Opinion
11-P-492
04-03-2012
COMMONWEALTH v. WAYNE MAYS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of the defendant's motion to suppress evidence recovered as a result of an unlawful search of the defendant's vehicle, and any statements made by him. The Commonwealth argues the police had the requisite reasonable suspicion to detain the defendant prior to the search, and the search executed thereafter was properly conducted pursuant to the defendant's valid consent. The defendant, in turn, contends that the search of the defendant's vehicle was improper as the Commonwealth lacked probable cause to justify seizing and detaining him during the period prior to obtaining consent. Specifically, the defendant argues that he was seized after Duxbury police Officer Steven Amado, who lawfully conducted an investigatory stop, directed the defendant to drive to a nearby parking lot, where he was ordered out of the car and handcuffed awaiting further investigation, including identification by the victim. In the alternative, the defendant asserts that even if the stop and the detention were lawful, (1) the police lacked valid consent to search the defendant's car as any consent constituted mere acquiescence, and moreover, (2) the showup identification procedure, whereby the victim identified the defendant as the perpetrator, was impermissibly suggestive and in violation of the defendant's right to due process. Because the record lacks findings of fact critical to issues necessary to resolve, we must vacate the decision.
The Commonwealth sought and obtained leave from a single justice of the Supreme Judicial Court for this interlocutory appeal.
While the defendant did not assert such an argument at the motion hearing, the judge nevertheless concluded that the defendant was effectively under arrest when the police officer, who stopped the defendant's vehicle because it (and he) matched a description of a vehicle and an individual suspected of breaking and entering which had been transmitted over the police broadcast, further instructed the defendant to drive to a nearby parking lot for questioning. As to the initial stop of the defendant's vehicle, it is undisputed that Duxbury police Officer Steven Amado had, at a minimum, reasonable suspicion to conduct an investigatory stop at the moment he observed the defendant driving on Route 3A. See Commonwealth v. Lopes, 455 Mass. 147, 153-155 (2009).
Discussion. The judge's decision to allow the motion to suppress appears to have been based upon the conclusion that the defendant was under arrest either at the instant the police directed him to the nearby parking lot, or when the defendant was handcuffed, because the judge appears to equate 'seizure' with 'custody' pursuant to an arrest. The Commonwealth contests this conclusion. To the extent that the judge's decision is based upon this conclusion, it is incorrect because the actions of the police up to and including that point in time were justified as a stop and detention based on reasonable suspicion rather than probable cause.
1. Reasonable suspicion to detain. An individual is ''seized' by a police officer 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 371-372 (2010), quoting from Commonwealth v. Rock, 429 Mas. 609, 611 (1999). Once seizure has occurred, '[t]he question that remains is whether [the police], at the time of seizure, had an objectively reasonable suspicion of criminal activity, based on specific and articulable facts.' Commonwealth v. Barros, 435 Mass. 171, 176 (2001).
A determination of reasonable suspicion is a two-pronged inquiry: 'first, whether it was permissible to initiate investigation and second, whether the scope of the seizure was justified by the situation.' Commonwealth v. Williams, 422 Mass. 111, 116 (1996). Indeed, there is no dispute, nor can there be, that the police had reasonable suspicion to initiate a Terry stop of the defendant when he first was observed by Officer Amado because he had heard a description sufficiently matching the defendant and his vehicle, which gave rise to reasonable suspicion that the defendant was involved in a recently attempted crime. See Commonwealth v. Barros, supra at 173; Commonwealth v. Lopes , 455 Mass. 147, 153-155 (2009).
Additionally, the judge cites to Lopes in holding that police had reasonable suspicion to stop the defendant's vehicle on Route 3A.
Moreover, it is well settled that the permissible scope of a Terry stop may include ordering a suspect from the place of the original stop to another location, for example, for reasons of identification or safety. See, e.g., Commonwealth v. Blais, 428 Mass. 294, 297 (1998); Commonwealth v. Montanez, 55 Mass. App. Ct. 132, 140-141 (2002). To the extent that the judge held that the defendant was seized for Terry purposes when instructed to pull off of the street, the police were warranted in doing so, as this further direction was justified and did not convert the stop into an arrest. Directing the defendant to operate his vehicle the short distance into the nearby parking lot did not amount to an arrest requiring probable cause; '[a]n expeditious collateral inquiry which might result in the suspect['s] arrest or prompt release is not unreasonable when done to meet 'the practical demands of effective criminal investigation and law enforcement." Williams, supra at 118, quoting from Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). The uncontroverted testimony of Officer Amado is that he expressly informed the defendant that he was merely a 'person in question,' and asked him to pull over to a safer location. As the original stop took place in a construction area that harbored an altered flow of traffic, it was a reasonable extension of the detention, and not an arrest, for Officer Amado to have directed the defendant to another location to continue the threshold inquiry for which probable cause to arrest was unnecessary.
2. Handcuffing as detention or arrest. The defendant also contended below, and the judge agreed, that the defendant was arrested when he was ordered out of the vehicle and handcuffed. The issue, specifically, is whether the physical restraint of the defendant with handcuffs, while awaiting the victim's arrival for a showup identification, elevated the detention to an arrest.
In contrast to the necessary foundation for a proper threshold inquiry, when an arrest is effectuated, requiring the higher standard of probable cause, 'there must be (1) 'an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained." Commonwealth v. Cook, 419 Mass. 192, 198 (1994), quoting from Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev'd on other grounds, 463 U.S. 239 (1983). We recognize that an encounter with a suspect may amount to an arrest, rather than a stop, even if the police do not intend to effectuate a formal arrest. Commonwealth v. Sanderson, 398 Mass. 761, 765-767 (1986) (presence of six State troopers, one canine, and complete immobility of suspect's vehicle constitutes an arrest). Conversely, it appears also to be well settled that police subjectively believing they are converging on a defendant to make an arrest does not necessarily convert a stop into an arrest. See Commonwealth v. Hall, 50 Mass. App. Ct. 208, 210-211 (2000).
The judge ruled, per se, that the subsequent seizure involving the use of restraints amounts to an arrest, apparently without having considered legal authorities suggestive that the use of handcuffs is not conclusive on the issue, but rather, the issue is fact dependent. See, e.g., Williams, supra at 118-119 ('It is not dispositive that the defendant was handcuffed'; such an act does not automatically transform 'stop' into 'arrest'). Restricting the movement of a suspect by the use of handcuffs, in order to secure the suspect for a showup identification, may be reasonable to effectuate the goal of identification. See Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 826-827 (1999). 'The resolution of this question depends on the particular facts of the case.' Williams, supra at 118. Given the circumstances in which Officer Amado stopped the defendant, there is a question, yet unanswered, whether the temporary use of handcuffs was commensurate with the suspicion surrounding a recently reported attempt to break and enter a home. As noted in Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), '[t]he issue is one of proportion.' Here, the defendant was placed in handcuffs for a brief period of five to ten minutes while waiting for the victim to identify a potential suspect. Where the attempted crime had occurred a short time earlier, the restriction of the defendant's movement may have been proper to respond to the ongoing criminal investigation. See Commonwealth v. Salerno, 356 Mass. 642, 646 (1970); Commonwealth v. Vazquez, 74 Mass. App. Ct. 920, 923 (2009). Additional questions necessarily arise as to the impact, if any, of facts showing whether the police intended to effectuate an arrest at that time or whether the defendant reasonably could have believed that this action signified an arrest. Without a record that shows a discriminating examination of the facts, we are unable to conclude whether the detention and the restraint of the defendant by handcuffs prior to being identified by the victim amounted to an arrest.
That Miranda warnings were given to the defendant prior to the showup identification is not dispositive on the issue of whether the police improperly exceeded the scope of a lawful, threshold inquiry. Miranda warnings may be necessary during a Terry stop where the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere. See Commonwealth v. Gordon, supra at 827.
3. Consent to search. The defendant also contended below that the search of his vehicle was improper, specifically contending that consent was not voluntarily given to the search of his vehicle. Rather, being then handcuffed and out of his vehicle, the defendant contends that any affirmation amounted, at most, to an acquiescence to the presence and authority of multiple officers. However, because the judge's analysis concluded when she determined the need for and lack of probable cause to make an arrest of the defendant prior to the request by police for his consent to search, the record likewise lacks factual findings and conclusions as to the validity of the defendant's consent. We are, thus, unable to review this issue. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-339 (2007).
We do not reach the issue raised for the first time here of whether the showup identification procedure utilized by the police at the scene of the threshold inquiry was impermissibly suggestive. We note that the defendant filed a motion for clarification as to whether the identification of the defendant also was suppressed, to which the judge noted affirmatively that she had done so; however, the record strongly suggests that she did so as a fruit of the poisonous tree and not because of unnecessary suggestiveness, as no such findings were made.
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We therefore vacate the order allowing the motion to suppress, and remand this matter for further factual findings, reconsideration of legal conclusions in light of the further findings, and other proceedings consistent with this decision. So ordered.
By the Court (Cohen, Brown & Fecteau, JJ.),