Commonwealth v. D.M.

Decision Date14 September 2021
Docket NumberNo. 20-P-944,20-P-944
Citation177 N.E.3d 165,100 Mass.App.Ct. 211
Parties COMMONWEALTH v. D.M.
CourtAppeals Court of Massachusetts

Dennis M. Toomey, Boston, for the juvenile.

Julianne Campbell, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Desmond, & Englander, JJ.

DESMOND, J.

Following an investigatory stop and patfrisk that resulted in the discovery of a firearm, the juvenile defendant was charged with carrying a firearm without a license, and he was subsequently indicted on that charge as a youthful offender. The juvenile filed a motion to suppress the firearm arguing that the police lacked reasonable suspicion for the stop and subsequent patfrisk. Following an evidentiary hearing, the judge denied the motion. Thereafter, the juvenile pleaded guilty to the charge, conditioned upon his right to appeal the denial of his motion to suppress. See Commonwealth v. Gomez, 480 Mass. 240, 252, 104 N.E.3d 636 (2018) ; Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). Because we conclude that the police lacked reasonable suspicion to stop the juvenile based on a nondescript tip from a confidential informant (CI), we reverse the order denying the motion to suppress.

Background. The judge made the following findings of fact, which we supplement with evidence in the record that was explicitly credited by the judge.1 See Commonwealth v. Jones-Pannell, 472 Mass. 429, 432, 35 N.E.3d 357 (2015). On Monday, September 21, 2015, a CI contacted Boston Police Detective Daniel Griffin, of the drug control unit, informing him that "a young, [B]lack male dressed in a black hoodie and blue jeans was in possession of a firearm,"2 and was located between Devon Street and Stanwood Street on Columbia Road in the Dorchester section of Boston. The CI further informed Detective Griffin that the male was accompanied by another Black male wearing "an off-white colored hoodie." As soon as he received this information,3 Detective Griffin relayed it to Sergeant Detective Bickerton, a supervisor of the Boston police department's youth violence strike force, and several officers from that unit proceeded to Columbia Road.

Two members of that unit, Officers Matthew Conley and Taylor Small,4 arrived at the area of Columbia Road in separate unmarked police cruisers with their respective partners.5 Officer Conley got out of his vehicle, and as he walked toward the corner of Columbia Road and Stanwood Street, he observed a Black male, standing alone, wearing an off-white hooded sweatshirt. He recognized this male as Ricky Norwood. Conley was aware that Norwood was an associate of the "Columbia Road Gang," and that he had had prior firearm charges leveled against him. Officer Conley and his partner approached Norwood, had a conversation with him and pat frisked him, but they did not discover any firearms in his possession.6

Not seeing anyone accompanying Norwood or fitting the description provided by the CI, Officer Small began to canvass the area for a Black male wearing a black hooded sweatshirt and blue jeans. While doing so, Officer Small noticed a Black male, wearing a black and gray hooded sweatshirt, standing outside on the sidewalk between a barbershop and a liquor store on Columbia Road. The male "was on the phone" and appeared to be "looking up and down the street, staring at [the officers]." The officers approached the male, later identified as Darius Hollis Carmen, and conducted a patfrisk of his person. They did not find any weapons in his possession. After the officers completed their interaction with Carmen, Carmen and Norwood walked away from the area together.

While continuing to look for the person described by the CI, Officer Small walked past the barbershop and noticed another Black male, wearing a black sweatshirt and blue jeans, seated inside. He alerted Officer Conley, who then peered inside the window of the barbershop and saw the juvenile. Officer Conley was familiar with the juvenile from prior encounters and knew him to be under the age of eighteen. He also knew that he was an "associate" of the Columbia Road gang. Officer Conley informed Sergeant Detective Bickerton and Officer Small of his observation, and the officers entered the barbershop. The juvenile was seated in a row of chairs by the entrance and "talking on the phone." The officers approached the juvenile and "instructed him to get off the phone and ... to stand up." The juvenile asked why, and the officers "pulled him up ... to stand." Once the juvenile was upright, the officers observed a bulge on the right side of his waist. The officers, from their training and experience, believed the bulge to be consistent with a firearm. Officer Small pat frisked the juvenile and felt what he believed to be a firearm. He lifted the juvenile's shirt and removed a firearm from his waistband. The juvenile was immediately brought to the floor and placed under arrest.

Discussion. 1. Standard of review. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given ... testimony presented at the motion hearing." Commonwealth v. Meneus, 476 Mass. 231, 234, 66 N.E.3d 1019 (2017), quoting Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004). We, however, "review independently the application of constitutional principles to the facts found." Commonwealth v. Warren, 475 Mass. 530, 534, 58 N.E.3d 333 (2016), quoting Wilson, supra. "The Commonwealth bears the burden of demonstrating that the actions of the police officers were within constitutional limits." Meneus, supra.

2. Reasonable suspicion. The judge ruled, and the Commonwealth concedes, that the juvenile was seized, or stopped in the constitutional sense, when the officers approached the juvenile in the barbershop, ordered him to stand up, and then "put their hands on him to assist him from the chair." See Commonwealth v. Matta, 483 Mass. 357, 363, 133 N.E.3d 258 (2019) (seizure effected where, "in the circumstances, a reasonable person would believe that an officer would compel him or her to stay"); Commonwealth v. Shane S., 92 Mass. App. Ct. 314, 322, 83 N.E.3d 837 (2017) (juvenile constitutionally seized when officer put his hands on juvenile's chest).

"Once a seizure has occurred," the question becomes whether, at the time of the seizure, the police had "reasonable suspicion that the person was committing, had committed, or was about to commit a crime." Meneus, 476 Mass. at 235, 66 N.E.3d 1019, 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’ rather than on a hunch." Warren, 475 Mass. at 534, 58 N.E.3d 333, quoting Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007). "The essence of the reasonable suspicion inquiry is whether the police have an individualized suspicion that the person seized is the perpetrator of the suspected crime." Warren, supra. See Commonwealth v. Depina, 456 Mass. 238, 243, 922 N.E.2d 778 (2010).

According to the judge, the following information provided the police with reasonable suspicion to stop the juvenile: the reliability of the CI, the level of detail provided by the CI, the fact that the juvenile "matched the description of a young, [B]lack man with a gun,"7 the serious nature of the crime being investigated, the geographic and temporal proximity of the juvenile to the information contained in the CI's tip, and the fact that the incident took place in a high crime neighborhood.8 We, however, are not persuaded that the tip provided by the CI, combined with other information known to the officers, was sufficiently specific to establish reasonable suspicion for the stop.

a. Reliability of the CI. To demonstrate that the information provided by the CI "bears adequate indicia of reliability, the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test)." Commonwealth v. Lopes, 455 Mass. 147, 155-156, 914 N.E.2d 78 (2009). "Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990).

At the hearing on the motion to suppress, Detective Griffin testified that he knew the CI's identity, that he had worked with this CI in the past, and that, between 2010 to 2014, the CI had provided information that led to the arrest of four individuals for the possession of firearms and recovery of those firearms.9 That testimony more than satisfied the veracity test, and although there was less information provided regarding the CI's basis of knowledge, we do not here question that the CI's information was sufficiently reliable, under the less rigorous standard of Lyons, such that the police were entitled to rely on it during their investigation of the tip. See Commonwealth v. Byfield, 413 Mass. 426, 431, 597 N.E.2d 421 (1992) (informant's veracity established where prior information led to arrest and conviction). See also Commonwealth v. Alfonso A., 438 Mass. 372, 376, 780 N.E.2d 1244 (2003) (police knowledge of informant's identity weighs in favor of reliability).

b. Particularity of description and whether it matched the juvenile. The fact that the information bore the requisite indicia of reliability does not end the inquiry. See Depina, 456 Mass. at 243, 922 N.E.2d 778. The Commonwealth must also prove that the description of the suspect "was sufficiently detailed and particularized that it was reasonable for the police to stop any person matching that description." Id. at 245, 922 N.E.2d 778. While "the...

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