Commonwealth v. Evans

• Decision Date: 31 July 2015
• Docket Number: No. 14–P–975.,14–P–975.
• Parties: COMMONWEALTH v. Johnny J. EVANS.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 687

34 N.E.3d 772

COMMONWEALTH

v.Johnny J. EVANS.

No. 14–P–975.

Appeals Court of Massachusetts, Suffolk.

Argued March 16, 2015.

Decided July 31, 2015.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Rebecca A. Jacobstein for the defendant.

Present: KATZMANN, MILKEY, & AGNES, JJ.

Opinion

MILKEY

, J.

During a street encounter that occurred in the Upham's Corner neighborhood of the Dorchester section of Boston, Boston police discovered a bag of “crack” cocaine inside the defendant's mouth. The Commonwealth charged the defendant with possession of that cocaine in violation of G.L. c. 94C, § 34

. After holding an evidentiary hearing, a Boston Municipal Court

judge allowed the defendant's motion to suppress the cocaine. On the Commonwealth's interlocutory appeal of that ruling, we affirm.

Background. When reviewing a decision on a motion to suppress, we accept the judge's findings of fact absent clear error, but make an independent determination whether the judge correctly applied constitutional principles to the facts as found. Commonwealth v. Lyles, 453 Mass. 811, 814, 905 N.E.2d 1106 (2009)

. The following recitation is drawn from the judge's careful findings, none of which the Commonwealth has demonstrated to be clearly erroneous.

At approximately 2:00 a.m. on March 11, 2013, the defendant was walking alone along Humphreys Street toward Humphreys Place. There, he was spotted by Boston police Officers Dodd and Conley who, dressed in plain clothes, were traveling in an unmarked police cruiser. As the judge found, the officers had not “been dispatched to the area for a specific report of a crime or otherwise”; instead they were on routine patrol “in the area they covered.” When they saw the defendant, they did not recognize him or “know him from any prior interactions.” Rather, to them, “[h]e was just a person walking on the street.”

The defendant spotted the unmarked vehicle trailing him, and he turned left onto Humphreys Place when he reached it.¹ At that point, “Officer Dodd, who was driving, turned his [car] onto Humphreys Place and followed [the defendant] until he got up as far as [the defendant w]as walking.” While still in their vehicle, the officers proceeded to ask the defendant where he was going. The defendant answered that he lived on Humphreys Place and was returning home (a statement that the police admitted they had no reason to question). The defendant “looked around” while being questioned, and “Officer Dodd thought that [he] appeared to be nervous.” At one point, the defendant placed his hands in his pockets, and “Officer Dodd directed [him] to take his hands out of his pockets.” The defendant “hesitated” and then complied.

Nevertheless, both officers left their vehicle and “walked right up to him on the sidewalk” to continue their questioning of him. They were carrying service weapons (although their guns were not drawn), and their badges were visible around their necks.

During his questioning of the defendant on the sidewalk, “it appeared to Officer Dodd that [the defendant] had something in his mouth from his manner of speaking.” In response to a direct question as to what he had in his mouth, the defendant answered, “[N]othing,” and he then opened his mouth to demonstrate this. “[A]s soon as [the defendant] opened his mouth,” Officer Dodd used his flashlight to examine the inside of the defendant's mouth, and in this manner he was able to see a bag containing what appeared to be crack cocaine wedged between the defendant's tongue and cheek.²

After the defendant refused to spit out the observed bag “and appeared to be trying to swallow it[,] Officer Dodd took hold of [the defendant's] jaw” and eventually induced the defendant to spit it out. The officers arrested the defendant and searched him incident to that arrest. Finding “nothing further” on the defendant, and apparently having no reason to question the defendant's postarrest statement that “I was just going home to get high,” the officers released him to be summonsed at a later date.

Discussion. The dispute before us is relatively narrow. The defendant appropriately acknowledges that the officers' initial decision to focus on him did not constitute a seizure. See Commonwealth v. Franklin, 456 Mass. 818, 822, 926 N.E.2d 199 (2010)

(following a person, without some other show of authority, is not a seizure). The fact that the police offered no justification for deeming the defendant worthy of investigation does not turn their initial actions into a seizure.³ Similarly, the defendant concedes that once the police observed what appeared to be a bag of crack cocaine in his mouth, they had reasonable suspicion to seize him (indeed, there plainly was probable cause at that juncture). Thus, the issues before us are whether the defendant was “seized” at

some point before the police observed the bag of cocaine in his mouth and, if so, whether they had reasonable suspicion at that time. See ibid. See also Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007)

(courts are to determine first at what point the defendant was seized). The motion judge found that the defendant was seized for purposes of art. 14 of the Massachusetts Declaration of Rights by the time he opened his mouth.⁴ The Commonwealth argues that the defendant was not seized until the point at which Officer Dodd ordered the defendant to spit out the cocaine, after the police had conducted their flashlight examination of the inside of his mouth. Commonwealth v. Thomas, 38 Mass.App.Ct. 928, 928, 646 N.E.2d 428 (1995).

To determine when the defendant was seized, our inquiry is a fact-specific one: whether “if, in view of all the circumstances surrounding the incident,” those circumstances were “sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.” Commonwealth v. Barros, 435 Mass. 171, 173–174, 755 N.E.2d 740 (2001)

, quoting from and citing United States v. Mendenhall, 446 U.S. 544, 554–555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Furthermore, “[t]he test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). See Commonwealth v. Rosado, 84 Mass.App.Ct. 208, 212, 995 N.E.2d 95 (2013) (observing that “analysis of events in the stop and frisk context” requires the facts to be examined as a whole, “not in isolation”).⁵ Whether, and when, a seizure has occurred “will vary, not only with the particular

police conduct at issue, but also with the setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. at 573, 108 S.Ct. 1975

.

We conclude that a reasonable person would not have felt free to terminate the encounter, at the latest, when Officer Dodd asked the defendant what was in his mouth. The encounter took place while the defendant was walking alone in the dark early hours of the morning. See United States v. Washington, 490 F.3d 765, 772 (9th Cir.2007)

(“[A]lthough the encounter took place on a public street, it happened around 11:30 p.m. in lighting that required [the officer] to use a flashlight”). In this late night setting, the defendant was trailed by an unmarked vehicle that then pulled up right alongside him, and he was asked where he was going. The defendant was alone, while there were two officers who were armed and wore their badges. See Commonwealth v. Lyles, 453 Mass. at 815, 905 N.E.2d 1106 (presence of two armed plain clothes officers who were displaying their badges contributed to encounter being sufficiently intimidating).⁶ We agree with the Commonwealth that the initial questioning by Officer Dodd from inside the cruiser did not rise to the level of a seizure. However, what started as a consensual interaction eventually “matured” into a seizure. Id. at 817, 905 N.E.2d 1106. The fact that Officer Dodd subsequently directed the defendant to take his hands out of his pockets did not itself effect a seizure of him.⁷ See Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979 (1991). However, it did mark the officers' escalating exercise of authority and control over him. After the defendant hesitated (though ultimately complied), both officers responded by exiting the cruiser and “walk[ing] right up to him,” eliminating any physical distance between themselves and the defendant. In Commonwealth

v. Barros,

435 Mass. at 175, 755 N.E.2d 740, the Supreme Judicial Court found the fact that an officer exited his cruiser after the defendant's apparent refusal to cooperate to be “highly relevant” in determining whether a police interaction had escalated to the point where a reasonable person would not have felt free to leave.

After the officers got out of their vehicle, Officer Dodd again asked the defendant where he was going, to identify himself, and “what he was doing,” and then asked him what was inside his mouth. In this manner, the questioning became more pointed and accusatory in tenor. See United States v. Savage, 889 F.2d 1113, 1115, 1117 (D.C.Cir.1989)

(encounter escalated into a seizure after questioning became “direct” and “forceful”); United States v. Dapolito, 713 F.3d 141, 153 (1st Cir.2013)

(encounter made more intimidating due to the “intensification” and “accusatory nature” of the questioning). Considering all these circumstances, we conclude that the interaction became sufficiently intimidating such that a reasonable person would feel compelled to respond to the pointed question about what was in his mouth. See Commonwealth v. Lopez, 451 Mass. 608, 610–611, 887 N.E.2d 1065 (2008). In short, by the time the defendant was asked what was inside his mouth, the encounter had transgressed the bounds of mere questioning and ripened into a seizure.⁸

Having concluded that the defendant was seized...