Commonwealth v. Kearse
| Decision Date | 20 May 2021 |
| Docket Number | 20-P-932,20-P-933 |
| Citation | 168 N.E.3d 388 (Table),99 Mass.App.Ct. 1125 |
| Parties | COMMONWEALTH v. James KEARSE (and two companion cases ). |
| Court | Appeals Court of Massachusetts |
Tried together in the Superior Court, the defendants, James Kearse and Tedros Hishe, were convicted of various offenses arising out of their joint possession of a firearm seized from the center console of a vehicle that Hishe was driving with Kearse as his sole passenger.3 Their primary claims on appeal concern the denial of their motions to suppress and the sufficiency of the evidence. We affirm.
1. Motions to suppress. The defendants assert that because the Commonwealth failed to show that the police had justification to order them out of the vehicle, to pat frisk them, or to search the interior of the vehicle, the judge erred in denying their motions to suppress. Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
a. Findings of fact. We recite the facts as found by the motion judge, "supplemented by additional undisputed facts where they do not detract from the judge's ultimate findings." Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 541 n.3 (2020), quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
At 7 P.M. on an evening in January 2018, Officers Timothy Callahan and Jonathan O'Brien were patrolling the Chinatown neighborhood of Boston after two recent firearms incidents in the area.4 The officers were in plain clothes in an unmarked police cruiser. Noticing that the operator and passenger of a passing vehicle, later identified as Hishe and Kearse, respectively, were not wearing seatbelts, the officers made a Uturn and began following them. The defendants made an abrupt turn into a parking lot, drove through to an adjacent street, and then entered the parking lot of an apartment complex, where they parked behind a snowbank, extinguished the headlights, and waited for about five minutes. The judge credited the officers’ characterization of the car's travel as "evasive" and their belief that the defendants were "hiding." The defendants then left the car and walked through the parking lot out of the officers’ view, returning five minutes later. Hishe then pulled out of the parking lot onto the street and ran through a red light at the first intersection.
After observing the traffic violation, the officers sounded their siren and stopped the vehicle. O'Brien approached the driver's side, while Callahan approached the passenger's side. Callahan recognized Kearse, who was sitting in the front passenger's seat. He knew that Kearse had multiple firearms charges on his record, believed that he was affiliated with a gang, and was aware that one of the gang's members had recently been shot. Kearse's seat was almost fully reclined, and he was manipulating his cell phone with his right hand while keeping his left elbow "awkwardly" on top of the center console. The officers believed, and the judge found, that this was "odd and concerning" behavior.
Meanwhile, O'Brien asked Hishe for his license and registration. Hishe said he had lost his license; when retrieving the registration, "Hishe's hands shook, he fumbled, and he appeared very nervous." O'Brien returned to the cruiser to verify Hishe's license status. O'Brien confirmed that Hishe had valid license, but he also learned from the online criminal justice database that Hishe had a firearms charge on his record. The officers then asked the defendants where they were coming from; they responded that they had been visiting a cousin, whose first name they could not provide. The judge found that the officers "reasonably disbelieved" the defendants’ story.
The officers ordered the defendants out of the car. When Kearse exited, the officers noticed that the center console on which he had been leaning was "slightly ajar." The officers pat frisked the defendants, finding nothing. O'Brien then searched of inside the car, under the front seats and inside the center console. Underneath a tray inside the console O'Brien discovered a firearm.
b. Validity of exit order, patfrisks, and search of vehicle's interior. "[A]n exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2)police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). The officers’ belief "must be grounded in ‘specific, articulable facts and reasonable inferences drawn therefrom.’ " Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020), quoting Commonwealth v. Edwards, 476 Mass. 341, 345 (2017). A patfrisk "requires more; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous." Torres-Pagan, supra at 38-39. In addition, officers may conduct a limited search of the interior of a vehicle, confined to areas from which the occupants of the vehicle might readily gain possession of a weapon, if the officers would be warranted in believing that their safety would be endangered when the occupants returned to the vehicle at the conclusion of the stop and frisk. See Commonwealth v. Douglas, 472 Mass. 439, 445-446 (2015), and cases cited therein. See also Silvelo, supra at 16 (); Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 744 (2018) ().
We agree with the motion judge's conclusion that the facts, "considered in totality," Torres-Pagan, 484 Mass. at 41, quoting Commonwealth v. Vazquez, 74 Mass. App. Ct. 920, 923 (2009), provided a reasonable basis for the officers not only to be concerned for their safety, but also to believe that the defendants were armed and dangerous, justifying the exit order, the patfrisks, and the search of the console. The officers were patrolling a neighborhood where recent incidents involving firearms had occurred. See Torres-Pagan, supra (). Upon seeing the officers, the defendants took evasive action. They parked behind a snowbank, waited in the vehicle with the headlights off, walked away, returned to the vehicle, and then again tried to evade the officers by running a red light. See Commonwealth v. Hernandez, 473 Mass. 379, 386 (2015) (). After the stop,5 Hishe was unusually nervous, while Kearse assumed an unnatural, awkward posture, suggesting he was concealing something in the center console. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (). In addition, the defendants gave an explanation for their prior conduct, that the officers reasonably disbelieved. Cf. Commonwealth v. Watson, 430 Mass. 725, 734 (2000), quoting Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) (). Both men had firearms charges on their records, and Kearse was associated with a gang that had recently been involved in a shooting. See Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009) (). Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010) ().
Altogether, the officers could reasonably conclude that the defendants were armed and dangerous, with at least one gun within reach -- under Kearse's elbow in the center console. The officers’ reasonable suspicions, based on specific and articulable facts and not just a mere hunch, see Commonwealth v. Silva, 366 Mass. 402, 406 (1974), justified their actions of ordering the defendants out of the car, pat frisking them for weapons on their persons, and searching the center console for weapons. See Galarza, 93 Mass. App. Ct. at 744 ().
To be sure, Hishe's failure to produce a driver's license, his nervousness, and both defendants’ evasive responses to the officers’ questions, standing alone, did not give rise to reasonable suspicion. See Commonwealth v. Cordero, 477 Mass. 237, 243-244 (2017), and cases cited; Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125-126 (2005). Likewise, the officers’ familiarity with Kearse's gang affiliation alone would be insufficient to support a reasonable belief that the defendants posed a "threat to the safety of an officer." Elysee, 77 Mass. App. Ct. at 841. Nevertheless, the fact "[t]hat there may be an innocent explanation for the defendant[s’] actions ‘does not remove [those actions] from consideration in the reasonable suspicion analysis.’ " Commonwealth v. Gomes, 453 Mass. at 511, quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007). This is not a case like Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 472 (1996), where "[a]dding up eight...
To continue reading
Request your trial