Commonwealth v. Chism
| Decision Date | 03 March 2015 |
| Docket Number | 001,ESCR2013-01446 |
| Parties | Commonwealth v. Philip Chism, Youthful Offender No. 129605 |
| Court | Massachusetts Superior Court |
FINDINGS OF FACT AND RULINGS OF LAW ON DEFENDANT'S MOTION TO SUPPRESS
The defendant, Philip Chism, moves this court to suppress his statements and certain physical evidence obtained from him due to alleged violations of his rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. The defendant further contends that the police unjustifiably exceeded their function as community caretakers when they stopped him on Old Route 1, conducted a pat frisk unlawfully searched his backpack without the support of a written inventory policy and violated his Miranda rights during interviews at the Topsfield and Danvers police stations. For the following reasons, the defendant's motion is DENIED in part and ALLOWED in part.
Philip Chism, a fourteen-year-old student at Danvers High School was reported missing by his mother, Diana Chism, during the early evening of October 22, 2013. A picture of Mr. Chism was disseminated by the Danvers police department via Twitter and Facebook posts. Danvers residents also received a reverse 911 call.
At roughly the same time Philip Chism was reported missing Colleen Ritzer, a Danvers High School math teacher, failed to arrive home after school. Her parents were concerned because it was not like Ms. Ritzer to deviate from her routine without alerting her parents.
October 22, 2013, Topsfield police officer Neal Hovey was at home with his family in Danvers preparing for his midnight to 8:00 a.m. shift. Officer Hovey learned before heading to work that there was a report of a missing fourteen-year-old student from Danvers High School.
Officer Hovey was concerned about the missing teen. He informed dispatch of his intention to check the area of Topsfield that borders Danvers to look for the missing student. Before Officer Hovey left for work, however, he received a call from his dispatcher that led him to believe that the missing student had taken his own life.
On October 23, Officer Hovey was joined on his shift by one fellow officer, Joseph DeBernardo and Dispatcher Joseph Newton. The dispatcher from the previous shift, Larry Nestor called the Topsfield police station to report having seen a black male walking on Old Route 1 in Topsfield on the highway close to the tree line. Upon receiving this information Officers Hovey and DeBernardo responded to the area of the report. The Topsfield Police have a consistent policy of checking on people they observe walking on Old Route 1 to make sure that the person is safe and to offer transportation to a safer location.
The Topsfield police station is located on Old Route 1, north of Danvers. Officer Hovey, in uniform and operating a marked police cruiser, drove south out of the police station toward the area of Salem Road on Old Route 1. Approximately .2 miles from the Topsfield police station, he observed an individual walking north on the southbound lane of the road. This area of Old Route 1 is on a hill with the incline on the southbound side. The area is devoid of light from any businesses. The few houses in the area are set well off the road. No street lights illuminate the area. This area of Old Route 1 is unsafe for walking. The individual was on a little bridge that further narrowed the already narrow and darkened highway. There is no shoulder on the bridge.
Officer Hovey did a three-point turn in his police cruiser and parked in the middle of the road. The time was approximately 12:28 a.m. Officer Hovey activated his blue emergency lights for his own safety and the safety of the driving public. The speed limit in the area is 45 miles per hour. Southbound drivers would only see the police cruiser after coming up the incline.
Officer Hovey notified the station of his location and then exited his cruiser to cross the street. The individual, identified at the hearing on the motion to suppress as the defendant, Philip Chism, stopped in unison with Officer Hovey's cruiser. Officer Hovey observed the defendant to be wearing shorts, a zip-up sweatshirt, black knee socks and sneakers. The defendant's manner of dress seemed to Officer Hovey to be inappropriate considering the temperature was in the mid-forties.
Officer Hovey asked the defendant where he was going. The defendant responded: " no where." Officer Hovey then asked the defendant where he was coming from. The defendant responded: " Tennessee." Officer Hovey, once again, asked the defendant where he was going. The defendant, again, responded: " no where." During this exchange the defendant continued to look straight ahead as if Officer Hovey was not there.
As Officer Hovey approached the defendant he did not believe that the defendant was the missing juvenile. Indeed, until the defendant said he was " Philip Chism" three to five minutes later, Officer Hovey thought that the defendant was in his late teens or early twenties. The defendant was taller than Officer Hovey. The defendant's hands were in his sweatshirt pockets. He was also carrying a backpack over his shoulders.
Officer Hovey asked the defendant where he lived. The defendant responded that he had no address and had been walking for days. The defendant did not look disheveled. Officer Hovey then asked the defendant if he had identification on him. The defendant responded: " no." The lighting was such that Officer Hovey could not determine whether the defendant had any bulges or hard objects on him.
Officer Hovey then performed a pat frisk of the left front pocket of defendant's shorts. Unbeknownst to Officer Hovey, Officer DeBernardo had just arrived on scene at the time of the pat frisk. When Officer DeBernardo first arrived, Officer Hovey was already speaking to the defendant. Before exiting his cruiser, Officer DeBernardo radioed the station, maintained traffic flow, and only then approached the defendant and Officer Hovey.
Officer Hovey felt a hard piece of plastic in defendant's left pocket that felt to the officer to be an identification or a credit card. Officer Hovey then checked defendant's right pocket and felt a two-inch smooth hard oblong object. To avoid escalating the situation, Officer Hovey stepped back to await Officer DeBernardo.
When Officer DeBernardo first arrived, Officer Hovey was already speaking with the defendant. Officer Hovey did the pat frisk after Officer DeBernardo's arrival, but before Officer Hovey realized that Officer DeBernardo was present. Officer DeBernardo, upon arrival, had activated his blue lights, overhead take-down lights and spotlight to illuminate the area.
Officer DeBernardo observed the defendant repeatedly putting his hands in his sweatshirt. Officer DeBernardo then asked the defendant to take his hands out of his pockets and asked what the defendant had in his backpack. The defendant responded: " survival gear." Officer DeBernardo then took the backpack.
While traffic was sporadic, passing cars were traveling approximately 45 mph. Officer DeBernardo asked the defendant to come off the roadway. He escorted the defendant to the other side of the road between the two cruisers. The defendant was still not making eye contact with the officers. He appeared to Officer DeBernardo to be in " kind of a long-distant stare."
Officer Hovey asked the defendant to remove the contents of his pockets and place them on the trunk. The defendant complied and removed a rock and a driver's license, insurance card, and credit cards, all in the name of one " Colleen Ritzer." When the officers observed these items they were without information concerning Ms. Ritzer or a missing teacher from Danvers High School.
Officer Hovey then asked the defendant his name. The defendant responded: " Philip Chism." Both officers recognized his name and were immediately " elated" at having found the missing teen. Officer Hovey then went into what he described, and the court credits, as a " parent mode." He called the Danvers Police Department on his cell phone to confirm the name of the missing teenager. The time was just before 12:35 a.m.
Officer Hovey then asked the defendant where he got the credit card. The defendant responded that he found them at " Stop and Shop." The officers, knowing that there was no " Stop and Shop" in Topsfield, asked which " Stop and Shop." The defendant replied that he did not know. Officer Hovey asked where he had obtained the other identification. The defendant responded: " from her car."
The Danvers police requested that Topsfield officers bring the defendant to the Danvers police station. The Topsfield officers were unable to comply since only two officers were on duty. Officer DeBernardo asked the defendant if he would get into the back of the cruiser to get warm and accompany them to the police station. The defendant responded: " okay."
The defendant was placed, uncuffed, into the back of Officer Hovey's cruiser. In transporting the defendant to the police station, the officers also considered information they possessed concerning a possible larceny. The officers however, would have brought the defendant back to the Topsfield police station absent evidence of the larceny.
The defendant arrived at the Topsfield police station at 12:41 a.m. The defendant was escorted up a steep staircase into the station and brought to the booking area. The booking room is about twelve by twenty feet, well-lit, with a couple of desks and a wooden bench. The defendant would not have been able to see...
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