Commonwealth v. Mathis

922 N.E.2d 816, 76 Mass. App. Ct. 366, 2010 Mass. App. LEXIS 233
Massachusetts Appeals Court·Decided March 2, 2010·No. No. 08-P-789·Published·Cited by 7 cases

Opinions

Grainger, J.

After a jury trial in the Dorchester Division of the Boston Municipal Court Department, the defendant was found guilty of possession of cocaine with intent to distribute, [367] G. L. c. 94C, § 32A; and committing the offense within a school zone, G. L. c. 94C, § 32J. The defendant asserts error in the denial of his motion to suppress evidence central to his convictions. Specifically, the defendant contends that the arresting officers (i) conducted an unlawful seizure in violation of his rights under art. 14 of the Massachusetts Declaration of Rights, and (ii) subjected him to custodial interrogation in violation of his Miranda rights.

Background. The facts are uncontested except in two incidental respects; in both of these the judge credited the defendant’s recollection. At approximately 10:30 p.m. on February 5, 2006, Boston police Officers Duran Edwards and Richard Sleamon1 were patrolling in an unmarked cruiser when they observed the defendant standing in front of a building bearing a “no trespassing” sign. The officers approached, identified themselves, and, while seated in their vehicle, asked the defendant the purpose for his presence; he replied that his mother lived in the building. The officers requested documentary identification2 and ran a warrant check on the defendant, which produced no results. If the officers received documentation, they returned it to the defendant at that point. During this exchange, the officers observed that the defendant was breathing heavily, stuttering, and “couldn’t get his words out right.” Officer Edwards then proceeded to ask the defendant if he had “anything on [him] I need to know about?”3 to which the defendant responded, “Yeah, I got a bag of weed on me.” It is undisputed that the defendant’s identification had been returned to him before this exchange took place. After the return of the identification, and then, after the defendant’s admission that he was committing a crime at that moment,4 the defendant [368] proceeded to place his hand in his pocket. The defendant was ordered by the officers to keep his hands in sight while they then asked him if he previously had been arrested, and also proceeded to question him in a general fashion.5

At this point, the officers emerged from their cruiser.6 The defendant, who now was avoiding eye contact, “looking down at the ground,” made several attempts to put his hands into his pockets. After instructing the defendant to remove his hands, Officer Edwards conducted a patfrisk of the defendant’s waist area. During the course of the frisk, several plastic vials containing “crack” cocaine fell from the defendant’s pockets.

Seizure of the defendant. The motion judge correctly ruled [369] that the officers did not seize the defendant when they first approached him and asked his identity in a “reasonable tone.” An officer’s conversational approach to an individual, absent a show of authority, does not rise to the level of a seizure under art. 14 of the Massachusetts Declaration of Rights. See, e.g., Commonwealth v. Thomas, 429 Mass. 403, 406 (1999); Commonwealth v. DePeiza, 449 Mass. 367, 370 (2007). The officers did not restrict the defendant’s freedom of movement, nor did they question the defendant in a hostile manner. Contrary to the defendant’s contention, the officers’ location — whether inside the cruiser or on the sidewalk — does not alter our conclusion. See DePeiza, supra at 369-370 (no seizure where officers left their vehicle and positioned themselves on either side of the defendant during questioning); Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782 (2005) (no seizure “by simply alighting from the police cruiser and approaching” defendant). Contrast Commonwealth v. Grandison, 433 Mass. 135, 138-139 (2001) (encounter became stop when officer not only emerged from cruiser but also commanded defendant to stop).

Even if the officers’ request for identification is characterized as more than a casual street encounter and therefore required justification, such justification was present here. As noted, supra, the officers’ request for identification served to test the defendant’s explanation for his presence in front of a “no trespassing” sign.7 Assuming the defendant provided documentation in addition to his oral statements, the officers’ continued retention of the identification after its use for a lawful purpose “implicitly command[ed] the defendant to remain on the scene.” Commonwealth v. Lyles, 453 Mass. 811, 815 (2009).8 Thus, while we agree with the motion judge that the defendant was seized at a later point in time when Officer Edwards conducted a patfrisk of his person, Lyles instructs that he also may have been seized during the [370] earlier time period while his documentation was retained by the police.

As stated, supra, and assuming the defendant provided the officers with identification in written form, it was returned to him after the warrant check was completed. Our cases dealing with investigatory stops recognize that there is some ambiguity inherent in many encounters between citizens and police officers. See Commonwealth v. Sykes, 449 Mass. 308, 311 (2007) (“The nature of an encounter between a citizen and a law enforcement official is necessarily fact specific and requires careful examination of the attending circumstances”); Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 172 (2001) (“[sjtreet encounters between citizens and police officers are incredibly rich in diversity . . . [which] yields the abundance of ‘highly fact-based questions’ ” [citations omitted]).

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Commonwealth v. Mathis, 922 N.E.2d 816, 76 Mass. App. Ct. 366, 2010 Mass. App. LEXIS 233 (Mass. Ct. App. 2010).

922 N.E.2d 816 (Commonwealth v. Mathis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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