Commonwealth v. Depeiza, SJC-09810

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 449 Mass. 367,868 N.E.2d 90
• Docket Number: SJC-09810
• Parties: COMMONWEALTH v. Michael DePEIZA.
• Decision Date: 15 June 2007

868 N.E.2d 90 449 Mass. 367 COMMONWEALTH
v.
Michael DePEIZA. SJC-09810 Supreme Judicial Court of Massachusetts, Suffolk. Argued March 8, 2007. Decided June 15, 2007.

[868 N.E.2d 93]

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Robert E. Fox, Brighton, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

449 Mass. 367

Two Boston police officers found a loaded handgun in Michael DePeiza's jacket pocket when they pat frisked him in a late-night encounter. The defendant was charged with illegal possession of a firearm and ammunition, in violation

449 Mass. 368

of G.L. c. 269, § 10(a) and (h). After a hearing in the Dorchester Division of the Boston Municipal Court, a judge denied the defendant's motion to suppress the handgun, ammunition, and statements he made to police. Following a jury-waived trial, the defendant was convicted of both charges. He appealed from the convictions, claiming that his motion to suppress was improperly denied. He argued that the handgun and ammunition found during the patfrisk were the fruit of an illegal Terry-type investigative stop and protective frisk. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Appeals Court reversed the judgments of the District Court. Commonwealth v. DePeiza, 66 Mass.App.Ct. 398, 848 N.E.2d 419 (2006). We granted the Commonwealth's application for further appellate review. We affirm the denial of the motion to suppress, and the defendant's convictions.

1. Background. We recite the facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing. See Commonwealth v. Feyenord, 445 Mass. 72, 73, 833 N.E.2d 590 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006).

On April 27, 2005, shortly after midnight, the defendant was walking through the Dorchester section of Boston while talking on his cellular telephone. Officers John Conway and Dean Binkerton were on patrol in the neighborhood, a high-crime area known for a number of incidents involving firearms. As they drove past the defendant in their unmarked vehicle he attracted their attention because of his odd way of walking. As he held his telephone to his ear with his left hand, he held his right arm stiff and straight, pressed against his right side. As part of their training at the police academy the officers had learned that this distinctive "straight arm" gait was one sign of a person carrying a firearm by pressing it against his body with the stiff arm.

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The officers reversed direction, and, without activating their lights or sirens, drove past the defendant a second time. As they approached the defendant again they called out to him.¹ They engaged him in a short conversation during which the defendant continually shielded his right side from the view of the officers,

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as if trying to hide something. At some point during that conversation both officers stepped out of the car. The officers noticed the defendant looking from left to right and shifting his weight from side to side, actions which, in the officers' experience, were signs that the defendant was nervous and likely to run. The defendant told the officers that his family lived nearby, but that he was from New York City. Without being asked, he offered his student identification and driver's license to the officers. As the defendant reached for his identification the officers noticed two additional details that further raised their suspicions. First, as the defendant reached into his right rear pants pocket, he continued to turn his right side away from them in an awkward motion. Second, they noticed that the right pocket of his jacket appeared to contain "something heavy." Binkerton reached out to pat frisk the defendant, who jumped back. Binkerton explained that he wanted to conduct a patfrisk, and reached out again to conduct the frisk. A handgun was recovered from the defendant's right jacket pocket.

2. Discussion. When reviewing a motion to suppress, we adopt the factual findings of the motion judge absent clear error. Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004), and cases cited. We "independently determine the correctness of the judge's application of constitutional principles to the facts as found." Id. It is the Commonwealth's burden to demonstrate that the police officers' stop and frisk of the defendant was within constitutional limits. Commonwealth v. Vuthy Seng, 436 Mass. 537, 550, 766 N.E.2d 492, cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002), and cases cited.

a. Investigative stop and protective frisk. Before determining whether the actions of the officers in stopping the defendant were constitutionally permissible, we must first identify the moment when the seizure occurred. See Commonwealth v. Sykes, 449 Mass. 308, 314, 867 N.E.2d 733 (2007); Commonwealth v. Barros, 435 Mass. 171, 173, 755 N.E.2d 740 (2001). "[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification." Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996). A person is seized by the police only when, in light of all of the attending circumstances, a reasonable person in that situation would not feel free to leave. Id. at 786, 665 N.E.2d 93.

449 Mass. 370

The officers did not seize the defendant when they first stepped out of their car. Considering all of the circumstances, a reasonable person in the defendant's situation would have felt free to leave during that initial part of the encounter. The tone of the officers' interaction with the defendant was conversational and not aggressive. See, e.g., Commonwealth v. Thomas, 429 Mass. 403, 406, 708 N.E.2d 669 (1999) (no seizure where officer asked questions without show of authority); Commonwealth v. Fraser, 410 Mass. 541,

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544, 573 N.E.2d 979 (1991) (no seizure where officer's request that defendant remove hands from pocket "was not sufficiently coercive or intimidating"); Commonwealth v. Gunther G., 45 Mass.App.Ct. 116, 118, 695 N.E.2d 696 (1998) (no seizure in the absence of "intimidating or assertive conduct"). The positioning of the two officers on either side of the defendant did not block his path or otherwise restrict his freedom of movement. Compare Commonwealth v. Barros, supra at 174, 755 N.E.2d 740 (no seizure where police remained in cruiser without impeding or restricting defendant's freedom of movement), and Commonwealth v. Pagan, 63 Mass.App.Ct. 780, 782, 829 N.E.2d 1168 (2005) (no seizure "by simply alighting from the police cruiser and approaching" defendant), with Commonwealth v. Thompson, 427 Mass. 729, 733, 696 N.E.2d 105, cert. denied, 525 U.S. 1008, 119 S.Ct. 524, 142 L.Ed.2d 435 (1998) (concluding there was seizure where police parked cruiser to block defendant's car). The officers did not order the defendant to stop or to answer their questions. See, e.g., Commonwealth v. Barros, supra at 175-176, 755 N.E.2d 740 (request that defendant stop for questions transformed into seizure by later pursuit and command to "[c]ome here"); Commonwealth v. Grandison, 433 Mass. 135, 138-139, 741 N.E.2d 25 (2001) (encounter became stop when officer emerged from cruiser and commanded defendant to stop). Any subjective intent the officers may have had to pat frisk the defendant could have no impact on whether he felt free to leave. See, e.g., Commonwealth v. Barros, supra (officers' uncommunicated intent irrelevant to "free to leave" analysis). Nor was the defendant seized when he voluntarily offered his identification to the officers. That the officers accepted the identification when offered, and held it during the brief conversation that followed, does not "amount to a show of official authority such that `a reasonable person would have believed that he was not free to leave.'" Florida v. Royer, 460

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U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.).

The Commonwealth concedes that the officers seized the defendant once they announced their intention to frisk him.² Such an investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime. See Commonwealth v. Wilson, 441 Mass. 390, 393-394, 805 N.E.2d 968 (2004); Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). That suspicion must be grounded in "`specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a `hunch.'" Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Commonwealth v. Sykes, supra at 314, 868 N.E.2d 95, quoting Commonwealth v. Grandison, supra at 139, 741 N.E.2d 25.

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Although the question is a close one, we conclude that by the time the officers announced the patfrisk, they reasonably suspected that the defendant was committing the crime of carrying an illegal firearm, and the stop was therefore justified. This conclusion follows from the combination of the many factors found by the motion judge. The police encountered the defendant shortly after midnight in a high-crime neighborhood with increasing incidences of firearm violence. He was walking with his right arm held stiff and straight against his body, which, based on the...