Commonwealth v. Kearse

• Decision Date: 09 April 2020
• Docket Number: No. 18-P-1619,18-P-1619
• Citation: 146 N.E.3d 497,97 Mass.App.Ct. 297
• Parties: COMMONWEALTH v. James KEARSE.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 297

146 N.E.3d 497

COMMONWEALTH

v.James KEARSE.

No. 18-P-1619

Appeals Court of Massachusetts, Suffolk..

Argued November 1, 2019

Decided April 9, 2020

Ian MacLean, Assistant District Attorney, for the Commonwealth.

Dennis M. Toomey for the defendant.

Present: Agnes, Sullivan, & Blake, JJ.

AGNES, J.

After observing the defendant, James Kearse, standing in the vicinity of two other men who engaged in a "quick hand shake," Brigido Leon, an officer in the Boston Police Department's drug control unit (DCU), believed he had observed a hand-to-hand drug transaction. Officer Leon radioed other officers to conduct an investigatory stop of the defendant and his companion. As a result of this stop, the defendant was pat frisked twice, which ultimately lead to the discovery of a loaded revolver.¹ Following an evidentiary hearing, a judge of the Superior Court allowed the defendant's motion to suppress the firearm concluding that the stop of the defendant was not constitutionally permissible. A single justice of the Supreme Judicial Court granted the Commonwealth leave to file an interlocutory appeal from that order and transmitted the matter to the Appeals Court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). Concluding that police did not have reasonable suspicion to stop the defendant in these circumstances, we affirm.

Background. We summarize the facts found by the motion judge.² Officer Leon had extensive experience in drug and firearm related investigations. On the afternoon of March 2, 2016, Officer Leon was conducting surveillance with other DCU officers in the area of Talbot and Wales Streets in the Dorchester section of Boston, which he described as a high crime area with frequent stabbings, shootings, and drug activity.³ While on patrol, Officer Leon observed the defendant with a companion, Domenic Yancy. The judge did not make any findings that the defendant or Yancy were known drug dealers or users, or otherwise known to the police. Officer Leon observed a third unidentified male (third male) "hop a fence," "cut through a yard," and approach the defendant and Yancy on the sidewalk of Wales Street. Yancy and the third male engaged in a "quick hand shake" "as the [d]efendant stood approximately five feet away and looked around." The judge specifically found that "[t]he entire encounter lasted less than two to three minutes after which the [third] male went back over the fence and the [d]efendant and Yancy walked back through Franklin Field Park." The judge also found that no interaction took place between the defendant and the third male "and no additional evidence presented relating to any interaction between [the defendant] and Yancy either before or after the quick handshake."

Believing that he had observed a hand-to-hand drug transaction between Yancy and the third male, Officer Leon radioed other officers to stop Yancy and the defendant. Minutes later, five to six uniformed and plain-clothed officers arrived to stop the defendant and Yancy a short distance away. Unknown to Officer Leon, the responding officers pat frisked the defendant and Yancy prior to Officer Leon's arrival. No weapons or contraband were discovered as a result of these patfrisks. When Officer Leon arrived, both the defendant and Yancy were unrestrained. Officer Leon had a conversation with Yancy during which Yancy told police he had marijuana on him and gave a statement about where he was coming from that was not consistent with what Officer Leon had just observed.

During the conversation with Yancy, the defendant was standing twenty to twenty-five feet away. At this time, Officer Leon observed the defendant move his body in such a way that he believed, based on his extensive training and experience, that the defendant might be concealing a gun. His observations included that the pocket of the defendant's "coat was sagging as if it contained something heavy," that the defendant would "side-step" or reposition himself when an officer was near him, and that the defendant was "checking himself" by patting himself in a manner consistent with a person carrying a firearm without a holster. After making these observations, Officer Leon proceeded to pat frisk the defendant over the defendant's black puffy coat. Because he was unable to accomplish a patfrisk of the defendant due to his bulky layers, Officer Leon unzipped the defendant's coat and pat frisked over the defendant's sweatshirt. At this time, Officer Leon "felt a hard object that he immediately knew was the butt of a gun. [Officer Leon] lifted up the defendant's sweatshirt and saw a revolver."

Discussion. 1. The stop. "In reviewing a ruling on a motion to suppress, we accept the judge's findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law."

Commonwealth v. Montoya, 464 Mass. 566, 576, 984 N.E.2d 793 (2013). An investigatory stop is permitted only where police have "reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime." Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion "must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch.’ " DePeiza, supra, quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). "Reasonable suspicion is measured by an objective standard, ... and the 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). See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 790-791, 95 N.E.3d 278 (2018). The test is not whether the officer is acting in good faith. Commonwealth v. Grandison, 433 Mass. 135, 139, 741 N.E.2d 25 (2001). Rather, "[t]he test is an objective one." Commonwealth v. Bacon, 381 Mass. 642, 643, 411 N.E.2d 772 (1980), quoting Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). In particular, a police officer's suspicion that a crime has occurred will not be regarded as reasonable under art. 14 of the Massachusetts Declaration of Rights, unless "[t]hat suspicion [is] grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch" (quotation omitted). Warren, supra at 534, 58 N.E.3d 333. "We have no hard and fast rule governing the required level of particularity [of a description]; our constitutional analysis ultimately is practical, balancing the risk that an innocent person ... will be needlessly stopped with the risk that a guilty person will be allowed to escape." Commonwealth v. Lopes, 455 Mass. 147, 158, 914 N.E.2d 78 (2009). Furthermore, "[d]uring a stop for which there is constitutional justification, ... a patfrisk is permissible only where an officer has reasonable suspicion that the suspect is armed and dangerous." Commonwealth v. Torres-Pagan, 484 Mass. 34, 36, 138 N.E.3d 1012 (2020).

Based on these principles and an examination of similar cases, we conclude that Officer Leon's observations failed to establish reasonable suspicion that the defendant was engaged in criminal activity when the order to stop him was given by Officer Leon. The Commonwealth does not dispute that the defendant was stopped, in the constitutional sense, when the five to six officers stopped and pat frisked him in response to Officer Leon's radio broadcast. As we must determine whether reasonable suspicion existed based on the information developed by police by that time, see Commonwealth v. Matta, 483 Mass. 357, 360, 133 N.E.3d 258 (2019), the timing of the stop constrains us to exclude from consideration the crucial facts that Officer Leon later discovered Yancy was lying about his whereabouts before the stop and Officer Leon's later observation that the defendant appeared to be carrying a gun.

In addition to presence in a high crime area, the only factors identified by Officer Leon that are relevant to whether the reasonable suspicion standard was met are the following: (1) during the afternoon hours an unidentified third male hopped over a fence and cut through a yard; (2) Yancy and that male engaged in a "quick hand shake" that Officer Leon believed to be a drug transaction while the defendant stood nearby, looked around, but did not interact with the third male or with Yancy; and (3) after several minutes, the third male departed back over the fence and the defendant and Yancy walked back through Franklin Field Park.

A quick hand shake in a high crime area between individuals unknown to the police, even when viewed by an experienced investigator, standing alone, does not provide more than a hunch that a drug transaction occurred, and certainly no more than a hunch that a person standing near the individuals who engaged in the hand shake was a participant in criminal activity. See Meneus, 476 Mass. at 238, 66 N.E.3d 1019 (simply because activity occurred in high crime area does not for that reason mean that activity was suggestive of criminal activity; inference that criminal activity is underway must meet objective standard of reasonableness). As we observed in Commonwealth v. Ellis, 12 Mass. App. Ct. 476, 477, 426 N.E.2d 172 (1981), "[t]here was no evidence to color the transaction." In Ellis, we concluded that evidence that a police officer observed several people conversing through the window of the vehicle while it was in a parking lot, one of the individuals passing some paper money into the vehicle, and one of the occupants of the vehicle giving something to this individual, was not sufficient to constitute reasonable suspicion that a drug transaction had occurred. Id. Similarly, in Commonwealth v. Clark, 65...