Commonwealth v. Joshua

4 Mass. L. Rptr. 640
CourtMassachusetts Superior Court
DecidedNovember 3, 1995
DocketNo. 94519
StatusPublished

This text of 4 Mass. L. Rptr. 640 (Commonwealth v. Joshua) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Joshua, 4 Mass. L. Rptr. 640 (Mass. Ct. App. 1995).

Opinion

Neel, J.

Defendant Alexander G. Joshua (“Joshua”) is charged with trafficking in cocaine. He moves, pursuant to Article 14 of the Massachusetts Declaration of Rights and the Fourteenth Amendment of the United States Constitution, to suppress all evidence obtained, whether tangible or intangible, as a result of a warrantless search of his car, and any evidence obtained as a result of the allegedly unlawful search and seizure. At the hearing on the motion, the Commonwealth presented the testimony of Detective Stanley J. Gedaminsky. For the reasons set forth below, the motion to suppress is allowed.

FINDINGS

On the basis of the credible testimony of Detective Gedaminsky and the inferences reasonably drawn therefrom, I find as follows.

Detective Gedaminsky has been with the Cambridge Police Department since June 1987, and with the Vice/Narcotics Unit since November 1989. On February 3, 1994, he began his shift at 4:00 p.m. At that time he and other officers were informed at the station by Detective Sergeant Michael Walsh that Joshua was a suspect in a reported unarmed robbery in Belmont the previous night. According to the report, received from Belmont police, the victim was a friend or girlfriend of Joshua, and had stated that Joshua had taken a gold chain from her neck. The victim was also reported to have stated that Joshua was driving a small blue car, and had a sawed-off shotgun, a police scanner tuned to the Cambridge police scanner frequency, and cocaine. None of those items was reported to have been involved in the robbery itself. Finally, Detective Sergeant Walsh reported that “he thought” that Belmont police were in the process of obtaining warrants for Joshua’s arrest.

At about 2:00 a.m. on February 4, 1994, toward the end of the same shift, Detective Gedaminsky and his partner, in plainclothes, were in their unmarked cruiser on patrol in the Central Square area of Cambridge. That area accounts for a disproportionate number of major drug arrests, particularly after dark. As they drove on Massachusetts Avenue, Detective Gedaminsky saw Joshua, whom he recognized from earlier drug arrests, leave a motor vehicle which was double parked on the other side of Massachusetts Avenue, in front of HiFi Pizza. After recognizing Joshua, who walked into the pizza shop, Detective Gedaminsky noticed that the vehicle was a small blue Oldsmobile.

Detective Gedaminsky called other units over the police radio, stated that he had spotted the defendant, and asked them to call Belmont police to determine whether any arrest warrants had issued for defendant. In the meantime, the detective and his partner continued to observe the blue Oldsmobile, turning their cruiser around and driving up behind it.

Less than a minute after he had entered the pizza shop, Joshua emerged cariying a slice of pizza on a plate and heading for the driver’s side of the blue car. Detective Gedaminsky and his partner, now a block or so behind Joshua’s vehicle, did not see any other police officers or cruisers, and were concerned that Joshua was about to drive away. They drove up and parked directly behind Joshua’s car. They did not see Joshua, a large man in a small car, make any particular movements. They had not at that time seen Joshua commit any crime, and thought only that he might be wanted by the Belmont police.

Detective Gedaminsky walked to the driver’s side of Joshua’s vehicle. As he reached the door, two uniformed police officers in a marked cruiser pulled up in front of Joshua’s car. At that time Detective Gedaminsky heard the Cambridge Police dispatcher’s voice come from within the Joshua car, and concluded that Joshua had a police scanner tuned to the Cambridge police radio frequency. The detective at that time believed that, with confirmation that Joshua had a scanner tuned to the Cambridge police frequency, Joshua may also have a shotgun or other weapon in the car.

Detective Gedaminsky asked Joshua and his passenger, Keith Moore, to step out of the car and to keep their hands in view. They complied, and the two detectives took Joshua and Moore to a position about two paces to the rear of Joshua’s car, where the two were pat-frisked. Police found no weapons. Joshua and Moore were cooperative, made no suspicious movements, and made no move to return to their car. By this time, a total of seven or eight uniformed officers had arrived at the scene. While he was being frisked behind his car, Joshua did not have access to the car. After the frisk, Detective Gedaminsky returned to Joshua’s car. Joshua remained in place, and did not try to re-enter it. At this time Detective Gedaminsky had not determined whether, while waiting to hear whether Belmont police had obtained a warrant for Joshua, he would place Joshua back in his car or not. [642]*642He thought that if Joshua were allowed to move, he would “probably” get back into his car.

The detective looked in the passenger side, saw no shotgun or other weapon, retrieved a Radio Shack police scanner from the inside, then went to the driver’s side. There he swept his hand under the driver’s side seat in search of any gun or other weapon, and pulled out a brown paper bag of the type used to hold submarine sandwiches. He could see a large amount of plastic sticking out of the bag, and a knot in the plastic. On the floor in front of the driver’s seat he saw cellophane wrap in a ball, paper, and a cup.

Detective Gedaminsky believed at this time that the brown bag contained cocaine, based on his knowledge of the way the drug is packaged. He removed from the brown bag a plastic bag in which were two large rocks of what turned out to be cocaine. Joshua and Moore were then arrested. At no time did Detective Gedaminsky ever learn whether a warrant had been issued by Belmont police for Joshua. No shotgun was found in a subsequent search of the trunk of Joshua’s car.

DISCUSSION

Defendant characterizes the initial police encounter with defendant as an arrest, and claims that the police did not have probable cause to arrest him at the time of the encounter. The Commonwealth admits that there was a seizure of the defendant followed by a search, but characterizes the encounter as a stop pursuant to a threshold inquiry and does not claim that the police had probable cause for an arrest.

The court will first determine whether there was sufficient justification for the police to stop defendant, and will then consider whether the encounter was a stop, rather than an arrest. See Commonwealth v. Willis, 415 Mass. 814, 817-18 (1993) (similar analysis where no claim of probable cause). If the encounter amounted to an arrest without probable cause, then the results of the search of the car would be suppressed even if a protective search would have been justified based on reasonable suspicion. See Commonwealth v. Bottari, 395 Mass. 777, 782, 785 (1985). If the encounter was a threshold inquiry, as the Commonwealth claims, then the remaining issue is whether the subsequent search of the car was reasonable under the circumstances.1

A. JUSTIFICATION FOR STOPPING DEFENDANT

Police may stop a suspect in order to conduct a threshold inquiry if they have a reasonable suspicion, based on specific, articulable facts, that the defendant had committed, was committing, or was about to commit a crime. Willis, 415 Mass. at 817. If the police conduct a stop based on an informant’s tip, the tip’s reliability will be judged in terms of the informant’s reliability and his or her basis of knowledge, id. at 818.

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Bluebook (online)
4 Mass. L. Rptr. 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-joshua-masssuperct-1995.