Commonwealth v. Dedominicis

42 Mass. App. Ct. 76
CourtMassachusetts Appeals Court
DecidedJanuary 22, 1997
DocketNo. 96-P-351
StatusPublished
Cited by7 cases

This text of 42 Mass. App. Ct. 76 (Commonwealth v. Dedominicis) 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. Dedominicis, 42 Mass. App. Ct. 76 (Mass. Ct. App. 1997).

Opinion

Dreben, J.

This is an appeal by the Commonwealth from the allowance of the defendant’s motion to suppress more than 200 five-dollar bills found in the course of a pat-frisk of the defendant. The motion judge found that the police officer reasonably was in apprehension of danger sufficient to make a pat frisk, but, based on the judge’s own “feel” of the wad of money taken from the defendant, concluded that the officer was not constitutionally permitted to examine what the defendant had concealed in his pants pocket. We reverse.

The following facts were found by the motion judge. After [77]*77a robbery of a Malden supermarket by masked intruders, Officer James O’Brien received a radio transmission that three suspects were heading toward Lodgen Court and that at least one of them was armed. Arriving at Lodgen Court in his cruiser, O’Brien saw a man, subsequently identified as the defendant, walking in one direction and then in the other. Despite the mildness of the weather, he was sweating profusely, appeared nervous, and, when asked by O’Brien what he was doing, gave an explanation which did not accord with the geography of the neighborhood. O’Brien suspected that the defendant had participated in the robbery, and, seeing a bulge in the defendant’s pants, was reasonably concerned for his own safety. Shrubbery prevented O’Brien from seeing whether any other persons were on the street, he knew that at least three people had been involved in the robbery, and he knew that one of them had a weapon. O’Brien was justified, the judge ruled, in making a Terry stop (Terry v. Ohio, 392 U.S. 1 [1968]) and in conducting a pat-frisk of the defendant. The defendant does not contend otherwise.

The additional inquiry required in stop and frisk cases, see Commonwealth v. Mercado, 422 Mass. 367, 369, 371-372 (1996), is whether the scope of the search was within constitutional limits. While patting down the defendant, O’Brien felt an object which he characterized as “hard.”1 He then inserted his thumb in the defendant’s pocket, stretching it open to ascertain its contents. Recognizing the object to be a wad of bills, O’Brien called for a backup and a witness to the robbery. After a representative from the store stated that the defendant had the same build as the robber and that the money taken was mostly ones and fives, O’Brien concluded that the bills were the proceeds of the robbery and arrested the defendant. He then took the money out of the defendant’s pocket and saw that it was a stack of 200 five-dollar bills, folded over.

At the hearing on the motion to suppress, after O’Brien, on cross-examination at defense counsel’s request, was asked to put the wad of bills in the defendant’s pocket, the judge, at counsel’s request, also felt the money. In his written findings allowing the motion to suppress, the judge stated:

[78]*78“In the area of the right front pocket, O’Brien ran his hand over the bulge. Although he characterized it as ‘hard’, I do not credit the testimony. I find that the bulge was not hard, and was in any event palpably not a weapon. In making this finding, I have in mind that at the request of counsel, the contents of Defendant’s pocket at the time of the frisk were placed in the pocket of the clothes he was wearing during the hearing on this motion, and I was asked to run my hand over the outside of the pocket, the same way O’Brien did. Although one could not tell exactly what the contents were, they were unmistakably softer than a pistol, revolver, knife, blackjack, or anything else that a reasonable person would believe to be a weapon or source of potential bodily harm.”

The judge went on to conclude that “[ojnce O’Brien knew or reasonably should have known that he was feeling something other than a weapon, any justification for intrusion into the pocket ended.” Commonwealth v. Ferguson, 410 Mass. 611, 614-615 (1991). See 4 LaFave, Search & Seizure § 9.5(c) (3d ed. 1996).

The Commonwealth argues that the judge erred because he based his finding on his own “frisk” under circumstances which were distinguishable from the actual pat-down of the defendant conducted by the officer.

The credibility of Officer O’Brien is not at issue in this case. Although the judge stated that he did not “credit the testimony” that the bulge when felt was “hard,” a reading of the transcript of the hearing on the motion to suppress shows that the judge did not mean that he thought O’Brien was not truthful. To the contrary, on two separate occasions the judge referred to O’Brien’s testimony as truthful and went so far as to point out that “Officer O’Brien was very, very candid, and I want to put that right on the record now, that is going to be part of my finding. He was a very candid, and honest, and truthful witness.”2

Having found the officer credible, the judge was not war[79]*79ranted in considering his own “feel” of the wad of money in the defendant’s pocket to counter the other evidence before him. Although there was no objection by the Commonwealth, we conclude that the judge should, on his own, have refused the defendant’s request that he feel the bills. Cf. Schaffner v. Chicago & N.W. Transp. Co., 129 Ill;. 2d 1, 29 (1989). The question to-be decided was whether the search for a weapon was reasonable in the circumstances confronting the officer in the field, Terry v. Ohio, 392 U.S at 27, Commonwealth v. Robbins, 407 Mass. 147, 151 (1990), not those facing the judge in the tranquility of the courtroom. Wholly apart from the fact that the judge knew beforehand that the bulge was a bundle of bills, and apart from questions such as whether the defendant was standing in the same position, or whether the difference in his clothing and depth of his pockets caused the wad to rest against a different part of his body (bone or flesh) or whether the money had been separated (as stolen, it was in tight wads), two important considerations were absent from the judge’s courtroom examination. First, to all the facts confronting him O’Brien was entitled to apply his nineteen years of police experience, Commonwealth v. Johnson, 413 Mass. 598, 601 (1992), and second, he “had no more than a few seconds in which to assess the extent, if any, of the danger, and to ascertain the most effective and least intrusive means of protecting himself.” Ibid, quoting from Commonwealth v. Summerlin, 393 Mass. 127, 129-130 (1984), cert, denied, 469 U.S. 1193 (1985).

Not only were the conditions of the pat-down significantly different in the courtroom than in the field,3 but, perhaps even more important, the use of the fact finder in a demonstration of evidence poses a serious problem. It “may have the effect of converting the participant into a witness for the party conducting the test.” Schaffner v. Chicago & N.W. Transp. Co., 129 Ill. 2d at 30. As pointed out in that case where a juror took part in a demonstration, “The juror may acquire knowledge that is not directly available to the other [80]*80jurors, and opposing counsel is unable to cross-examine him on his experience. These concerns militate against the involvement of jurors in evidentiary demonstrations.” (Emphasis supplied.) Ibid. We consider that permitting the judge to participate in a demonstration where he is the.

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Bluebook (online)
42 Mass. App. Ct. 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dedominicis-massappct-1997.