Commonwealth v. Sweeting-Bailey, SJC-13086

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCYPHER, J.
Docket NumberSJC-13086
PartiesCOMMONWEALTH ZAHKUAN SWEETING-BAILEY.,
Decision Date22 December 2021

COMMONWEALTH
v.

ZAHKUAN SWEETING-BAILEY., [1]

No. SJC-13086

Supreme Judicial Court of Massachusetts, Bristol

December 22, 2021


Indictments found and returned in the Superior Court Department on March 15, 2018. A pretrial motion to suppress evidence was heard by Raffi N. Yessayan, J., and a conditional plea was accepted by him.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Elaine Fronhofer for the defendant.

Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

David Rassoul Rangaviz, Committee for Public Counsel Services, Radha Natarajan, Katharine Naples-Mitchell, Oren N. Nimni, Chauncey B. Wood, Erin Fowler, & Leon Smith, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

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CYPHER, J.

Following a routine traffic stop for an improper lane change, the defendant, Zahkuan Sweeting-Bailey, who had been a rear seat passenger in the vehicle, was ordered out of the vehicle and was pat frisked. Although the stop began as routine, when officers approached the vehicle, the front seat passenger immediately got out of the car, engaged in an argument with the officers, and took a threatening fighting stance. The officers, who were familiar with that passenger from prior encounters, found his angry outburst highly suspicious and believed he was trying to distract them from the vehicle because there was a firearm inside. The three male passengers in the car, including the defendant, were known to the officers as gang members with prior involvement with firearms. During the patfrisk of the defendant, an officer found a firearm tucked into the waist of his pants, and he was arrested.

The defendant was indicted on a number of firearm offenses.[2]After a judge in the Superior Court denied the defendant's

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motion to suppress, he entered a conditional guilty plea to the charges of possession of a firearm without a license and possession of a large capacity feeding device, and the other charges were dismissed. The defendant appealed from his convictions, and the Appeals Court affirmed. We granted the defendant's application for further appellate review. After considering the facts and inferences as a whole, we conclude that the officers had reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous. Commonwealth v. Gomes, 453 Mass. 506, 511 (2009) . Accordingly, we affirm the order denying the defendant's motion to suppress.[3]

Background.

At approximately 7 P.M. on a February evening, three detectives from the New Bedford police department's gang unit, Kory Kubik, Gene Fortes, and Roberto DaCunha, observed a red sedan change lanes abruptly, causing another vehicle to slam on its brakes in order to avoid a collision. The officers followed the sedan as it turned into the parking lot of a fast food restaurant, activated their lights, and initiated a traffic

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stop. At that point, the officers did not know who was in the red sedan.

The vehicle was parked facing toward the restaurant, and the entrance to the restaurant was on the driver's side. Once the vehicle stopped, but before the officers approached, one of the passengers, Raekwan Paris, got out of the vehicle and began pacing between the officers and the vehicle on the passenger side, walking away from the entrance to the restaurant. Paris was angrily confronting them regarding the reason for the stop.

The officers were familiar with Paris from previous encounters, including field interrogations and arrests for firearm offenses. In the past, they had observed that he was cooperative and polite. At the time of this stop, Paris had been released on bail for a 2016 firearm charge.[4] Both Kubik and DaCunha had been involved in the 2016 arrest and recalled that Paris's demeanor had been calm and cordial during that encounter. Kubik also had interacted with Paris during two different traffic stops and had found his demeanor to be similarly cooperative and calm. Fortes, previously a school resource officer, had known Paris "since he was a young kid." Fortes had seen Paris at school events over the years and

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recalled that he had "always had a good rapport" with Paris. Additionally, Fortes had had interactions with Paris during car stops and field interrogations. Fortes described Paris as "respectful" during all encounters.

During this encounter, however, DaCunha instructed Paris three times to reenter the car, but he refused. While two of the officers were occupied with Paris, the third attempted to approach the driver's window to speak with the female driver, but became concerned by the "escalating" situation between Paris and the other officers. The officers were unable to address the reason for the stop because of Paris's behavior. They observed that he was "becoming more angry." Fortes testified that, at this time, they were entirely focused on Paris: "his behavior was so agitated . . . and different that all my focus was -- was really on him." Fortes also testified that Paris took "a bladed stance" and that he was unsure if Paris was "getting ready . . . to attack" him. Fortes observed that Paris was "sizing [him] up" and found this behavior to be "very uncharacteristic of him." The officers also observed that Paris had "a closed, clenched fist" before he was handcuffed and that Paris did not appear to be intoxicated.

Paris was brought to the rear of the red sedan, handcuffed, and pat frisked. Only then were the officers able to turn their attention to the occupants of the car. The officers issued an

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exit order and conducted a patfrisk of the driver and the two remaining passengers.[5] Although Fortes testified that Paris "calmed down a little" after he was brought to the back of the car, it is important to note that from the time Paris had gotten out of the car to the time the defendant was asked to get out of the car, only ninety seconds had elapsed.

The three male occupants of the vehicle were familiar to the officers at the time of the stop. Two of the officers had been involved in an incident about eighteen months earlier in which Paris had been arrested on two firearms-related charges. Officers had information that the back seat passenger, Carlos Cortes, had posted pictures of a firearm on social media within the previous month and were aware that the defendant had a three year old juvenile adjudication for an offense involving a firearm. Additionally, the officers were aware that Paris was a member of two gangs, the United Front and Bloods. The officers also were aware that the defendant was a member of the Bloods gang and that Cortes was a member of a gang in Fall River.

Discussion.

A patfrisk is permissible only where an officer has reasonable suspicion that the stopped individual may be armed and dangerous. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 36-37 (2020). In assessing whether an officer has

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reasonable suspicion to justify a patfrisk, "we ask 'whether a reasonably prudent [person] in the [officer's] position would be warranted'" in the belief "that the safety of the police or that of other persons was in danger." Commonwealth v. Torres, 433 Mass. 669, 675-676 (2001), quoting Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997). See Commonwealth v. Gonsalves, 429 Mass. 658, 666 (1999). An innocent explanation for an individual's actions "does not remove [those actions] from consideration in the reasonable suspicion analysis." Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007) .

In Torres-Pagan, 484 Mass. at 36 n.3, we clarified that "reasonable suspicion" that an individual is armed and dangerous, not "reasonable belief," "is the preferred patfrisk standard" (citations omitted). See Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). We acknowledged, however, that "the two standards are interrelated and perhaps even interchangeable." Torres-Pagan, supra. "The purpose behind the protective measures allowed by Terry [v. Ohio, 392 U.S. 1 (1968), ] is to enable an officer to confirm or dispel reasonable suspicions" that the stopped individual may be armed and dangerous. Commonwealth v. Pagan, 440 Mass. 62, 68 (2003).

In reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings

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and conclusion of law." Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Neves, 474 Mass. 355, 360 (2016), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). "[F]indings drawn partly or wholly from testimonial evidence are accorded deference and are not set aside unless clearly erroneous." Tremblay, supra at 655. Here, the motion judge found the officers' testimony "credible in all relevant respects." The motion judge also concluded that the officers' inference that Paris was attempting to distract them from the vehicle was reasonable. We accept the motion judge's finding that the officers believed Paris was attempting to create a diversion; however, we review de novo the motion judge's conclusion that the officers' inference was objectively reasonable. See Commonwealth v. Mercado, 422 Mass. 367, 369 (1996) (we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found").

Factors that the motion judge considered included Paris's "uncharacteristic" behavior during the traffic stop, which officers interpreted as an effort to draw their attention away

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from the vehicle and its contents, the...

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