Commonwealth v. Narcisse

• Citation: 457 Mass. 1,927 N.E.2d 439
• Decision Date: 27 May 2010
• Docket Number: SJC-10421.
• Parties: COMMONWEALTHv.Mark NARCISSE.
• Court: United States State Supreme Judicial Court of Massachusetts

457 Mass. 1

927 N.E.2d 439

COMMONWEALTHv.Mark NARCISSE.

SJC-10421.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 5, 2009.

Decided May 27, 2010.

Christopher L. MacLachlan, Boston, for the defendant.

Janis DiLoreto Noble, Assistant District Attorney, for the Commonwealth.

John Reinstein, Charles Ogletree, Robert J. Smith, Harry T. Daniels, & Kevin S. Prussia, Boston, for American Civil Liberties Union & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

The defendant, Mark Narcisse, was charged with carrying a firearm without a license, G.L. c. 269, § 10 ( a ), and possession of ammunition without a firearms identification card, G.L. c. 269, § 10 ( h ), after he was pat frisked by police officers during a consensual encounter referred to in police parlance as a “field interrogation observation.” ¹ The defendant moved to suppress the firearm, the ammunition, and the statements he made to the police, claiming that the patfrisk constituted an unlawful stop and seizure by the police under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion was denied after a hearing, and following a jury-waived trial, the defendant was convicted of both charges. The Appeals Court affirmed his convictions Commonwealth v. Narcisse, 73 Mass.App.Ct. 406, 407, 898 N.E.2d 507 (2008), and we granted his application for further appellate review. We now reverse.

1. Background. We summarize the motion judge's findings of fact, with supplementation from uncontested testimony, noting that all his findings, save one,² are supported by the evidence he found credible. Consequently, we accept them. See Commonwealth v. Sparks, 433 Mass. 654, 656, 746 N.E.2d 133 (2001).

a The stop and frisk. On January 30, 2005, Officer Stephen Romano, Officer David Yee, and Sergeant Stephen McLaughlin were directed to patrol the Geneva Avenue area of the Dorchester section of Boston. The area, which Officer Romano had patrolled for nine years, was considered a “hot spot,” with nightly gunfire and drug activity occurring. Indeed, at around 7 p.m. that evening, there had been shots fired into an apartment on East Street, about one-half mile from Geneva Avenue. The officers were also aware that one of the “impact players” who lived in the area had been killed in Randolph the previous night, and that the Boston police department was concerned about the possibility of retaliatory attacks in the Geneva Avenue area. However, the police had no information about the identity of the individuals involved in either the shooting on East Street or the murder in Randolph.

At 10 p.m., the officers drove down Charles Street in an unmarked cruiser. They observed two black men walking on Charles Street turn left onto Geneva Avenue. The officers pulled alongside and, not recognizing the men, decided to conduct a field interrogation observation in order to discover what the men were doing. While still in their cruiser, the officers asked the men who they were and whether they lived in the area. The men provided their names to the officers, and the defendant told the officers he was from Randolph. He also told the officers that he was coming from a store. Officer Romano knew that there were stores nearby, although not on Charles Street, but for some reason he found the defendant's response implausible.³

Officer Romano asked the men if they could step over to the sidewalk for further discussion, and the men complied. The officers got out of their vehicle and informed the men that there had been “activity in the area.” After some conversation with the two men (the content of which was not specified), Officer Romano informed them that the officers were going to pat frisk them. In doing so, the officers recovered a loaded .22 caliber firearm from the front pocket of the defendant's jacket. Sergeant McLaughlin ascertained that the defendant did not have a license authorizing him to carry the firearm, and arrested him. After the defendant received the Miranda warnings, he stated that he had found the weapon under a nearby bridge.

b Motion to suppress. The defendant moved to suppress the firearm, ammunition, and his subsequent statements. After finding that the defendant was “seized” when the officers announced their intention to pat frisk him, and noting that the circumstances presented a “very close case,” the motion judge set out the factors weighing for and against suppression. In the defendant's favor, the judge acknowledged that (1) the defendant made no furtive or sudden movements during the encounter; (2) the police had no reason to suspect that the defendant was linked to the earlier shooting on East Street; (3) the police had no reason to believe that either the defendant or his companion was involved in criminal activity; and (4) the defendant did not flee the police but, rather, cooperated fully. Cutting against suppression, the judge found that the actions of the police officers were justified because (1) the encounter occurred in a high crime area where several firearms incidents recently had taken place; (2) the police officers had been told to patrol the area to prevent potential retaliation from the Randolph homicide the night before; (3) the defendant said he was from Randolph; (4) the police officers did not recognize the defendant, despite having patrolled the area for many years; (5) the defendant gave an implausible answer about having come from a store; and (6) there had been a shooting incident nearby several hours earlier. Based on these factors, the judge concluded that the police officers were justified in seizing the defendant.⁴ He also determined that the police officers were justified in pat frisking the defendant because, based on the same factors, the police officers had a reasonable basis for believing that the defendant “pose[d] a danger” to them. Therefore, the judge denied the defendant's motion to suppress.

c. The Appeals Court's decision. The Appeals Court affirmed the denial of the defendant's motion to suppress, but did so on slightly different grounds. Unlike the motion judge, the Appeals Court recognized that in the factual circumstances of this case, the seizure of the defendant and the patfrisk could not be separated analytically. Commonwealth v. Narcisse, 73 Mass.App.Ct. 406, 408-409, 898 N.E.2d 507 (2008). Rather, what occurred was the sort of simultaneous seizure and search described in Commonwealth v. Fraser, 410 Mass. 541, 544 n. 4, 573 N.E.2d 979 (1991) ( Fraser ), where the pat-down was not preceded by a forcible stop. Thus, the Appeals Court shifted its focus from whether it was permissible to stop (or seize) the defendant to whether the police officers' concerns for their safety justified the escalation of the consensual encounter with the defendant to include a patfrisk. Commonwealth v. Narcisse, supra at 408-410, 898 N.E.2d 507. Reviewing the same factors as the motion judge, the Appeals Court held that “each element may not have been enough to warrant police intervention, but when considered together, the general environmental factors and the defendant's responses to police questioning gave rise to the officer's reasonable fear that the defendant might have a weapon.” Id. at 410, 898 N.E.2d 507.

2. Discussion. Absent clear error, we accept and adopt the findings of the motion judge, but we “independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007) ( DePeiza ), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004). Here, the Commonwealth has not carried its burden to demonstrate that the police officers' stop and frisk of the defendant were justified by a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous. DePeiza, supra at 374, 868 N.E.2d 90. Accordingly, we reverse.

We begin by determining when the defendant was seized. See DePeiza, supra at 369, 868 N.E.2d 90. “Not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification.” Commonwealth v. Gomes, 453 Mass. 506, 510, 903 N.E.2d 567 (2009). “The particular character of such an encounter will determine” what level of justification, if any, is required. Commonwealth v. Lyles, 453 Mass. 811, 814, 905 N.E.2d 1106 (2009). Thus, police officers may approach individuals on the street to ask them about their business without implicating the balance between State power and individual freedom. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (“law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place”); Commonwealth v. Lyles, supra at 815, 905 N.E.2d 1106, and cases cited. Such interactions, field interrogation observations, see note 1, supra, properly are deemed consensual encounters because the individual approached remains free to terminate the conversation at will. See id. at 814-815, 905 N.E.2d 1106. That is, they are constitutionally insignificant, and a police officer may initiate such an encounter without any information indicating that the individual has been or is presently engaged in criminal activity.

With this in mind, and contrary to the defendant's contention, the officers in this case did not exceed the bounds of a consensual field interrogation observation when they pulled alongside the defendant and got out of their vehicle. The evidence reveals that the officers engaged in a brief, albeit unspecified, conversation with the defendant and his companion after they got out of their cruiser,...