Opinion
No. 15–P–15 No. 15–P–16 No. 15–P–18.
05-12-2016
COMMONWEALTH v. Bronnie MARINEZ (and twenty-nine companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Bronnie Marinez, LaLance Smith, and Morris Parson, were indicted on charges of home invasion, armed robbery, armed assault in a dwelling, and various firearm offenses. They subsequently filed motions to suppress evidence obtained as a result of a motor vehicle stop and search. Following an evidentiary hearing, a judge of the Superior Court denied the motions. Before us are the defendants' interlocutory appeals. We affirm.
A fourth defendant, Zacquel Wisse, also pursued an interlocutory appeal from the judge's decision, but he withdrew it after briefing and before oral argument.
Facts. The judge's findings may be summarized as follows. On the evening of April 1, 2013, Boston police Officer John Moynihan was patrolling in an unmarked cruiser with his partner, Officer Walter Suprey, in the area of Talbot Avenue in the Dorchester section of Boston. Just before 10:00 P.M., they heard a radio call reporting a home invasion at 514 Talbot, not far from where they were located. The call described the suspects as three light-skinned black men with guns; one was shorter than the others, and at least one was wearing a skullcap. The call did not indicate whether the men remained at 514 Talbot or had left the building; nor did the call shed light on whether the men had a car or were traveling on foot.
Moynihan was the sole witness at the suppression hearing.
The officers drove to 514 Talbot, went by the front of the building and then circled around the back, past a park through which one might flee on foot if leaving from that address. They observed nothing notable. The officers then parked two blocks from 514 Talbot, at the intersection of Talbot and Brent Street, so they could observe both vehicular and passenger traffic. Shortly after arriving at that location, and only two minutes after the initial radio call, Moynihan noticed a four-door Dodge sedan traveling westerly on Talbot. As the Dodge passed in front of the unmarked cruiser, Moynihan saw that it was occupied by four black men, one of whom appeared to be shorter than the others. Moynihan also noticed that the Dodge had out-of-State license plates, which, based on his training and experience, he believed to be an indicator that the vehicle was a rental car. Moynihan knew that rental cars sometimes were used in connection with violent crimes in Boston.
The judge noted, however, that he could not find, based on a preponderance of the evidence, that either Moynihan or Suprey had run the license plates of the Dodge and confirmed that the car was a rental vehicle before they effectuated the stop.
After following the Dodge for three blocks without observing any traffic violations, Moynihan pulled it over. He approached the driver's side, while Suprey approached the passenger's side. Officers in a marked cruiser observed the stop in progress and came over to assist. Moynihan asked the driver, later identified as defendant Parson, for his license and registration. Parson did not appear nervous, and provided his license and a car rental agreement. Moynihan asked what they were doing in the area, and Parson responded that they had come from Providence to meet his cousin and were going to a club. Moynihan noticed that the four men were wearing sweatpants, rather than club attire.
After obtaining identifying information from all four occupants, Moynihan went back to his cruiser where he determined that neither Parson nor any of the other occupants was listed as an authorized operator of the rented Dodge, and that the vehicle could not be operated by or turned over to any of them. Pursuant to the Boston police department's motor vehicle inventory search policy, Moynihan decided to have the vehicle towed and to search it before it was taken away. The officers asked the men to exit the vehicle and stay on the sidewalk, which they did. The officers then conducted an inventory search of the passenger compartment and the trunk, quickly locating firearms and a gray knit cap. Upon seeing the firearms, the police decided to place all four men under arrest. Parson began to run, but he was apprehended and placed under arrest with the others.
The policy was admitted in evidence at the suppression hearing.
Discussion. We review the judge's decision under familiar standards. “We accept the judge's subsidiary findings of fact absent clear error, ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 344 (2010), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
1. Reliability of radio call. Defendant Parson makes the threshold argument that the information given to the officers via the police radio call lacked adequate indicia of reliability. As this argument was not made below, and the motion judge had no opportunity to address it, it is waived. See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 2–9, at 2–21 (2016). In any event, even if we were to consider the point, it is without merit. The computer-aided dispatch (CAD) sheet, which was introduced in evidence during Moynihan's testimony, supplied sufficient evidence to establish the source's basis of knowledge and veracity.
In a footnote to his brief, Marinez alludes to the Commonwealth's obligation to present evidence of the call's reliability, but makes no contentions rising to the level of appellate argument on this issue. See Commonwealth v. Springfield Terminal Ry. Co., 80 Mass.App.Ct. 22, 42 n. 32 (2011). See also Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The CAD sheet attributed the call to apartment 1 at 514 Talbot Avenue, it identified a specific telephone number from which the call was placed, and it listed the caller as Rodney Davis. The CAD sheet also tracked statements made to the police operator by a female victim, including her description of the three men who “came into her house” with “twist ties,” and “told her to lay down.” Even assuming, as Parson does, that “Rodney Davis” and the female victim were not one and the same, it is evident that the source of the information conveyed by the radio call was a crime victim who resided at the premises and who had firsthand knowledge and a traceable identity. See generally Commonwealth v. Depiero, 473 Mass. 450, 454–456 (2016).
2. The stop. An investigatory stop of a motor vehicle is justified when police have a “reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom,” that a vehicle occupant has committed, or is about to commit a crime. Commonwealth v. Haskell, 438 Mass. 790, 793 (2003) (citation omitted). Here, all three defendants contend, as they did below, that the stop was unlawful because the information possessed by the police was insufficient to give rise to reasonable suspicion that the defendants were engaged in criminal activity.
While viewing this as a “close question,” the judge concluded that the following factors, in the aggregate, demonstrated that Moynihan had reasonable, articulable suspicion for the stop. The radio call had alerted him to a report of an armed home invasion at 514 Talbot. After receiving the radio call, he observed the front of the building, circled the block behind it where intruders might flee on foot, and saw nothing out of the ordinary. Only two minutes after receiving the radio call, he saw the Dodge traveling in front of him from the direction of 514 Talbot, a mere two blocks from that address. The radio call had identified the home invaders as three light-skinned black males with guns, and Moynihan observed four black males in the Dodge. He also observed that a rear passenger in the Dodge appeared to be shorter than the other occupants, consistent with the description in the radio call. Finally, Moynihan's suspicion was heightened by his belief (based on the out-of-State plates) that the vehicle was a rental car.
Moynihan testified that one of the reasons his attention was drawn to the vehicle was that it had out-of-State plates. Although the judge expressly did not find that Moynihan or Suprey ran the plate before stopping the vehicle, the judge nonetheless credited that Moynihan believed it was a rental car, and that Moynihan knew that rental cars were associated with criminal activity. Contrary to the defendants' suggestions, the judge's findings in this regard are not clearly erroneous.
We agree with the judge's analysis and consider Commonwealth v. Ancrum, 65 Mass.App.Ct. 647 (2006), to be particularly instructive. In Ancrum, a shooting had occurred, a radio broadcast describing a car and its occupants was issued, and police officers stopped a car that matched that description closely, but not completely. Id. at 648–649. This court held that “[t]he differences in descriptions of the car and the occupants are not significant. It is ‘inappropriate to assume [that reasonable suspicion] cannot exist absent a full match-up of all parts of the description.’ “ Id. at 653, quoting from Commonwealth v. Emuakpor, 57 Mass.App.Ct. 192, 198 (2003).
Likewise, in the present case, even though the officers did not know whether the suspects were fleeing in a car, and even though the number of passengers exceeded by one the number of men reported in the radio call, the totality of the circumstances identified by the judge gave rise to reasonable suspicion. See Commonwealth v. –llen, 62 Mass.App.Ct. 390, 395 (2004) (existence of reasonable suspicion is determined by “analysis of full context”). It was reasonable for the officers to assume that the three intruders could have fled in a car, and that the fourth man, not described in the call, was the get-away driver. See Emuakpor, supra at 197 (“no great leap of faith is required to know that visible robbers sometimes act with invisible cohorts”). The fact that the men were reported to be armed also added “an edge” to the calculus. Ancrum, supra at 654, quoting from Commonwealth v. Doocey, 56 Mass.App.Ct. 550, 557 (2002). See Commonwealth% v. McKoy, 83 Mass.App.Ct. 309, 312 (2013).
2. Inventory search and exit order. On appeal, the defendants do not challenge the lawfulness of impounding the vehicle, which had been stopped on the street and lacked an authorized driver. See and compare Commonwealth v. Olivera, 474 Mass. 10, 14–16 (2016). Their position is that lawful impoundment is not dispositive of the validity of a subsequent inventory search and that here the search had an impermissible investigatory purpose and was transformed into a search for evidence of a suspected crime. Although this point was argued below, the judge did not so find; instead, he determined that the police permissibly conducted an inventory search incidental to the vehicle being secured. We defer to his assessment of the evidence.
The defendants no longer contend, as they did at the suppression hearing, that the police should have secured the vehicle by locking it at the side of the road rather than having it towed. The judge rejected that argument, noting that even if that had been done, the Boston police department's inventory search policy still would have required that a search be conducted “to discover valuable property” within the passenger compartment or any locked compartments, including trunks, which the officers could access with keys in their possession or an automatic opening device.
The argument was based upon an answer given by Moynihan on cross-examination, which conflicted with his other testimony, and the Commonwealth's failure to introduce a form listing the items found.
Contrary to an additional argument made by defendant Marinez, the exit order and request to stand on the sidewalk were justified in order to enable the police to perform the search. See Commonwealth v. Young, 78 Mass.App.Ct. 548, 552 (2011) (police not required to conduct search incident to arrest of driver with passengers in vehicle). Likewise, the brief detention of the occupants was a reasonable continuation of the threshold inquiry. Compare Commonwealth v. Anderson, 461 Mass. 616, 626 (2012) (detaining occupants for showup identification).
Defendant Parson makes a final argument that statements he made after being arrested should be suppressed as fruit of the unlawful stop and search. As we have concluded that the stop and search were not unlawful, the argument needs no discussion.
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Orders denying motions to suppress affirmed.