Commonwealth v. Acevedo

898 N.E.2d 864, 73 Mass. App. Ct. 453, 2009 Mass. App. LEXIS 4
CourtMassachusetts Appeals Court
DecidedJanuary 5, 2009
DocketNo. 08-P-121
StatusPublished
Cited by5 cases

This text of 898 N.E.2d 864 (Commonwealth v. Acevedo) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Acevedo, 898 N.E.2d 864, 73 Mass. App. Ct. 453, 2009 Mass. App. LEXIS 4 (Mass. Ct. App. 2009).

Opinion

Graham, J.

After a jury-waived trial in Superior Court, the defendant was convicted of unarmed robbery in violation of G. L. c. 265, § 19(A). Prior to trial, the defendant filed a motion to suppress in which he argued that he was unlawfully stopped [454]*454and frisked on a street in Cambridge. The motion judge held a hearing on the defendant’s motion, but no transcript of that hearing exists due to a malfunction in the computer used by the court reporter present during the motion hearing.1 The motion judge denied the defendant’s motion in a written memorandum of decision. The sole basis of the defendant’s appeal is that the motion judge erred in denying his motion to suppress evidence. We affirm.

Facts. The motion judge’s findings may be summarized as follows. On December 1, 2003, at approximately 3:50 p.m., Detective Stephen Lyons of the Cambridge police department responded to a call regarding an armed robbery on Brookline Street in Cambridge. The victim described his assailants as two black males, one “heavier than the other,” wearing “a black Raiders jacket with a hat under a hat[,] and the other [wearing] white Converse sneakers.” The assailant in the Raiders jacket was reported as having a gun. The assailants were also said to be “fleeing” down Hamilton Street in the direction of Sidney Street.

Lyons, in plain clothes and driving an unmarked police cruiser, responded to the area of Hamilton and Sidney Streets, which is approximately three blocks from the scene of the robbery. As he drove around the area, Lyons observed two black males walking on Henry Street near the intersection with Sidney Street. The clothing worn by the pair “was bulky and different from that described except that one of the men was wearing Converse sneakers.”2 Neither man appeared to be wearing a Raiders jacket, but Lyons took particular note of the sneakers.

Detective Anthony Grassi was also driving in the area in an unmarked cruiser and, after speaking to Lyons via the police radio, pulled over and stopped his cruiser. The suspects crossed the street, and the detectives got out of their cruisers and ap[455]*455proached them. Lyons and Grassi identified themselves as police officers and told the suspects they were investigating an armed robbery in the area. The suspects denied involvement in any crime. Lyons asked if they would agree to a patfrisk, and the men consented. The frisk was uneventful, and no weapons were found on the pair. Lyons and Grassi detained the two men after being told that the victim was being brought to the scene. Four to five minutes later, the victim was brought to the scene by other officers, and he identified the suspects as the men who had committed the robbery. The suspects were both arrested and transported to the station for booking.

Noting that the question was close, the motion judge reasoned as follows. Although “[t]he description of the perpetrators of the armed robbery was less than stellar in its details . . . , that description in combination with other factors was sufficient to justify the stop in this case.” The suspects were “within three blocks of the crime scene minutes after [the detectives] receiv[ed] the report of the armed robbery. They were the only persons seen who generally fit the description given via the radio dispatch.”

Discussion. For purposes of reviewing a ruling on a suppression motion, we accept a judge’s subsidiary findings of fact absent clear error. See Commonwealth v. Sanna, 424 Mass. 92, 97 (1997); Commonwealth v. Williams, 46 Mass. App. Ct. 181, 182 (1999); Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 639 n.3 (2001). “The weight and credibility to be given testimony is for the judge.” Commonwealth v. Gentile, 437 Mass. 569, 573 (2002). In assessing credibility, the judge has wide discretion to accept all, some, or none of a witness’s testimony offered at a suppression hearing. See Commonwealth v. Scott, 52 Mass. App. Ct. 486, 491 (2001).

While we accept the motion judge’s subsidiary findings of fact absent clear error, we review independently her ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). “Our duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Vesna San, 63 Mass. App. Ct. 189, 190 (2005), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). See Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

[456]*456We begin our analysis by considering whether Lyons and Grassi had a legally sufficient basis for stopping the defendant. We are guided by the following constitutional principles. “[A] police officer may stop an individual and conduct a threshold inquiry if the officer reasonably suspects that such individual has committed, is committing, or is about to commit a crime. To qualify as ‘reasonable,’ the officer’s suspicion ‘must be based on specific, articulable facts and reasonable inferences drawn therefrom.’ The standard is objective: ‘would the facts available to the officer at the moment of the seizure or the search “warrant a [person] of reasonable caution in the belief” that the action taken was appropriate?’ ” Ibid, (citations omitted). See Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 51 (2000). A “hunch” or “good faith” on the part of the police cannot meet this constitutional standard. See Commonwealth v. Lyons, 409 Mass. 16, 19 (1990); Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).

The motion judge was correct in her determination as to when a stop of the defendant in the constitutional sense, i.e., a seizure, occurred. When the police first approached the defendant they did so by way of a field encounter, which is not a constitutional stop. See Commonwealth v. Stoute, 422 Mass. 782, 785-789 (1996). “[Ojfficers may make inquiry of anyone they wish and knock on any door, so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries.” Commonwealth v. Murdough, 428 Mass. 760, 763 (1999). The detectives in this case informed the defendant and his companion that they were investigating an armed robbery and asked them whether they would agree to a patfrisk. Both consented to the patfrisk. A stop for purposes of art. 14 of the Declaration of Rights of the Massachusetts Constitution occurred when the suspects were frisked and continued when Lyons declared his intent to detain them until the victim arrived and had a chance to view them. The issue, therefore, is whether, at that point of constitutional moment, the detectives had an objective factual basis for concluding that the suspects had engaged in criminal activity. In so doing, we do not examine each fact known to the detectives at the time of the stop in isolation; instead we view the “facts and inferences underlying [457]*457the officer’s suspicion ... as a whole when assessing the reasonableness of his acts.” Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).

We agree with the motion judge that the case is a close one, and is factually similar but distinguishable from the facts in Commonwealth v. Cheek, 413 Mass. 492 (1992). In Cheek,

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Bluebook (online)
898 N.E.2d 864, 73 Mass. App. Ct. 453, 2009 Mass. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-acevedo-massappct-2009.