Commonwealth v. Sertyl
| Docket Number | 21-P-1149 |
| Decision Date | 27 October 2022 |
| Citation | 101 Mass.App.Ct. 836,197 N.E.3d 912 |
| Parties | COMMONWEALTH v. Pierre A. SERTYL. |
| Court | Appeals Court of Massachusetts |
Alison R. Bancroft, for the defendant.
Timothy Ferriter, Assistant District Attorney, for the Commonwealth.
Present: Sullivan, Blake, & Grant, JJ.
The defendant, Pierre A. Sertyl, entered a conditional plea of guilty to charges of possession with intent to distribute a class B drug in violation of G. L. c. 94C, § 32A (a ), and carrying a firearm without a license in violation of G. L. c. 269, § 10 (a ).1 On appeal, the defendant contends that the judge erred in denying his motion to suppress because (1) the police did not have reasonable suspicion to stop the defendant; (2) the police lacked reasonable suspicion or exigent circumstances to search his backpack; and (3) the police did not have probable cause or exigent circumstances to search his car. We conclude that the motion should have been allowed, because the uncorroborated anonymous tip on which the police relied did not provide reasonable suspicion to conduct the stop. Accordingly, we reverse the order denying the motion to suppress.
Background. We summarize the facts found by the motion judge following an evidentiary hearing, supplemented with the uncontroverted evidence from the record that is in accordance with his ruling. See Commonwealth v. Garner, 490 Mass. 90, 91, 93-94, 188 N.E.3d 965 (2022). The judge found that on Tuesday, October 10, 2017, at approximately 5 P.M. , Officers McCabe and Vieira2 responded to an anonymous 911 call reporting that "three [B]lack males, wearing hooded sweatshirts and backpacks, had walked into a music recording studio located at 69 Norman St[reet] in the city of Everett, displaying firearms."3 Norman Street is an industrial area consisting of five or six metal factories, mechanic's shops, automobile body shops, and small units rented out as artists’ studios and music or recording studios. The police previously had received reports of criminal activity in that area.4
When he and Officer Vieira arrived at 69 Norman Street, Officer McCabe parked their cruiser on a street adjacent to the scene. There was no evidence as to how far away from 69 Norman Street the responding officers were when they received the call, or how long it took them to get there. As backup officers arrived, Officer McCabe saw a group of five Black men, some of whom wore "hoodies" and backpacks, "walking away from the area of the main entrance to 69 Norman Street." There was no evidence as to how far away from that entrance the men were, or how much time had elapsed since the 911 call.
Officers McCabe and Vieira approached the men and asked if the men would "mind" speaking to them. The group stopped without objection. At the same time, Officer McCabe noticed another group of individuals located approximately thirty yards away. Officers McCabe and Vieira "passed off" the first group of five men to Officers Williamson, Sabella,5 and Gaff, who had arrived at the scene. Officer Sabella held a "long arm ... M4" rifle with a large capacity feeding device to "cover" Officer Williamson. The five men were cooperative and calm, responded to requests, and made no effort to evade the police.
When Officer Williamson approached the first group of five men, one of the men (other than the defendant) had one hand in his backpack. Officer Williamson ordered him to remove his hand. The officer then seized that backpack. The defendant stood with his backpack on his back with an arm through each strap. The officer "took possession of" the defendant's backpack as well.
Officer Williamson lifted the defendant's backpack, which was heavy. He did not feel the outside of the backpack. Instead, he unzipped it and saw a firearm. He then alerted the other officers, and both men were handcuffed. Officer Gaff searched the defendant's backpack again and found small bags containing what appeared to be narcotics. Officers searched the defendant and took his car keys. Another officer performed a search of a parked car using the keys found on the defendant and seized an additional bag thought to contain drugs.6
The judge concluded that police had reasonable suspicion to stop the group of five men, that the officers reasonably suspected that the men were armed, and that the officers were permitted to take and search the defendant's backpack for this reason as well as officer safety. The judge further concluded that exigent circumstances existed to search the car, which was parked on a public street.
Discussion. (quotations and citations omitted). Commonwealth v. Meneus, 476 Mass. 231, 234, 66 N.E.3d 1019 (2017).
Our first task is to determine when the stop began. We consider "whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay." Commonwealth v. Matta, 483 Mass. 357, 362, 133 N.E.3d 258 (2019). Both the Commonwealth and the defendant agree that the initial request by Officers McCabe and Vieira to talk to the defendant and his companions did not constitute a stop, as do we. See id. at 360, 133 N.E.3d 258.
The defendant asserts that a consensual encounter was converted to a stop in the constitutional sense when multiple police officers appeared on the scene, including an officer who held a rifle and "covered" the other officers. The Commonwealth contends that the stop began when an officer took the backpacks. The judge ruled that the police had reasonable suspicion to stop and question the men, suggesting that, at the least, he considered the presence of multiple officers, one of them holding a rifle, to mean that the men were not free to leave.7 See Matta, 483 Mass. at 365, 133 N.E.3d 258 (); Commonwealth v. Willis, 415 Mass. 814, 820, 616 N.E.2d 62 (1993) ( ). Either way, once the backpacks were taken, the officers had engaged in a show of force that prevented the defendant from leaving.
We therefore turn to (quotations and citation omitted). Commonwealth v. Warren, 475 Mass. 530, 534, 58 N.E.3d 333 (2016). "The essence of the reasonable suspicion inquiry is whether the police have an individualized suspicion that the person seized is the perpetrator of the suspected crime." Id.
In this case, the reasonable suspicion calculus turns on the reliability of the anonymous tip. "[I]f the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge." Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Here, there is no evidence of the anonymous caller's basis of knowledge or reliability. See Commonwealth v. Gomes, 458 Mass. 1017, 1018-1019, 937 N.E.2d 13 (2010) (). Contrast Commonwealth v. Lopes, 455 Mass. 147, 156, 914 N.E.2d 78 (2009) ().
"Independent police corroboration may make up for deficiencies in one or both of these factors." Lyons, 409 Mass. at 19, 564 N.E.2d 390.8 There is, however, little or no corroboration in this case that a crime was committed, or was about to be committed, or that the defendant was the person who had committed, was committing, or was about to commit a crime.
The dispatcher's report that three Black men had walked into a music studio "displaying" guns, in the absence of the 911 recording or other information gleaned by the police, was too vague to establish reasonable suspicion that a crime had been, was being, or was about to be committed. A tip must be reliable "in its assertion of illegality, not just in its tendency to identify a determinate person." Gomes, 458 Mass. at 1019, 937 N.E.2d 13, quoting Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The Commonwealth contends that the anonymous tip regarding a gun in a public place created an exigency that warranted the stop, but our appellate courts have rejected this assertion as a blanket proposition when its sole basis is an uncorroborated (and therefore unreliable) anonymous tip. See, e.g., Meneus, 476 Mass. at 239, 66 N.E.3d 1019 (); Gomes, supra at 1018, 937 N.E.2d 13 (); Commonwealth v. Barros, 435 Mass. 171, 172, 178, 755 N.E.2d 740...
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