Commonwealth v. Shane S.

• Decision Date: 27 September 2017
• Docket Number: No. 15-P-1746.,15-P-1746.
• Citation: 92 Mass.App.Ct. 314,83 N.E.3d 837
• Parties: COMMONWEALTH v. SHANE S., a juvenile.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 314

83 N.E.3d 837

COMMONWEALTH

v.SHANE S., a juvenile.

No. 15-P-1746.

Appeals Court of Massachusetts, Suffolk..

Argued February 14, 2017.

Decided September 27, 2017.

Rebecca L. Rose for the juvenile.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

Present: Green, Meade, & Agnes, JJ.

AGNES, J.

This appeal follows a jury-waived trial which resulted in a determination that the juvenile was a youthful offender by unlawfully possessing a firearm in violation of G. L. c. 269, § 10(a ), and delinquent by reason of carrying a loaded firearm without a firearm identification card in violation of G. L. c. 269, § 10(n ). The juvenile was committed to the custody of the Department of Youth Services until age twenty-one. The sole question on appeal is whether the motion judge, who also was the trial judge, erred in denying the juvenile's pretrial motion to suppress evidence. More particularly, the juvenile contends that he was unlawfully seized by the police without reasonable suspicion or probable cause, and that the firearm and ammunition offered in evidence at his trial should have been suppressed as the fruits of that claimed unlawful seizure. We affirm.

Background. Two Boston police officers testified at the hearing on the juvenile's motion to suppress. The following account is based on the judge's findings of fact and other testimony by the officers, which the judge implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). On January 6, 2015, Officer Eric Merner responded to a radio broadcast that a person on conditional release from a pending criminal charge, Dion Ruiz, was in a global positioning system (GPS) exclusion zone in the area of Washington and Ruggles Streets in Boston.¹ Officer Merner received a picture of Ruiz on his cellular telephone (cell phone), and proceeded to the area to search for Ruiz. As he approached the area in question, Officer Merner observed the juvenile in this case standing on the corner of Washington and Ruggles Streets. Officer Merner's attention was initially drawn to the juvenile because the juvenile was near the area where he was searching for Ruiz. Further down Washington Street, Officer Merner located Ruiz, whom he identified based on the photograph he had received. While observing Ruiz, Officer Merner noticed the juvenile approaching Ruiz at a "light jog" while maintaining eye contact with Ruiz. As the juvenile jogged toward Ruiz, he held both of his hands in front of his "belt buckle area" at his waist, with his elbows sticking out to the sides. This drew Officer Merner's attention as an unnatural way of jogging. Officer Merner had undergone specialized training on the characteristics of an armed person, one of which included walking or running with arms pinned down so as to hold onto a firearm.

Officer Merner observed the juvenile meet Ruiz and have a conversation before they walked away together along Washington Street. Officer Merner, in plain clothes and in an unmarked car, then radioed for a patrol car to stop Ruiz. Officer David Crabbe and his partner responded to the call. Upon arriving on the scene, Officer Crabbe observed the juvenile and Ruiz walking together.

Officer Crabbe and his partner exited their vehicle approximately thirty feet in front of the juvenile and Ruiz, who were walking in the officers' direction, and waited on the sidewalk for them to approach. When the juvenile and Ruiz drew near, Officer Crabbe said, "Hey, guys, can I talk to you for a sec?" and the juvenile and Ruiz stopped walking. It was Officer Crabbe's intention to retrieve a picture of Ruiz on his cell phone and ask, "Are you Dion Ruiz?" However, as he was taking out his cell phone and asking the question, the juvenile fled, running past Officer Crabbe, who dropped his cell phone.

After picking up his cell phone from the ground, Officer Crabbe turned around and observed the juvenile running away. At that point he had not made a decision whether to follow the juvenile. Officer Crabbe, like Officer Merner, had undergone training in identifying the characteristic movements of someone who is armed with a firearm. He observed the juvenile running with "his right arm being pinned up against his—the right side of his body as he was running with his left hand swinging fully." Based on this observation, Officer Crabbe believed that the juvenile might be carrying a firearm, and decided to run after him. Officer Crabbe did not call out to the juvenile to stop, or otherwise indicate to the juvenile that he was following the juvenile. While following the juvenile, Officer Crabbe observed him pause near two grills against the side of a building, bend over at the waist next to the grills, then straighten up and resume running. Officer Crabbe observed that after bending down near the grills, the juvenile ran for the first time with both arms swinging freely.

While running after the juvenile, Officer Crabbe lost sight of him several times. Shortly thereafter, roughly one block away, Officer Crabbe and Officer Merner, who had driven his car around the block, encountered the juvenile. He was walking toward the officers at a normal pace, "as if trying to blend in." The officers approached the juvenile. They had a brief conversation during which Officer Crabbe placed his hand on the juvenile's chest and felt his heart beating "very quickly." Officer Crabbe also observed that the juvenile was breathing heavily. Officer Merner noted that the juvenile appeared "a bit excited." Shortly thereafter, the juvenile was placed in handcuffs; a patfrisk of his person did not yield any weapons.² Officer Crabbe retraced the juvenile's flight path to where he had observed the juvenile pausing to bend down near the two grills. In the area of the grills Officer Crabbe discovered a loaded firearm.

Discussion. 1. Standard of review. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given [to the] testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004). However, "[w]e review independently the application of constitutional principles to the facts found." Ibid. The Commonwealth bears the burden of demonstrating that the actions of the police officers were within constitutional limits. Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007).

2. Police surveillance does not constitute a seizure. In cases involving street encounters between the police and civilians that result in the seizure of contraband such as firearms or drugs, determining the moment when the person was seized is often the critical question that the judge must decide. See Commonwealth v. Barros, 435 Mass. 171, 173, 755 N.E.2d 740 (2001). Massachusetts law adheres to an objective standard whereby a person has been "seized" by a police officer "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985), quoting from United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). "Whether, and when, a seizure has occurred ‘will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.’ " Commonwealth v. Evans, 87 Mass. App. Ct. 687, 690-691, 34 N.E.3d 772 (2015), quoting from Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). See Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the present case, before the police approached the juvenile, Officer Merner observed him jog toward Ruiz while holding his hands at his waist with his elbows sticking out. Police surveillance, consisting of observations of a person's movements in public places, is not a seizure and does not require any level of suspicion. Commonwealth v. Williams, 422 Mass. 111, 116, 661 N.E.2d 617 (1996).³

3. The police questioning did not constitute a seizure. The Supreme Judicial Court and this court have often considered street encounters between the police and a civilian in which the police ask a question in an effort to identify the civilian or to gather information about a report of criminal activity in the area. "There is no seizure where police merely ask questions unless a reasonable person, given the circumstances of the encounter, would believe he was not free to walk away." Commonwealth v. Franklin, 456 Mass. 818, 820, 926 N.E.2d 199 (2010).⁴ Contrast Evans, 87 Mass. App. Ct. at 692, 34 N.E.3d 772 (explaining that duration and intensity of police questioning can be "sufficiently intimidating" that reasonable person in defendant's position would feel compelled to answer). Here, the judge was correct in ruling that by approaching Ruiz and the juvenile and simply asking, "Hey, guys, can I talk to you for a sec?" Officer Crabbe did not seize the juvenile.

4. The police pursuit did not constitute a seizure. "Whether a police ‘pursuit’ will be considered a seizure depends on the particular nature of the law enforcement action." Commonwealth v. Sykes, 449 Mass. 308, 312, 867 N.E.2d 733 (2007). Here, the juvenile argues in the alternative that he was seized by the police as soon as Officer Crabbe began to pursue him. There is no evidence in the record that Officer Crabbe called out to the juvenile to stop or that the juvenile was aware that Officer Crabbe was chasing him.⁵ Officer Crabbe testified that when the juvenile ran past him, "I let him run for a little bit so I could observe." Officer Crabbe then explained that he began to run after the juvenile, observed the juvenile appear to hide something in the area where the police later discovered a firearm, and eventually, after losing sight of him several times, saw the juvenile...