Commonwealth v. Wilson

754 N.E.2d 113, 52 Mass. App. Ct. 411, 2001 Mass. App. LEXIS 839
CourtMassachusetts Appeals Court
DecidedAugust 29, 2001
DocketNo. 99-P-2175
StatusPublished
Cited by13 cases

This text of 754 N.E.2d 113 (Commonwealth v. Wilson) 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. Wilson, 754 N.E.2d 113, 52 Mass. App. Ct. 411, 2001 Mass. App. LEXIS 839 (Mass. Ct. App. 2001).

Opinion

Kafker, J.

As the police stopped the vehicle in which he was a passenger for a traffic violation, the defendant, Kareem Wilson, bolted from the car, clutching what was later revealed to be a bag of cocaine. He also had four baggies of marijuana in his pants pocket. He was indicted for (1) trafficking in cocaine of 200 or more grams; (2) committing a drug violation in a school zone; and (3) possessing marijuana with intent to distribute. A jury returned convictions on all three counts.

His appeal is fourfold. He argues that the judge committed error in (1) denying his motion to suppress the cocaine and marijuana evidence; (2) allowing at trial questions by the prosecutor regarding outstanding arrest warrants; (3) refusing to instruct the jury on simple cocaine possession; and (4) denying his motion for a required finding of not guilty on the charge of possessing marijuana with the intent to distribute. We affirm the convictions for trafficking in cocaine and committing a drug violation in a school zone and reverse the judge’s decision denying the defendant’s motion for a required finding of not guilty on so much of the marijuana indictment as charged him with the intent to distribute. We discuss each claim of error in turn, reciting facts necessary to resolve the issue raised.

1. Motion to suppress. The judge’s findings of fact on the motion to suppress may be summarized as follows. At about 3:30 a.m. Springfield police officers Elliot and Duda observed a car drive past them at an excessive rate of speed. The officers pursued the car, turning on their emergency lights. The vehicle rolled through a stop sign and stopped in the middle of an intersection in a high crime area. The driver and passenger side doors opened and the defendant, a passenger in the car, got out of the vehicle, looked to his right and to his left, and fled across [413]*413the street while clutching his chest as if holding something in his shirt. The driver shut his door and sped away in the car.

Officer Elliot left the cruiser and chased the defendant on foot, yelling at him to stop and show his hands. He observed the fleeing defendant toss a plastic bag onto the roof of a two-story building. The defendant was thereafter apprehended and arrested. An on-site search of the defendant by back up officers produced four baggies of marijuana from his pants pocket and a beeper. Officer Elliot retrieved the plastic bag from the roof top. The bag was eventually found to contain 244.41 grams of cocaine.

The defendant does not contest the validity of the vehicle stop, or the right of the police to conduct a threshold inquiry of the driver. See Commonwealth v. Torres, 424 Mass. 153, 157 (1997) ; Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 400 (1998) . He does argue, however, that the police lacked reasonable suspicion when they seized him.

Pursuant to Article 14 of the Declaration of Rights of the Massachusetts Constitution, a person is seized “when a police officer initiates a pursuit with the obvious intent of requiring the person to submit to questioning.” Commonwealth v. Stoute, 422 Mass. 782, 783 (1996). A pursuit of a vehicle for a traffic violation does not constitute, without more, pursuit of a passenger for these purposes. See generally Commonwealth v. Torres, 424 Mass. at 157 (“in the absence of his own individual misbehavior or suspicious conduct, [defendant passenger] could expect that the formalities involved in the traffic stop would take place solely between the driver and the trooper”). Moreover, as the motion judge correctly found, “No inquiry of defendant by the police or pursuit of him personally was attempted” before he fled. We conclude that the pursuit of the defendant began when the officer left the patrol car to chase him.

As reasonable suspicion of criminal activity was required when that pursuit began, Stoute, 422 Mass. at 789 (1996), we review the facts as they existed at that point to determine whether they provided the officers with reasonable suspicion.

The following facts were known by the police officers: (1) they were in a high crime area (2) at 3:30 a.m.; (3) a speeding car which they had stopped halted in the middle of the intersec[414]*414tion and the driver and passenger side doors both opened; (4) the defendant, a passenger, “suddenly bolted from the car, while holding his chest as if concealing something, . . . while looking around furtively.” We conclude that there was ample evidence to support the trial judge’s conclusion that the officers had reasonable suspicion of criminal activity when they began their pursuit of the defendant.

Each of the six factors above has been considered relevant in establishing reasonable suspicion. A “high crime area” has been described as a “relevant contextual consideration.” Commonwealth v. Riche, 50 Mass. App. Ct. 830, 834 (2001), quoting from Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The time of night is also a factor. See Commonwealth v. Thompson, 427 Mass. 729, 734 (1998). As to the third, fourth, and fifth factors, see Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (when automobile “suddenly” pulled over, the four doors flew open and one of the passengers fled with a backpack, “events suggested that the fleeing passenger may have had illicit goods”); Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 210 (1991) (weapons search was authorized when an erratically driven car stopped, both front doors swung open, and the driver and passenger jumped abruptly from it).1 “Uncommon movements,” and furtive gestures2 also have been found relevant, as has flight.3 “The conjunction of these factors” in this case created reasonable suspicion. See Riche, 50 Mass. App. Ct. at 834.

The defendant relies on Commonwealth v. Thibeau, 384 Mass. 762 (1981), to argue that his flight cannot be considered because [415]*415“flight in reaction to a show of police authority may not be considered to justify a subsequent stop.” The defendant’s reliance is misplaced. In Thibeau, pursuit of the defendant, based only on a hunch, preceded the flight and therefore “flight from the officer's pursuit [could not] be considered for [the] . . . purpose” of determining reasonable suspicion. See Commonwealth v. Thibeau, 384 Mass. at 764. See also Commonwealth v. Harkess, 35 Mass. App. Ct. 626, 630 (1993) (not to be counted [in determining reasonable suspicion in Thibeau] was an individual’s attempt to elude the police after they initiated pursuit based only on a hunch”). Thibeau, however, has been distinguished, and flight has been considered a relevant factor, where it has not been triggered by an inappropriate police action. See Commonwealth v. Sanchez, 403 Mass. 640, 645-646 (1988) (“Here [unlike in Thibeau], the defendant broke away before they pursued him, thus providing the police with a reasonable and articulable suspicion”); Commonwealth v. Marrero, 33 Mass. App. Ct. 440, 443 (1992) (flight “not prompted by any inappropriate police action” considered as a factor in establishing reasonable suspicion). See also Commonwealth v. Sweezey, 50 Mass. App. Ct.

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Bluebook (online)
754 N.E.2d 113, 52 Mass. App. Ct. 411, 2001 Mass. App. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wilson-massappct-2001.