Commonwealth v. Harris

• Decision Date: 19 March 2018
• Docket Number: No. 17–P–123,17–P–123
• Citation: 96 N.E.3d 729,93 Mass.App.Ct. 56
• Parties: COMMONWEALTH v. Jesse HARRIS.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 56

96 N.E.3d 729

COMMONWEALTH

v.Jesse HARRIS.

No. 17–P–123

Appeals Court of Massachusetts, Suffolk..

Argued December 18, 2017

Decided March 19, 2018

Rosemary Daly, Cambridge, for the defendant.

Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth.

Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ.

ENGLANDER, J.

This case raises an issue as to the reasonableness of police conduct when the police engaged with, and ultimately stopped and seized, persons walking in a public area. The defendant appeals from his convictions of illegal possession of a firearm and carrying a loaded firearm without a license, claiming that (1) the firearm was seized in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and (2) the trial judge failed to conduct the necessary waiver colloquy before convicting the defendant based upon stipulated facts. Because, as the Commonwealth acknowledges, the required colloquy did not occur, the judgments must be vacated and the findings set aside.

That leaves the search and seizure issue, which has been fully briefed and argued and which bears on any future proceedings. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289, 913 N.E.2d 900 (2009). The seizure of the gun resulted from what began as a "casual" encounter between the defendant, his two companions, and the Northeastern University (university) police, outdoors on a September afternoon in the middle of the university's campus. The defendant contends that he and his companions were stopped or seized, for constitutional purposes, without the required reasonable suspicion, and that the gun accordingly must be suppressed. A Superior Court judge denied the defendant's pretrial motion to suppress the gun, concluding that the initial conversations with police were consensual and that no stop occurred until after the police officers had observed a knife on the defendant's person, at which point the seizure became entirely justified. We conclude that although the initial actions of the police were reasonable, the police unreasonably extended the encounter, and then seized the defendant before the knife appeared and without the requisite reasonable suspicion.

1. Background. a. Facts.¹ This case arises, as our cases often do, out of ordinary police work that developed into a seizure and, ultimately, an arrest. On September 23, 2015, Officers John Sweeney, Jonathan Sprague, and Andrew Good of the university police were working a day shift. Officers Sweeney and Sprague were on mountain bicycles, while Officer Good was driving a marked police car. These three officers were wearing university police uniforms.²

At 3:20 P.M. , all three officers heard a radio broadcast stating, "two black males in their early 20's, one wearing a black hoody, and the other wearing a gray hoody, possibly with a third person, casing the bike racks by Snell [L]ibrary" at the university. This information was initially provided by a security officer employed by the university, who was stationed by the bicycle racks because the area was a high-crime area for bicycle theft.

Approximately twenty minutes after the broadcast, Officer Good saw two men fitting the broadcast description, along with a female, pass his car from the direction of the library. The three people in the group were the defendant, the other male, Dakari Ferguson–Boone, and the female, Dajunnay Wade–Joseph.³ The defendant and Ferguson–Boone were seated on bicycles, although Wade–Joseph had no bicycle and the three were walking together. Officer Good got out of his car and called out to the group, asking if he could speak to them, but they continued to move away.

Officers Sprague and Sweeney then approached the group. Officer Sweeney said hello and asked if he could speak to the three. Although the exact details and timing of the ensuing conversations are not spelled out in the judge's findings, initially the officers stated to the group that there had been a number of bicycle thefts in the area, and asked where the group was coming from. The companions responded that they had eaten at Popeye's, a restaurant in the campus food court; at least one of the group was carrying a container from that restaurant.

Soon thereafter a third officer arrived, Officer Jim Cooney, and three separate conversations ensued, in close proximity. Officer Sprague spoke with the defendant, Officer Sweeney spoke with Ferguson–Boone, and Officer Cooney with Wade–Joseph. The motion judge found that "[t]he officers' tone of voice was casual, conversational, and nonthreatening." The officers asked the two men to get off the bicycles and they complied, placing the bicycles on the ground. The officers asked whether the men had stolen the bicycles, and they responded that they had not.

Officer Sprague asked the defendant if he had previously had issues with the police, and he responded by raising his pant leg, revealing a GPS-monitored ankle bracelet. Officer Sprague then asked the defendant for identification, and the other two officers followed suit, asking for identification from Ferguson–Boone and Wade–Joseph. The defendant did not produce identification, but did orally provide his name, date of birth and address. Officer Sprague then stepped a short distance away from the group to call in the defendant's information to police dispatch, in order to conduct a criminal history and warrant check. Ferguson–Boone provided some form of identification card, which Officer Sweeney took and held, waiting for Officer Sprague to complete his conversation with dispatch. Wade–Joseph produced her university student identification card. While these conversations were occurring, Officer Good and another officer came on the scene but "stood a distance away from the ongoing conservations."

As Officer Sprague was calling in the defendant's information, Officer Sweeney observed the defendant make a movement to his left side, causing his sweatshirt to ride up and expose a knife clipped inside of his waistband. Officer Sweeney, "concerned for his and other officers' safety[,] grabbed the knife handle to remove it."

Officer Cooney then told the defendant to place his hands on his head because he intended to conduct a patfrisk. The defendant began to comply, but then fled, chased by Officer Good. While fleeing, the defendant dropped the firearm that is the subject of the motion to suppress.

The motion judge did not make a finding as to how long the encounter lasted from the time the officers first engaged the group until the defendant fled. The witnesses gave a range of estimates, but the record reflects that the encounter was approximately ten to fifteen minutes.

The defendant was ultimately located and arrested, and charged with illegal possession of a firearm, in violation of G. L. c. 269, § 10(a ) ; illegal possession of ammunition, in violation of G. L. c. 269, § 10(h )(1) ; and carrying a loaded firearm without a license (FID card), in violation of G. L. c. 269, § 10(n ).

b. Pretrial proceedings. The defendant filed a motion to suppress all items seized. After an evidentiary hearing, the motion judge denied the defendant's motion, finding that "[t]he initial encounter was not a stop or seizure" prior to the time the officer saw and seized the knife. The judge stated that asking the defendant for biographical information did not effect a seizure, and continued, "The fact that there were three officers speaking to the defendant and his friends does not make the consensual encounter a seizure. Each officer spoke separately to [the defendant] and his two friends. [Officers] Good and Cooney did not engage in conversation and stood about 100 yards from the interaction."

Finally, the judge concluded that the seizure of the knife was justified because it was a dangerous weapon on school grounds. See G. L. c. 269, § 10(j ). c. Trial. After a bench trial upon stipulated facts, the trial judge found the defendant guilty of all three charges and allowed the Commonwealth's dismissal of the charge of possession of ammunition without an FID card. This appeal followed.

2. Discussion. a. Motion to suppress. We deal first with the motion to suppress. The defendant's principal contention is that he and his two companions were stopped or seized for constitutional purposes well before Officer Sweeney saw the knife on the defendant's person, that this initial stop or seizure was not justified by reasonable suspicion and was thus unlawful, and that the gun, and the defendant's arrest, are the fruits of that unlawful stop or seizure. The Commonwealth counters that the initial encounter was merely a field interrogation observation (FIO)—an informal and voluntary conversation with the police that the defendant and his friends were free to exit. The motion judge agreed with the Commonwealth, concluding that no stop occurred until the officer saw and seized the knife, at which point a seizure was fully justified.

i. Stop and seizure. The first issue is when the stop or seizure occurred for constitutional purposes under the above facts. The legal standard is well settled: whether, "in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." Commonwealth v. Meneus, 476 Mass. 231, 234–235, 66 N.E.3d 1019 (2017), quoting from Commonwealth v. Barros, 435 Mass. 171, 173–174, 755 N.E.2d 740 (2001). In applying this standard, "we accept the [motion] judge's subsidiary findings of fact absent clear error." Commonwealth v. Contos, 435 Mass. 19, 32, 754 N.E.2d 647 (2001), quoting from Commonwealth v. Eckert, 431 Mass. 591, 592, 728 N.E.2d 312 (2000). Accord Commonwealth v. Lyles, 453 Mass. 811, 814, 905 N.E.2d 1106 (2009). "However, we review independently the motion judge's application of constitutional principles to the facts found." Commonwealth v. Franklin, 456...