Opinion
19-P-399
12-03-2019
COMMONWEALTH v. Joel M. MORALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged in District Court with various firearm and drug offenses, all arising from a 1 A.M. encounter at a bar in which police seized, searched, and subsequently arrested him. He filed a motion to suppress all evidence recovered and statements made after the seizure, which a judge denied after an evidentiary hearing. The defendant obtained leave to take an interlocutory appeal and now argues that (1) the judge erred in finding that the seizure did not occur until the defendant was pat frisked, and (2) the police officers' grounds for their warrantless seizure and search were insufficient to support reasonable suspicion. We conclude that the seizure occurred before the patfrisk and that the officers' knowledge at the time of the seizure did not amount to reasonable suspicion. We therefore reverse.
The offenses were (1) carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; (2) carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ) ; (3) possession with intent to distribute a class B substance (cocaine), G. L. c. 94C, § 32A (a ) ; and (4) carrying a loaded firearm in the commission of a felony, G. L. c. 265, § 18B. The fourth offense was disposed of via a nolle prosequi.
Background. We recite the relevant facts as found by the judge, supplemented where necessary by uncontroverted police testimony, which the judge credited in full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). Prompted by an anonymous 911 call in which the caller said there was a male with a firearm at a bar, Officer Bruce Nicely and his partner, both in uniform, were dispatched to the bar in question. The person was described as a black male having corn rolls and wearing a red sweatshirt. The officers walked into the bar and saw the defendant, who matched that description. They approached him, and Officer Nicely told the defendant they wanted to speak to him outside. The defendant said they could talk to him right there, and Officer Nicely replied that they were going to go outside. Officer Nicely agreed that he and his partner "physically removed [the defendant] from th[e] bar," with both officers taking hold of the defendant, one by each arm, and escorting him outside. He offered no resistance. Officer Nicely also agreed that, "from the time that [they] walked up to [the defendant] in that barroom ... he wasn't free to go anywhere."
The police officer in question, Officer Bruce Nicely, was the sole testifying witness. The judge said, "I find [him] to be credible," and the judge's decision did not discredit or contradict any factual statement Officer Nicely made.
Although it appears likely that the term used was "rows," we nevertheless use the term "rolls," which appears in the hearing transcript and the judge's decision.
Outside, the defendant was placed up against a wall, with one officer on either side and a third officer standing "right behind [them] ... very ... close." The officers conducted the investigation outside because they were concerned for their own and bar patrons' safety and did not want people inside the bar interfering. Officer Nicely asked the defendant if he had anything on him, "like a needle, knives, gun?" He hung his head, drawing the officers' attention down to his waistband. Officer Nicely's partner then moved the defendant's sweatshirt slightly and both officers saw a firearm at the top of his waistband. Officer Nicely asked the defendant if he had a license to carry and he said, "I'm working on it." The officers then secured his firearm, arrested him, and conducted a patfrisk during which cocaine was discovered.
Discussion. 1. Moment of seizure. In reviewing a ruling on a motion to suppress, "we adopt the motion judge's factual findings absent clear error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008), and "conduct an independent review of his ultimate findings and conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "We have long held that ‘[p]olice have seized a person in the constitutional sense only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave’ " (quotation omitted). Commonwealth v. Matta, 483 Mass. 357, 360 (2019), quoting Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001). However, in Matta, the court held that "using that standard does not produce the information necessary to determine whether a seizure has occurred. Rather, the inquiry must be whether, in the circumstances, a reasonable person would believe that an officer would compel him or her to stay." Id. at 363. "[T]he ... pertinent question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay." Id. at 362.
Here, we conclude that the seizure did not occur when the police conducted a patfrisk of the defendant outside the bar, as the judge ruled, but instead when both uniformed officers physically took hold of him inside the bar and made clear to him through their words and conduct that he had no choice but to accompany them outside. This constituted a seizure under either the old "not free to leave" standard or the new Matta standard.
2. Reasonable suspicion. "If a suspect was seized in the constitutional sense, we ask whether the stop was based on an officer's reasonable suspicion that the person was committing, had committed, or was about to commit a crime." Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Here, we must decide whether the officers had reasonable suspicion, "based on specific, articulable facts and reasonable inferences drawn therefrom," to seize the defendant when he was in the bar. Commonwealth v. Wren, 391 Mass. 705, 707 (1984). We need not address the defendant's argument that the 911 caller was insufficiently reliable to support reasonable suspicion, see Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985), because even if the caller were reliable, and even taking into account all of the other information the police had at the moment of the seizure, that information was insufficient to establish reasonable suspicion.
Mere possession of a firearm is not a crime, and even a reliable tip that an individual is carrying a firearm does not, without more, furnish reasonable suspicion. See Commonwealth v. Alvarado, 423 Mass. 266, 269-270 (1996) ; Commonwealth v. Famania, 79 Mass. App. Ct. 365, 370-371 (2011). "[W]hen a police officer receives information concerning an individual with a gun, the ‘test for determining reasonable suspicion should include consideration of the possibility of the possession of a gun, and the government's need for prompt investigation.’ " Commonwealth v. Stoute, 422 Mass. 782, 791 (1996), quoting United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994).
While we agree that the officers were duty-bound to investigate, "[w]e have nothing here to justify a reasonable suspicion of criminal conduct beyond a report of a concealed weapon. There is no suspicious conduct except as the concealment itself may generate suspicion." Alvarado, 423 Mass. at 270. See Matta, 483 Mass. at 366, quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007) ("the caller's tip ‘suggesting a concealed firearm, with nothing more, [did] not provide reasonable suspicion for a stop’ "). Finally, there was no reason to suspect that the defendant had pointed, fired, or dropped the gun or otherwise posed "any imminent threat to public safety." Alvarado, supra at 271. Contrast Commonwealth v. Manha, 479 Mass. 44, 48 (2018) ; Commonwealth v. Campbell, 69 Mass. App. Ct. 212, 216-217 (2007) ; Commonwealth v. McCauley, 11 Mass. App. Ct. 780, 781-782 (1981).
Moreover, we are not persuaded by the Commonwealth's argument based on Commonwealth v. Crowley, 29 Mass. App. Ct. 1, 5 (1990), that the denial of the motion to suppress can still be affirmed because the detention was short. In Crowley, after first determining that there was reasonable suspicion justifying a stop, the court ruled that the defendant's statements increased the officers' suspicion and "justified prolonging the stop and enlarging the scope of the threshold inquiry." Id. at 4. Here, in contrast, at the moment the seizure occurred, there was no reasonable suspicion to justify it. For that same reason, the cases relied upon by the judge, in which reasonable suspicion justified the initial stop or seizure, are not applicable here.
Commonwealth v. Edwards, 476 Mass. 341, 346-347 (2017) ; Commonwealth v. Haskell, 438 Mass. 790, 793-794 (2003) ; Commonwealth v. Sinforoso, 434 Mass. 320, 323-324 (2001) ; Commonwealth v. Moses, 408 Mass. 136, 140 (1990) ; Commonwealth v. Borges, 395 Mass. 788, 794 (1985).
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The order denying the motion to suppress is vacated, and a new order shall enter allowing the motion.