Commonwealth v. Jones, 18-P-1195

• Citation: 95 Mass.App.Ct. 641,130 N.E.3d 800
• Decision Date: 22 July 2019
• Docket Number: No. 18-P-1195,18-P-1195
• Parties: COMMONWEALTH v. Maurice JONES.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 641

130 N.E.3d 800

COMMONWEALTH

v.Maurice JONES.

No. 18-P-1195

Appeals Court of Massachusetts, Suffolk..

Argued January 10, 2019

Decided July 22, 2019

Ian MacLean, Assistant District Attorney (Julie S. Higgins, Assistant District Attorney, also present) for the Commonwealth.

James L. Sultan (Catherine J. Hinton also present), Boston, for the defendant.

Present: Wolohojian, Neyman, & Singh, JJ.

WOLOHOJIAN, J.

This interlocutory appeal stems from motions to suppress¹ that the defendant filed in anticipation of his third trial on indictments charging murder in the first degree and other charges relating to the April 17, 2012 fatal shooting of Dinoriss Alston and nonfatal shooting of Ashley Platt.² After conducting an extensive evidentiary hearing,³ a Superior Court judge allowed⁴ the defendant's motions and suppressed statements that the defendant and his mother had made during three encounters with police on the day of the shooting. The first encounter occurred when police stopped the defendant nearly one-half hour after the shooting to ask him if he knew anything about it. At the beginning of this encounter, the police pat frisked the defendant without reasonable suspicion. The defendant then made certain exculpatory statements, which we conclude the motion judge properly suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The second encounter occurred minutes later at the defendant's home, where police went to speak with his mother to see if she would confirm what the defendant had just told them. Unlike the motion judge, we conclude that the mother's statements were sufficiently attenuated from the initial illegality that they should not be suppressed as fruit of the poisonous tree. The third encounter occurred later the same day when police, having additional information tying the defendant to the description of the shooter, located him to ask further questions. These statements did not fall within the "cat-out-of-the-bag" doctrine, see Commonwealth v. Mahnke, 368 Mass. 662, 686, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976), as the motion judge concluded, nor was suppression required under the other theories raised by the defendant.

Background.⁵ At around 4 P.M. on April 17, 2012, Dinorris Alston and his girlfriend, Ashley Platt, were sitting in a car parked near a park located between Dunreath and Copeland Streets in the Roxbury section of Boston. Shots were fired into the car, killing Alston and wounding Platt, who managed nonetheless to drive to a nearby gas station for help. As she drove from the scene of the shooting, Platt saw a man walking away.

When an officer arrived at the gas station, Platt told him that the shooter was a black male wearing a white T-shirt and khaki pants. That description was broadcast over police radio at 4:08 P.M. Hearing that description and a report that shots had been fired, Officer Brian Johnson decided to look for the defendant in order to speak with him. He knew that the defendant frequented the park and the area where the shooting had occurred, and he had many times before conducted a field interrogation and observation⁶ of the defendant in the area of Dunreath and Copeland streets, including the week before. But Johnson had never seen the defendant with a gun and did not know him to have any prior firearm convictions. Moreover, Johnson had never had any problems with the defendant and had no information connecting the defendant to the shooting. At the time he went looking for the defendant, Johnson was in an unmarked car, and he was wearing plainclothes and his badge.

Johnson located the defendant around 4:25 P.M. about one mile away from Dunreath Street. The defendant, a young black man, was walking by himself and wearing a white T-shirt with a red and grey graphic design of a winged unicorn on the front bearing the word "Temptation." He wore khaki cargo-style shorts, a black baseball cap with a small red pony logo on the front, and black sneakers.

Johnson pulled over, got out of his car, and asked the defendant, "What's up?" in a conversational, nonconfrontational manner. The defendant answered in a calm and natural tone with "[h]ey," or a similar expression. At this point, Johnson patted down the defendant's waist and pockets but found nothing. Johnson then asked the defendant casually what he was doing and where he was going. The defendant replied that he had been at his house earlier and that he was going to meet his mother at Walgreens to add minutes to his cell phone. Officer Michael Fanning joined Johnson during this conversation, but neither displayed his firearm or attempted to restrain or handcuff the defendant. The conversation lasted about five minutes in total, and after a brief consultation with his superior officer by telephone, Johnson ended the encounter.

The two officers then immediately went around the corner to the defendant's home, intending to speak to his mother to see if she would verify what the defendant had told them.⁷ The officers did not tell her that they had just spoken to the defendant. She denied that she was going to accompany the defendant to Walgreens and said she had not spoken with her son since that morning. She confirmed that the defendant frequented the area where the shooting had taken place.

Meanwhile, Platt gave police a more detailed description of the shooter, which was broadcast: a young black male with khaki shorts, black "Chuck Taylor" sneakers,⁸ a white shirt with some red in it, and a black and red baseball cap.⁹ Johnson and Fanning were ordered to look for the defendant again given this new description.

They found him at around 5:30 P.M. , wearing the same clothing as before and walking with another man around the corner from his home. In response to the officers' request, the defendant agreed to wait to speak with detectives, who arrived shortly thereafter and engaged the defendant in a cordial conversation conducted at a normal speaking volume. The officers did not pat frisk the defendant (who seemed a little nervous, jittery, and excitable), restrain him, display weapons, or make any show of authority. During this conversation, the defendant said that he had not been in the area of the shooting but instead had been home for the day. He agreed to have his photograph taken and to submit to a gunshot residue test, but he declined to be transported to the hospital for Platt to view. The defendant ultimately ended the encounter, which lasted between eight and ten minutes.

Discussion. The Commonwealth argues that the motion judge erred in allowing the defendant's motions to suppress, because (1) reasonable suspicion justified the initial patfrisk of the defendant,¹⁰ (2) even if the frisk was unlawful, the mother's later statements were not fruit of the poisonous tree, and (3) the motion judge improperly applied the "cat-out-of-the-bag" doctrine to the defendant's statements during the third encounter. In reviewing the judge's ruling, we accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), but make an "independent determination on the correctness of the judge's ‘application of constitutional principles to the facts as found,’ " Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986), quoting Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

1. First encounter. "[P]olice officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous." Commonwealth v. Narcisse, 457 Mass. 1, 9, 927 N.E.2d 439 (2010). "That suspicion must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ " Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007), quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). "[T]he totality of the facts on which the seizure is based must establish ‘an individualized suspicion that the person seized by the police is the perpetrator’ of the crime under investigation." Commonwealth v. Meneus, 476 Mass. 231, 235, 66 N.E.3d 1019 (2017), quoting Commonwealth v. Warren, 475 Mass. 530, 534, 58 N.E.3d 333 (2016).

For the reasons that we set out below, we are not persuaded by the Commonwealth's argument that the following factors provided reasonable suspicion to pat frisk the defendant: (i) the "match" between the defendant and the initial broadcast description of the shooter, (ii) the defendant's geographic and temporal proximity to the location of the shooting, (iii) the fact that the defendant frequented the area where the shooting occurred, and (iv) the nature of the offense being investigated. We examine each of these factors in turn.

First, when the defendant was pat frisked, the description of the shooter was nonspecific, consisting only of a black male wearing a white T-shirt and khaki pants. A description of a perpetrator sought by police "need not be so particularized as to fit only a single person, but it cannot be so general that it would include a large number of people in the area where the stop occurs." Commonwealth v. Depina, 456 Mass. 238, 245-246, 922 N.E.2d 778 (2010). The description here did not meaningfully narrow the range of possible suspects and, thus, did not substantially contribute to the reasonable suspicion analysis. See Warren, 475 Mass. at 534-537, 58 N.E.3d 333 (no reasonable suspicion where defendant and another individual "matched" description of two black males wearing dark clothing); Commonwealth v. Cheek, 413 Mass. 492, 496, 597 N.E.2d 1029 (1992) (description of suspect as "black male with a...