Commonwealth v. Gomes

903 N.E.2d 567, 453 Mass. 506, 2009 Mass. LEXIS 53
CourtMassachusetts Supreme Judicial Court
DecidedApril 2, 2009
StatusPublished
Cited by70 cases

This text of 903 N.E.2d 567 (Commonwealth v. Gomes) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gomes, 903 N.E.2d 567, 453 Mass. 506, 2009 Mass. LEXIS 53 (Mass. 2009).

Opinions

Spina, J.

The defendant was indicted by a Suffolk County grand jury on one charge of possession of a class B controlled substance (cocaine) with intent to distribute, second offense, in [507]*507violation of G. L. c. 94C, § 32A (c) and (d), and one charge of possession with intent to distribute in a school zone, in violation of G. L. c. 94C, § 32J. He filed a motion to suppress the evidence seized from his person on the grounds that he was unlawfully stopped and searched without a warrant in violation of the Fourth and Fourteenth Amendments to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G. L. c. 276.1 After an evidentiary hearing, a judge in the Superior Court denied the motion. Following a jury trial, the defendant was convicted on both indictments. He appealed, and we transferred the case from the Appeals Court on our own motion. The defendant claims, among other issues that we need not reach, that his motion to suppress should have been allowed because the police seized him without reasonable suspicion of criminal activity and pat frisked him without reason to believe that he was armed and dangerous. For the reasons that follow, we now reverse.2

We summarize the facts as found by the motion judge, supplemented by uncontested testimony from the suppression hearing. See Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007). We do not rely on any facts subsequently developed at trial. See Commonwealth v. Deramo, 436 Mass. 40, 43 (2002).

On December 17, 2005, at around 4 a.m., Boston police Officer Greg Walsh was on patrol in a marked cruiser in the vicinity of Tremont and Stuart Streets in downtown Boston. He was familiar with the area as one where he had made several hundred arrests for drug-related offenses and where there had been numerous shootings, including several involving police officers. On this night, Officer Walsh was working with two [508]*508other members of the drug control unit, Detective Guy and Officer Hynes, who were together in another marked cruiser. The three officers, all of whom were in uniform, were driving slowly and watching for possible illicit activities.

At the intersection of Tremont and Stuart Streets, in the heart of the theater district, the police cruisers made a left turn onto Stuart Street, traveling for a short distance on the wrong side of the road. The defendant and Dennis Bates were standing together in the doorway of a building at 71 Stuart Street. Officer Walsh was familiar with the defendant because his booking photograph was posted on a bulletin board in the police station, identifying him as an “impact player” in the Grove Hall area of the Dor-chester section of Boston.3 The photograph included information about the defendant’s arrest on July 12, 2004, for possession of a controlled substance with intent to distribute.

Officer Walsh observed the defendant and Bates engaging in what appeared to be a drug transaction. The defendant was standing in the doorway with his right hand opened flat as if displaying some object or items to Bates, which Officer Walsh could not see. The police cruisers stopped, the officers left their vehicles, and they started to approach the defendant. As they did so, Officer Walsh saw the defendant put his right hand up to his mouth and appear to swallow something. Officer Walsh asked the defendant what he was doing there, and he immediately conducted a patfnsk for weapons. While the defendant was being patted down, a clear plastic bag containing five individually packaged rocks of “crack” cocaine slid out of his pant leg and onto the ground. Officer Walsh arrested the defendant and transported him to the police station for booking. Bates was also pat frisked, checked for outstanding warrants, and then released. During a more thorough search of the defendant at the police station, officers found additional evidence that was indicative of drug dealing.4

When reviewing the denial of a suppression motion, “we [509]*509accept the judge’s subsidiary findings of fact absent clear error, but conduct an independent review of the judge’s ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007). “[Ojur 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. Mercado, 422 Mass. 367, 369 (1996). We defer to the motion judge regarding the weight and credibility of the testimony presented at the suppression hearing. See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases cited. The Commonwealth bears the burden of demonstrating that the actions of the police officers in stopping and frisking the defendant were within constitutional limits. See Commonwealth v. DePeiza, supra at 369.

The defendant contends that his motion to suppress should have been allowed because Officer Walsh’s observation of one person holding out his hand to display an unidentified object to another person does not provide the police with the requisite reasonable suspicion of criminal activity to justify a threshold inquiry under Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The defendant points out that the police did not observe anything exchanged between the two men and did not see the object that the defendant was holding. Further, he continues, the officers’ generalized references to guns in the city, without any nexus to the defendant, did not give rise to reasonable concerns for their safety that would justify a patfrisk. Consequently, the defendant claims that the cocaine found at the scene should have been suppressed, as should the cocaine found on his person at the police station because it was “fruit of the poisonous tree.”

“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. Wilson, 441 Mass. 390, 393-394 (2004), quoting Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Both inquiries relate to the reasonableness of the police officer’s conduct under the Fourth [510]*510Amendment and art. 14. See Commonwealth v. Wilson, supra at 394; Commonwealth v. Torres, 433 Mass. 669, 672 (2001).

Before considering whether the officers’ actions in stopping the defendant were constitutionally permissible, we first identify the moment when the seizure occurred. Not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification. See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). A person is seized by the police only when, in light of the surrounding circumstances, a reasonable person in the situation would not feel free to leave. See id. at 786 (adopting “free to leave” standard of United States v. Mendenhall, 446 U.S. 544, 554 [1980], for purposes of art. 14). See also California v. Hodari D., 499 U.S. 621

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Luis Morales
Massachusetts Appeals Court, 2025
Commonwealth v. Luis Jose Romero
Massachusetts Superior Court, 2025
Commonwealth v. Iram Allen
Massachusetts Superior Court, 2025
Commonwealth v. Lorenzo Jones.
Massachusetts Appeals Court, 2025
Commonwealth v. Jeiffry Rosario
Massachusetts Superior Court, 2025
Commonwealth v. Malik Cannon.
Massachusetts Appeals Court, 2024
Commonwealth v. Jorge Colon.
Massachusetts Appeals Court, 2024
Commonwealth v. Lorne D. Dyson.
Massachusetts Appeals Court, 2023
Commonwealth v. Powell
Massachusetts Appeals Court, 2023
Commonwealth v. Rainer Mora-Polanco
Massachusetts Superior Court, 2023
Commonwealth v. Privette
Massachusetts Supreme Judicial Court, 2023
COMMONWEALTH v. ELIJAH JUDGE.
100 Mass. App. Ct. 817 (Massachusetts Appeals Court, 2022)
Commonwealth v. Kearse
Massachusetts Appeals Court, 2020
Gunter v. Cicero
D. Massachusetts, 2019
Commonwealth v. Darosa
118 N.E.3d 131 (Massachusetts Appeals Court, 2019)
Commonwealth v. Barreto
113 N.E.3d 429 (Massachusetts Appeals Court, 2018)
Commonwealth v. Resende
113 N.E.3d 347 (Massachusetts Appeals Court, 2018)
Commonwealth v. Cuoco
110 N.E.3d 1220 (Massachusetts Appeals Court, 2018)
Commonwealth v. Rivera
104 N.E.3d 683 (Massachusetts Appeals Court, 2018)
Commonwealth v. Harris
96 N.E.3d 729 (Massachusetts Appeals Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
903 N.E.2d 567, 453 Mass. 506, 2009 Mass. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gomes-mass-2009.