Commonwealth v. Smith

772 N.E.2d 1084, 55 Mass. App. Ct. 569, 2002 Mass. App. LEXIS 1055
CourtMassachusetts Appeals Court
DecidedAugust 9, 2002
DocketNo. 01-P-158
StatusPublished
Cited by15 cases

This text of 772 N.E.2d 1084 (Commonwealth v. Smith) 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. Smith, 772 N.E.2d 1084, 55 Mass. App. Ct. 569, 2002 Mass. App. LEXIS 1055 (Mass. Ct. App. 2002).

Opinion

Mason, J.

On April 18, 2000, a complaint issued against the defendant from the District Court charging him with possession of a Class B controlled substance with intent to distribute in violation of G. L. c. 94C, § 32A; possession of a Class B [570]*570controlled substance with intent to distribute in a school zone in violation of G. L. c. 94C, § 32J; and resisting arrest in violation of G. L. c. 268, § 32B.1 Following a jury trial, the defendant was convicted of the lesser included offense of possession of a Class B controlled substance and resisting arrest.

On appeal, the defendant claims that the judge erred in denying his motion to suppress evidence seized from him without a warrant. He also claims that his motion for a required finding of not guilty on the charge of resisting arrest should have been allowed. We agree with these contentions and therefore reverse both convictions.

The suppression hearing. The sole witness at the suppression hearing was Officer Daniel Leonard of the Brockton police department, who was one of the arresting officers. We summarize the facts as found by the motion judge, supplemented by testimony of Officer Leonard that was uncontroverted and undisputed, and explicitly or implicitly credited by the motion judge. See Commonwealth v. Santiago, 410 Mass. 737, 738 n.2 (1991); Commonwealth v. Scott, 52 Mass. App. Ct. 486, 492 (2001), and cases cited. We are mindful that the judge’s subsidiary findings of fact are binding on us absent clear error, while his “findings of ultimate fact deriving from the subsidiary findings are open to reexamination ... as are [the judge’s] conclusions of law.” Commonwealth v. Barros, 435 Mass. 171, 174 n.5 (2001), quoting from Commonwealth v. Angivoni, 383 Mass. 30, 33 (1981).

On April 15, 2000, Officer Leonard was in uniform and on patrol on a mountain bicycle in a downtown area of Brockton, which he described as a high crime area. At approximately 1:13 p.m., Officer Leonard observed a young black male, later identified as the defendant, standing near a pizza shop on Legion Parkway near Warren Street. The defendant was straddling a “BMX” bicycle and talking to a white male, who appeared to be approximately forty-five years old, and also a white female, who appeared to be forty to forty-five years old.

After a brief conversation, the defendant made a hand gesture toward an auto repair shop named “George’s Garage” located [571]*571on a lot next to the pizza shop. Then, all three individuals proceeded to an alleyway next to the garage which had a row of parked cars on one side and a brick wall on the other. A sign stating “Private Property — No Trespassing” was posted on the brick wall.

Officer Leonard followed the three individuals into the alleyway and stopped a short distance away from them. The officer observed the white male place his hand into his pocket. Believing that some sort of drug transaction was about to occur, Officer Leonard identified himself as a police officer and asked the individuals what they were doing there. When none of the individuals responded, he told them to stop. The male and the female did so, but the defendant began riding his bicycle in Officer Leonard’s direction.

Officer Leonard told the defendant to stop three additional times as the defendant rode toward him. The officer placed his arm out to block the defendant’s path. The defendant and Officer Leonard collided, causing the defendant to be knocked to the ground. A struggle ensued between the defendant and Officer Leonard, during which a second officer, Scott Besarick, arrived and sprayed the defendant with pepper spray. Officer Be-sarick assisted in taking the defendant into custody.

During the struggle, the defendant began spitting up a white substance believed by the officers to be cocaine. Officer Leonard scraped up the substance and placed it in a package, and it later tested positive for cocaine.

The defendant was arrested for resisting arrest and taken to the police station to be booked. During an inventory search, the police found $235.00 in the defendant’s pocket.

1. Suppression issues. The judge denied the suppression motion, reasoning that the Commonwealth had sustained its burden of showing that Officer Leonard’s initial stop of the defendant was warranted because Officer Leonard had a reasonable suspicion that criminal activity was taking place between the defendant and the white male and female. See Commonwealth v. Silva, 366 Mass. 402, 405 (1974). In reaching this result, the judge relied on the nature of the area as a high crime area, the defendant’s action of directing the male and female to an alleyway away from the main street, and the male’s action of [572]*572placing his hand in his pocket immediately before Officer Leonard intervened.

The defendant contends that each of his actions was equally consistent with innocent activity and, hence, the actions did not provide the officer with reasonable suspicion sufficient to initiate a stop. He also contends that, even if the initial stop was lawful, its scope was not since it involved the use of excessive force. See Commonwealth v. Borges, 395 Mass. 788, 794 (1985). The Commonwealth, on the other hand, contends that Officer Leonard did not seize the defendant for constitutional purposes until after the defendant had ridden toward him on his bicycle and collided with him and that, at that time, Officer Leonard had a reasonable suspicion that the defendant was engaging in criminal activity.

We reject the Commonwealth’s contention that, for constitutional purposes, Officer Leonard did not seize the defendant until after the collision. Officer Leonard’s initial order to the defendant and to the man and woman who were with him to stop communicated “what a reasonable person would understand as a command that would be enforced by the police power,” and, hence, constituted a seizure of the defendant for constitutional purposes. Commonwealth v. Barros, 435 Mass. at 176. We note that the man and the woman in fact did stop in response to the officer’s order, indicating that they believed, as would any reasonable person, that they were not free to leave after Officer Leonard had ordered them to stop. Ibid.

We also conclude that, at the time he told everyone to stop, Officer Leonard did not have an objectively reasonable suspicion of criminal activity, based on specific and articulable facts, necessary to justify such a stop. Commonwealth v. Stoute, 422 Mass. 782, 789 (1996), citing Terry v. Ohio, 392 U.S. 1, 21 (1968). It is well settled that such a reasonable suspicion that criminal activity either was occurring or was about to occur “cannot be based on a hunch or on good faith.” Commonwealth v. Watson, 430 Mass. 725, 729 (2000). Moreover, “[jjust being in a high crime area is not enough to justify a stop.” Commonwealth v. Grandison, 433 Mass. 135, 139 (2001), citing Commonwealth v. Cheek, 413 Mass. 492, 496 (1992). Otherwise, citizens would be denied the protections of the Federal and [573]*573State Constitutions merely because they lived or worked in high crime areas. Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001).

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

Related

Commonwealth v. Cornelio L. Conley.
Massachusetts Appeals Court, 2026
Commonwealth v. Malik Cannon.
Massachusetts Appeals Court, 2024
Bertram v. Viglas
D. Massachusetts, 2020
Gunter v. Cicero
D. Massachusetts, 2019
Gunter v. Cicero
364 F. Supp. 3d 124 (District of Columbia, 2019)
Commonwealth v. Jones-Pannell
10 N.E.3d 639 (Massachusetts Appeals Court, 2014)
Commonwealth v. Portee
978 N.E.2d 1220 (Massachusetts Appeals Court, 2012)
Commonwealth v. Soun
969 N.E.2d 1156 (Massachusetts Appeals Court, 2012)
Commonwealth v. Quintos Q.
928 N.E.2d 320 (Massachusetts Supreme Judicial Court, 2010)
Commonwealth v. Vanya V.
914 N.E.2d 339 (Massachusetts Appeals Court, 2009)
Commonwealth v. Quintos Q.
903 N.E.2d 218 (Massachusetts Appeals Court, 2009)
Commonwealth v. Grant
880 N.E.2d 820 (Massachusetts Appeals Court, 2008)
Commonwealth v. Lender
847 N.E.2d 350 (Massachusetts Appeals Court, 2006)
Commonwealth v. Pagan
829 N.E.2d 1168 (Massachusetts Appeals Court, 2005)
Commonwealth v. Wade
17 Mass. L. Rptr. 93 (Massachusetts Superior Court, 2003)
Commonwealth v. Dasilva
775 N.E.2d 1269 (Massachusetts Appeals Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
772 N.E.2d 1084, 55 Mass. App. Ct. 569, 2002 Mass. App. LEXIS 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-massappct-2002.