Commonwealth v. Wilson, SJC-09156 (Mass. 4/5/2004), SJC-09156

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation441 Mass. 390
Docket NumberSJC-09156
Decision Date05 April 2004

Page 1

Supreme Judicial Court of Massachusetts.
February 5, 2004.
April 5, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Controlled Substances. Search and Seizure, Clothing, Reasonable suspicion. Evidence, Inflammatory evidence, Hearsay, Relevancy and materiality, Expert opinion, Intent. Intent.

Complaint received and sworn to in the Brockton Division of the District Court Department on October 25, 2000.

A pretrial motion to suppress evidence was heard by James F.X. Dinneen, J., and the case was tried before Paul C. Dawley, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Edward J. O'Brien for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

John Reinstein & Murray Kohn, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.


The defendant appeals from his convictions of possession of marijuana with the intent to distribute and for committing this offense within 1,000 feet of a school. See G. L. c. 94C, §§ 32C, 32J. On appeal, the defendant claims that his motion to suppress marijuana discovered on his person pursuant to a patfrisk should have been allowed. The defendant also claims that the trial judge erred in permitting a police officer to give irrelevant, prejudicial testimony; admitting expert testimony that the items found on the defendant were consistent with an intent to distribute; and denying the defendant's motions for required findings of not guilty. We transferred the case here on our own motion and now affirm.1

1. Motion to suppress. The defendant claims that his motion to suppress should have been allowed because the seizure of the marijuana violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Specifically, the defendant argues that the judge's findings of fact were clearly erroneous, that the officer conducting the patfrisk lacked reasonable suspicion to stop and frisk the defendant, and that the scope of the frisk exceeded that which is constitutionally permissible. In his challenge to the scope of the frisk, the defendant raises an issue of first impression, whether the "plain feel" doctrine comports with the requirements of art. 14. We conclude that it does; that the judge's findings were supported by the evidence; that there was reasonable suspicion for the stop and the frisk; and therefore, that the evidence was properly seized.

a. Facts. We summarize the facts found by the motion judge supplemented by uncontested testimony from the motion hearing. These findings substantially overlap with the Commonwealth's evidence at trial.2 On the night of October 24, 2000, the Brockton police received a telephone call from a person who stated, "[T]his is Stella's Pizza." The caller reported that a person was being beaten with a hammer or being stabbed in a group of ten people huddled across the street from the small commercial area where the pizza parlor was located. A police radio dispatch was broadcast containing this information, and State Trooper Francis Walls, alone in his unmarked vehicle and dressed in plain clothes, was the first officer to arrive at the scene. Walls stopped a short distance from the commercial area, saw a group of nine or ten men standing in a circle, but detected no suspicious activity. He was familiar with the area as one where he had made numerous arrests for drug and weapon violations and fights.

When he saw a backup vehicle close by, Walls pulled up to the group of men. As he got out of his vehicle, Walls made eye contact with the defendant. On making eye contact, the defendant turned, started walking away from Walls, and put his hand "to his waist area." The defendant's back was toward Walls, who, at this point, was concerned that the defendant possessed a gun. Walls grabbed the defendant by the back of his shirt and simultaneously placed his hand on "the area of the defendant's waist" where the defendant's hand had been. As soon as Walls put his hand on the defendant's waist, he felt a bundle of smaller packages, which he recognized by feel as "dime" bags of marijuana. Walls immediately asked the defendant, "You did that for weed? I thought you were putting a gun in your pants." The defendant responded that he did not "mess with guns." Walls retrieved the bag from the defendant's waist and handcuffed him.

Two backup officers, also in an unmarked vehicle and in plain clothes, were getting out of their vehicle3 as Walls stopped and frisked the defendant. No evidence was found of the assault or beating that had been the subject of the radio dispatch. The defendant was arrested, and an inventory search revealed that in addition to the seized "dime" bags of marijuana, a pager, a cellular telephone, and $476 in cash were in his possession.

b. Discussion. 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 oral testimony presented at the motion hearing. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases cited. We review independently the application of constitutional principles to the facts found. Commonwealth v. Eckert, 431 Mass. 591, 593 (2000), and cases cited.

The defendant claims that the police lacked the requisite reasonable suspicion to stop him and to initiate a patfrisk. "In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." Commonwealth v. Silva, 366 Mass. 402, 405 (1974). In both aspects, the inquiry is whether the police conduct was reasonable under the Fourth Amendment. Id.

In regard to the stop, a police officer may make an investigatory stop where suspicious conduct gives the officer reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime. Id. Concerning the second part of the analysis, a Terry-type patfrisk incident to the investigatory stop is permissible where the police officer reasonably believes that the individual is armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968). Commonwealth v. Silva, supra, and cases cited. The officer's action in both the stop and the frisk must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience. Id. at 406.

Applying these principles to the facts in this case, we first consider the stop. The defendant was seized (or stopped) when Walls grabbed the back of his shirt.4 At that time, specific and articulable facts supported Walls's belief that the defendant had committed a crime. Walls was responding to a radio dispatch that described ten people involved in a stabbing or beating with a weapon outside Stella's Pizza. On arriving at the location, an area of Brockton where Walls had made numerous arrests for fights and weapon violations, Walls's observations confirmed a group of men huddled on the sidewalk, just as the caller had described. As he left his vehicle, Walls made eye contact with the defendant who immediately turned away from him, walked away from the group, and simultaneously moved his hand into his "waist area." The totality of these facts supports a reasonable belief that the defendant had been involved in a fight with a weapon and, therefore, the stop was proper. Commonwealth v. Mercado, 422 Mass. 367, 371 (1996). The same facts justify the patfrisk, as they establish a reasonable belief that the defendant was armed and dangerous and presented a threat to the officer or others. See Commonwealth v. Fraser, 410 Mass. 541, 546 (1991) (protective frisk justified where officer responded to radio dispatch describing armed suspect, encounter took place in "high crime area," suspect appeared to pick something up or put something down, and suspect had hands in pockets when confronted by officer).

The defendant contends that the judge's findings concerning the stop and the frisk are clearly erroneous. With the exception of one finding,5 that is not the case. The defendant challenges the finding that Walls observed the defendant's hand going to his waist area. Wall's testimony at the motion hearing supports the judge's finding. On direct examination, Walls stated, "As soon as he looked at me, he turned around and took his right hand and placed it into his pant line . . . ." Walls did not change his description during cross-examination, when he testified that the defendant "stuffed his hands into his pants," "placed something in his pants," "[his hand] went into his pants area," and "I could see [his hand] go into his pants area . . . ."

The defendant also challenges the reliability and credibility of the caller who reported an alleged beating or stabbing involving a weapon in front of Stella's Pizza. Where an officer's suspicion justifying a stop is based on an informant's tip, the Commonwealth has the burden of establishing the informant's reliability and basis of knowledge. A deficiency in either prong may be remedied by independent police corroboration. Because the standard is reasonable suspicion, not probable cause, "a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, 409 Mass. 16, 19...

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