Commonwealth v. Nickerson

Citation948 N.E.2d 906,79 Mass.App.Ct. 642
Decision Date08 June 2011
Docket NumberNo. 10–P–486.,10–P–486.
PartiesCOMMONWEALTHv.Robert NICKERSON.
CourtAppeals Court of Massachusetts

OPINION TEXT STARTS HERE

John M. Goggins, Worcester, for the defendant.Kevin J. Powers, Assistant District Attorney, for the Commonwealth.Present: McHUGH, BROWN, & GRAINGER, JJ.GRAINGER, J.

Following a jury trial in Superior Court the defendant was convicted of one count of receiving stolen property over $250, G.L. c. 266, § 60.1 On appeal, he raises numerous claims of error, including the denial of his pretrial motion to suppress.2 Because we conclude that the investigating officers' initial search and ultimate detention of the defendant were not supported by reasonable suspicion, but that the admission of the resulting fruits at trial was harmless beyond a reasonable doubt, we affirm the judgment of conviction.

Background. We summarize the relevant facts from the motion judge's findings, supplemented as necessary with uncontested facts from the motion hearings. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007). Shortly after midnight on July 26, 2006, Officer Paul Holland of the Quincy police department responded to a report of a robbery at 75 Roberts Street. The victim, Mary O'Toole, informed Officer Holland that her purse, containing a cellular telephone (cell phone) and other items of value, had been stolen. Officer Holland relayed this information to other officers, noting that the perpetrator appeared to have entered the home through a rear window using a lawn chair.

Among those receiving the dispatch was Sergeant John P. Kelly, who immediately recalled several recent burglaries in the area perpetrated with a similar modus operandi. At approximately 1:25 a.m., Sergeant Kelly stationed himself approximately one-quarter mile from the scene of the crime 3 and, within ten minutes, observed the defendant emerge from a side yard carrying a flashlight and a partially consumed twelve-pack of beer.4 Upon spotting Sergeant Kelly, who was in full uniform, the defendant began walking quickly in the opposite direction while simultaneously attempting to conceal the flashlight.

Sergeant Kelly approached the defendant and told him to stop. The sergeant observed the defendant to be nervous, with glassy, bloodshot eyes, and he detected an odor of alcohol on the defendant's breath. The defendant informed Sergeant Kelly that he was “just walking and drinking,” at which point Sergeant Kelly performed a patfrisk for his safety. The frisk revealed a Verizon LG digital cell phone, which Sergeant Kelly removed, a large amount of change, and a partially consumed pint of vodka.

Sergeant Kelly resumed his questioning of the defendant, inquiring where he resided. The defendant responded that he lived with his girlfriend at 4 Bridge Street, a location several miles away.5 Upon request the defendant identified himself as Robert Nickerson, a name Sergeant Kelly immediately recognized as belonging to an individual implicated in and convicted of several past burglaries in Quincy. Sergeant Kelly thereupon radioed for backup and provided the defendant with Miranda warnings, though he did not formally arrest the defendant.

Within minutes, Officer Dennis Keenan arrived at the scene. The defendant indicated that he needed to call his girlfriend, at which point Sergeant Kelly inquired about ownership of the confiscated cell phone. Though initially professing his ignorance, when asked a second time the defendant responded that the cell phone belonged to a close friend—though he was unable to provide a name. When Sergeant Kelly asked if the defendant had anything else on his person, he responded, [N]o, go ahead, search me.” A second search performed by Officer Keenan uncovered a woman's gold “X & O” bracelet and gold chain. The defendant maintained that the jewelry belonged to his girlfriend and that he was merely holding the items for safekeeping. Contemporaneously, Sergeant Kelly performed a search of the defendant's wallet and uncovered documentation, specifically a receipt, in the name of Maureen Cloonan, who resided at 45 Bridge Street.

Suspecting that the defendant was incapacitated, Sergeant Kelly determined that he should be taken into protective custody. The officers handcuffed the defendant and transported him to the Quincy police station. One of the officers eventually spoke with the defendant's girlfriend by telephone. She confirmed that the jewelry did not belong to her and indicated that the defendant did not have any alcohol, or sufficient funds to purchase the same, on his person when she dropped him off in the vicinity of Roberts Street earlier in the evening. Subsequent investigation at the police station revealed that the cell phone, gold bracelet, and gold chain were reported stolen, and that the residence at the address listed on the receipt seized from the defendant had been recently burglarized.

Discussion. The defendant challenges Sergeant Kelly's initial threshold inquiry, the initial patfrisk, the validity of the defendant's ensuing consent to the additional search performed by Officer Keenan, and the defendant's eventual detention pursuant to G.L. c. 111B, § 8. He maintains that the unlawful nature of these actions requires suppression of all evidence flowing from the violations as fruit of the poisonous tree. We address each contention in turn. When reviewing a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error. Commonwealth v. Isaiah I., 450 Mass. 818, 821, 882 N.E.2d 328 (2008). “Our review of the application of constitutional principles to those facts, however, is plenary.” Commonwealth v. Watts, 74 Mass.App.Ct. 514, 516–517, 908 N.E.2d 788 (2009), quoting from Commonwealth v. Kaupp, 453 Mass. 102, 105, 899 N.E.2d 809 (2009).

a. Threshold inquiry. [A] police officer may stop an individual and conduct a threshold inquiry if the officer reasonably suspects that such individual has committed, is committing, or is about to commit a crime.” Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). The officer's suspicion must be based on specific, articulable facts and reasonable inferences drawn from them. Ibid.

The circumstances surrounding Sergeant Kelly's initial detention of the defendant support a finding of reasonable suspicion for the stop. In assessing the reasonableness of an officer's acts our function is not to probe each fact and inference underlying his suspicion individually, but rather collectively, “as a whole.” Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981). To this end, [s]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry.” Commonwealth v. Watson, 430 Mass. 725, 729, 723 N.E.2d 501 (2000). Here, Sergeant Kelly encountered the defendant well after midnight in a high-crime area not long after a reported burglary. The defendant, who was the only discernible individual in the vicinity at the time, emerged from a side yard, that is, from private property. He then sought to evade Sergeant Kelly by altering his path of travel. Finally, the defendant was in possession of what a fact finder could consider a burglarious tool, a flashlight, which he attempted to conceal as Sergeant Kelly approached.6 We conclude that Sergeant Kelly's initial stop of the defendant was warranted.

b. Protective patfrisk. The defendant challenges the justification for the patfrisk, which occurred promptly after he was stopped. As stated above, the patfrisk yielded a Verizon LG digital cell phone, a large amount of change, and a partially consumed pint of vodka. None of these items was evidence relevant to, or supported, the defendant's conviction. We therefore need not address the judge's determination that the search was justified or her decision not to suppress these items.

c. Consent search. We now address the voluntariness of the defendant's consent to a second search conducted by Officer Keenan within minutes of the initial search. We consider this issue with the assumption stated by the defendant, utilized here purely for purposes of analysis, that the patfrisk preceding the consent search was unjustified.

“When consent to search is obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, the consent has not been regarded as freely given.” Commonwealth v. Midi, 46 Mass.App.Ct. 591, 595, 708 N.E.2d 124 (1999). The defendant argues, as in Midi, that the fruits of the initial search were unlawful, and that these fruits prompted the officers' request to search him a second time. The Commonwealth bears the burden of proving otherwise. Ibid.

However, the record provides no basis to conclude that the defendant was under coercion when he consented to the second search, and he makes no such claim.7 He argues on appeal that there was no attenuation that would remove the taint created by the illegal stop. Since we conclude that the stop was justified, the only remaining question posed by the defendant's assertion is whether the officers' request to search was a direct result of the preceding patfrisk. Evidence obtained in the aftermath of an unlawful seizure does not “automatically become ‘sacred and inaccessible.’ Commonwealth v. Frodyma, 393 Mass. 438, 441, 471 N.E.2d 1298 (1984), quoting from Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Rather, the “apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence ... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Ibid., quoting from Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). If knowledge of the facts justifying subsequent conduct “is gained from an independent source, [it] may be proved like...

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9 cases
  • Commonwealth v. Jones
    • United States
    • Appeals Court of Massachusetts
    • 22 Julio 2019
    ...next. 2. Second encounter. "Evidence obtained by exploiting unlawful police conduct must be suppressed." Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 649, 948 N.E.2d 906 (2011). Nevertheless, "[e]vidence obtained subsequent to unlawful police conduct does not automatically become sacre......
  • Commonwealth v. Estabrook
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 28 Septiembre 2015
    ...himself, Bradley, and others in the shooting. These statements also are not required to be suppressed.18 See Commonwealth v. Nickerson, 79 Mass.App.Ct. 642, 649, 948 N.E.2d 906 2011 ) (police misconduct “cannot deprive the [Commonwealth] of the opportunity to prove [the defendant's] guilt t......
  • Alfano v. Lynch, 16-1914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Febrero 2017
    ...for example, has authored Janus-like decisions that appear to face in conflicting directions. Compare Commonwealth v. Nickerson, 79 Mass.App.Ct. 642, 948 N.E.2d 906, 913 (2011) (suggesting that "reasonable suspicion" standard applies), with Commonwealth v. Thomas, 73 Mass.App.Ct. 1127, 902 ......
  • Alfano v. Lynch, 16-1914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Febrero 2017
    ...Court, for example, has authored Janus-like decisions that appear to face in conflicting directions. Compare Commonwealth v. Nickerson, 948 N.E.2d 906, 913 (Mass. App. Ct. 2011) (suggesting that "reasonable suspicion"Page 13 standard applies), with Commonwealth v. Thomas, 902 N.E.2d 433, at......
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