Commonwealth v. Privette
| Decision Date | 14 September 2021 |
| Docket Number | No. 20-P-251,20-P-251 |
| Citation | 100 Mass.App.Ct. 222,176 N.E.3d 289 |
| Parties | COMMONWEALTH v. David PRIVETTE. |
| Court | Appeals Court of Massachusetts |
Anne Rousseve, Committee for Public Counsel Services, for the defendant.
Daniel J. Nucci, Assistant District Attorney, for the Commonwealth.
Present: Massing, Sacks, & Singh, JJ.
This is the defendant's interlocutory appeal from a Superior Court judge's order denying the defendant's motion to suppress a gun and other fruits of a stop and frisk. The gun and other evidence led to the defendant's indictments for armed robbery and various firearms offenses. We conclude that police had reasonable suspicion that the defendant had just committed an armed robbery, thus justifying the stop and frisk. We therefore affirm the order denying the suppression motion.
Background. We summarize the judge's detailed findings of fact, supplementing with additional facts from testimony that the judge explicitly or implicitly credited.1 See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). As of August 2018, Boston Police Officer Brian Doherty had been a police officer for five years and had been assigned for three years to the C-11 Dorchester area, which he already knew well because he had grown up there. On August 12, 2018, Doherty and a partner were working the midnight shift in plain clothes and an unmarked car. At approximately 3:36 A.M. , Doherty received a radio transmission, on the channel dedicated to C-11 use,2 that there had been a robbery at gunpoint of a gasoline station on Morrissey Boulevard at the intersection of Freeport Street.
The initial transmission identified the suspect as a Black male in his late twenties, between five feet, seven inches and five feet, eight inches in height, of medium build, and wearing blue jeans3 and a blue hooded sweatshirt. This initial description did not mention that the suspect had any facial hair, a point to which we return infra. The suspect had left the gasoline station on foot in the direction of a CVS store (CVS) further south on Morrissey Boulevard, at the intersection of Victory Road.
Upon hearing the call, Doherty did not drive to the gasoline station, because other officers were en route. Instead, he searched the streets for the suspect. Doherty headed toward the Clam Point area, which is close to the gasoline station and the CVS. Intimately familiar with that area, Doherty knew that nearby, on the same side of Morrissey Boulevard as the gasoline station, there was a large gap in the fence that separated Morrissey Boulevard from Ashland Street, part of Clam Point. Doherty traveled on Victory Road and then drove around four side streets in the Clam Point area for approximately four to six minutes. During that time, Doherty observed no one walking on the streets. It was raining at the time.
At 3:43 A.M. , seven minutes after hearing the first broadcast about the robbery, Doherty turned from Mill Street onto Ashland Street. There Doherty saw a man, later identified as the defendant, walking at a normal pace in the direction of Doherty's unmarked car. Along with the rain, the area was poorly lit. Doherty observed that the defendant was a Black man, of the same approximate age as on the broadcast, and that he had noticeable facial hair, consisting of a beard. He was wearing a green sweater and black jeans.4 He was also wearing a red plaid backpack. He was later determined to be thirty-two years old and five feet, eleven inches tall.
Doherty parked, approached the defendant on foot, identified himself as a Boston police officer, and instructed the defendant to show his hands. The defendant did so, without attempting to run or otherwise evade Doherty. Because the armed robbery had occurred a short time earlier, and because the defendant was the sole person seen walking in the area of the robber's "flight path," Doherty conducted a patfrisk.
He felt the front pocket of the defendant's jeans, felt a large wad of cash, removed it from the defendant's pocket, and then immediately returned it to the defendant.
At the same time, Boston Police Lieutenant Darryl Dwan arrived on the scene.5 Dwan had been working a detail on Victory Road on the other side of Morrissey Boulevard when he heard the first radio call about the robbery. Dwan, driving his private car, proceeded on Victory Road toward Morrissey Boulevard and the CVS to look for the suspect. Seeing no one, Dwan turned north onto Morrissey Boulevard, drove to the gasoline station, made a U-turn, and drove south again to the CVS. He was scanning the street the entire time but did not see anyone.
As Dwan drove, he heard an updated radio description, which included the detail that the suspect had facial hair. Dwan continued on Victory Road, turned north on a Clam Point side street, and proceeded to where it intersected with Ashland Street. There he saw a man in dark clothing, wearing a backpack, walking away from him on Ashland Street; the man, later identified as the defendant, was the only person on the street. Dwan turned left onto Ashland Street, parked, and got out of his car. At the same time, he could see officers approaching the defendant from the other end of Ashland Street.6 Dwan approached the defendant from behind; once the defendant removed his backpack as instructed, Dwan conducted a patfrisk of the outside of the backpack. He located a hard object that "felt like the butt end of a firearm." He opened the backpack and found a silver gun near the top, as well as a blue hooded sweatshirt.
Boston Police Officer Luis Lopez was also working in the area that night, in uniform and in a marked cruiser. Lopez concentrated his search efforts in the Victory Road area near the CVS, but he saw no one. After the defendant was stopped and frisked, a decision was made to conduct a showup identification procedure, so Lopez was instructed to pick up the robbery victim at the gasoline station and bring him to where Doherty and Dwan were holding the defendant. Lopez did so. Upon seeing the defendant, the victim stated, The defendant was arrested.
After he was indicted, the defendant moved to suppress the fruits of the stop and frisk as not justified by reasonable suspicion that he was the armed robber. The judge denied the motion.7 The defendant then obtained leave to pursue this interlocutory appeal.
Discussion. In reviewing a ruling on a motion to suppress, "we adopt the motion judge's factual findings absent clear error," Isaiah I., 450 Mass. at 821, 882 N.E.2d 328, and "conduct an independent review of [her] ultimate findings and conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We are "free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997).
"To justify a police investigatory stop under the Fourth Amendment [to the United States Constitution] or art. 14 [of the Massachusetts Declaration of Rights], the police must have ‘reasonable suspicion’ that the person has committed, is committing, or is about to commit a crime" (citation omitted). Commonwealth v. Costa, 448 Mass. 510, 514, 862 N.E.2d 371 (2007). The parties agree that the defendant was seized at the moment Doherty instructed him to show his hands. We thus focus on whether, at that moment, Doherty had a reasonable suspicion that the defendant had committed the armed robbery.8
Before reviewing the factors relevant to that determination, we first consider whether the reasonable suspicion calculus may take into account that the updated description, heard by Dwan before the stop, included the fact that the suspect had facial hair. This fact is significant because Doherty, before stopping the defendant, observed that the defendant had a beard. If Dwan's knowledge may be imputed to Doherty under the collective knowledge doctrine, see Commonwealth v. Roland R., 448 Mass. 278, 285, 860 N.E.2d 659 (2007), then Doherty would have an additional basis for reasonable suspicion that the defendant was the robber.
1. Knowledge that suspect had facial hair. Doherty gave internally contradictory testimony regarding whether, when he stopped the defendant, he was aware that the suspect had been described as having facial hair, and the judge did not resolve that conflict. We therefore turn to Dwan's knowledge.
Dwan testified that he heard not only the initial radio call for the armed robbery but also, as he drove on Morrissey Boulevard looking for the suspect, an updated description. Asked whether he remembered any parts of that description, Dwan replied, "I believe it was a [B]lack male, late 20's, facial hair of some sort, wearing a blue hooded sweatshirt, blue jeans."
The judge made no finding regarding this part of Dwan's testimony, but "an appellate court may supplement a motion judge's subsidiary findings with evidence from the record that ‘is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony.’ " Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015), quoting Isaiah I., 448 Mass. at 337, 861 N.E.2d 404. We "may do so only so long as the supplemented facts do not detract from the judge's ultimate findings" (quotation and citation omitted). Jones-Pannell, supra. Here, (1) the judge generally credited Dwan's testimony, without any explicit or implicit qualification; (2) Dwan's testimony was uncontroverted and indeed confirmed by the recordings in evidence;9 and (3) supplementing the findings with Dwan's testimony would not detract from the judge's ultimate findings.10 We are thus free to, and do, consider it as showing Dwan's knowledge that the description included facial hair.
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