18-P-1440

Appeals Court of Massachusetts, Suffolk..

Argued December 12, 2019.

Decided June 9, 2020.

Alyssa Hackett, Committee for Public Counsel Services (Patrick Levin, Committee for Public Counsel Services, also present) for the defendant.

Amanda Cascione, Assistant District Attorney, for the Commonwealth.

Present: Meade, Shin, & Singh, JJ.

SHIN, J.

The defendant appeals from an order denying his motion to suppress evidence obtained following a stop and frisk of his person. The stop occurred after Boston Police Officer Michael McHugh observed the defendant on a city sidewalk with a man holding a bag of what looked like new clothes, which McHugh suspected were stolen. Because we conclude that McHugh did not have reasonable suspicion of criminal activity to justify the stop, we reverse.

Background. The motion judge's factual findings are unchallenged on appeal. We supplement those findings with facts drawn from McHugh's testimony, which the judge expressly credited, see Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015), and from our independent observations of the surveillance video entered as an exhibit at the hearing, see Commonwealth v. Tremblay, 480 Mass. 645, 654-655, 107 N.E.3d 1121 (2018).

On the morning of January 27, 2017, McHugh was on a "plainclothes, walking beat" in the area of Boylston Street between Washington and Tremont Streets in downtown Boston. This area "is dominated by commercial properties and has heavy pedestrian foot traffic" and, by McHugh's description, is high in crime in that it is "frequented by a lot of people who sell and buy drugs, people who have drug problems, and that causes other problems. There's larcenies and robberies, shoplifting, assaults, public intoxication, trespassing ... that kind of thing." McHugh had previously seen people selling or trading stolen items on the street and had made several arrests in the area for shoplifting. "[T]hings that [he] ... look[s] for" as indicative of shoplifting are "numerous kind[s] of odd items in a bag," items "with the tags still on them," and "bag[s] that might not be associated with the store that things were purchased from."

Around 9:20 A.M. , McHugh was near St. Francis House, a daytime shelter that provides services to homeless people, including help with drug addiction, social services, meals, and clothing.¹ By the front door were three men, not known to McHugh, "looking in a plastic shopping bag and talking to each other." As McHugh drew closer, he saw "that there was some clothing in the bag, and some of it was outside of the bag and it had the tags."

McHugh heard one of the men -- he could not recall who -- say, "[H]ow much is this?" He also saw one man, later identified as Milton Noj, hold up some merchandise, an item of clothing. McHugh saw no security devices attached to any of the items in the bag, and he could not recall what store name was on the tags or on the bag. He was also unaware of any reports of shoplifting in the area that day.

Nonetheless, suspecting that "some commerce was going on," McHugh walked up to the men and asked, "[W]hat's up guys. Is that stuff stolen?" Noj appeared startled, said, "[W]hoa," and backed up. McHugh identified himself as a police officer and told the third man to leave.² Responding to McHugh, Noj initially stated that he had purchased the items in the bag at the Natick Mall. When McHugh asked for receipts, Noj stated he did not have any and that his mother gave him the items.

While McHugh was talking to Noj, he noticed that the defendant had his hands in his pockets and was looking up and down the street. McHugh told the defendant to remove his hands from his pockets and to "stand over there" against the exterior wall of St. Francis House. The defendant complied. He also showed McHugh the inside of the bag he was carrying.

Turning his attention back to Noj, McHugh asked for his name and date of birth and entered the information into an "iPad" tablet computer that he carried while working to "access a couple of different applications that are helpful, mostly the Criminal Justice Information System." Upon verifying Noj's identity,³ McHugh told him to stand facing the wall and "to stay standing like he was." Noj complied, standing a few feet away from the defendant with his face inches from the wall.

As this was occurring, the defendant "appeared fidgety," "looked a little nervous," and "was looking up and down the street." After instructing Noj to stand facing the wall, McHugh asked the defendant for his identification.⁴ The defendant "hesitated noticeabl[y]" before giving the name "Dana Clarke" and a date of birth. McHugh entered that information into the iPad and was able to find a driver's license photograph for a Dana Clarke, who looked "similar" to the defendant. McHugh was unsure, however, if the defendant was actually the person in the photograph. When McHugh asked the defendant for his Social Security number, the defendant said that he did not know it. Sometime during this conversation (it is unclear from the record precisely when), McHugh noticed that the defendant's hands were in his pockets and asked him to remove them. Although the defendant complied, "within a minute or two, he put his hands back inside of his ... clothing."

McHugh's uncertainty about the defendant's identity "gave [him] a heightened sense of concern that something might be wrong," and so he had the defendant and Noj sit on the ground and called for backup.

Less than two minutes later, Officer Fabien Belgrave arrived at the scene and told the defendant to stand up so that he could get a better look at the defendant's face. The officers also had the defendant remove his hood and eyeglasses. Based on other images Belgrave found using the iPad, the officers ultimately determined that the defendant was not the Dana Clarke depicted in the driver's license photograph.

At this point, given the defendant's nervousness and his "sort of bizarre answers to [the officers'] questions," McHugh "thought it would be prudent to put him in handcuffs until [they] could kind of sort out what was going on there." As McHugh reached out to handcuff the defendant, the defendant spun around, striking Belgrave in the chest and causing all three men to fall to the ground.⁵ Two other officers arrived, and together they were able to handcuff the defendant.⁶ One officer then pat frisked the defendant and found a loaded firearm, nine bags of heroin, and twenty-three bags of "crack cocaine" in "a fanny pack that ... had been inside of [the defendant's] pants." The defendant was arrested and transported to the police station where, at booking, one hundred dollars in cash and a cell phone were inventoried.

Discussion. "Absent clear error, we accept and adopt the findings of the motion judge, but we ‘independently determine the correctness of the judge's application of constitutional principles to the facts as found.’ " Commonwealth v. Narcisse, 457 Mass. 1, 5, 927 N.E.2d 439 (2010), quoting Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007). It is the Commonwealth's burden to show that the seizure and frisk of the defendant were within constitutional limits. See Narcisse, supra.

We begin with the question of when the defendant was seized. The Commonwealth argued at the motion hearing, and the judge concluded, that the encounter did not escalate to an investigatory stop until McHugh tried to place the defendant in handcuffs. On appeal, however, the Commonwealth concedes that the defendant was seized when McHugh directed him to stand by the wall and asked for identification. We agree that the defendant was seized no later than this point.⁷

A person is seized in the constitutional sense when "an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay." Commonwealth v. Matta, 483 Mass. 357, 362, 133 N.E.3d 258 (2019). By directing the defendant to stand by the wall, McHugh "was communicating what a reasonable person would understand as a command that would be enforced by the police power." Commonwealth v. Barros, 435 Mass. 171, 176, 755 N.E.2d 740 (2001). The language McHugh used, "stand over there," would have indicated to a reasonable person that compliance would be compelled. By that point McHugh had already asserted his authority over the situation by telling the third man to leave. He then further asserted his authority by running a records check on Noj and ordering him "to stay standing like he was" with his face inches from the wall. Certainly, by the time McHugh asked the defendant for his identification, he had objectively communicated that he would use his police power to compel the defendant to stay. See Matta, supra at 365, 133 N.E.3d 258 (defendant seized "once the officer ordered him to stop, and then chased him"); Barros, supra (similar); Commonwealth v. Harris, 93 Mass. App. Ct. 56, 61, 96 N.E.3d 729 (2018) (defendant seized when "officers secured identification from each of [his] companions and began calling in that information").

The question then is whether, at the time of the seizure, McHugh had reasonable suspicion that the defendant "was committing, had committed, or was about to commit a crime." Matta, 483 Mass. at 365, 133 N.E.3d 258, quoting Commonwealth v. Martin, 467 Mass. 291, 303, 4 N.E.3d 1236 (2014). Reasonable suspicion must be grounded in "specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Barreto, 483 Mass. 716, 720, 136 N.E.3d 697 (2019), quoting Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984).

When McHugh told the defendant to stand by the wall and asked for identification, he knew the following facts: (1) Noj had a bag of clothes with tags on them; (2) the three men were looking in the bag; (3) one of the men said, "[H]ow much is this?"; ...