Opinion
No. 12–P–1567.
2013-10-18
COMMONWEALTH v. Samuel STAMPLEY.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order suppressing statements made by the defendant, Samuel Stampley, to Officer Moscaritolo and evidence seized from his backpack. The Commonwealth argues there was no seizure of Stampley and he was not in custody when the statements were made. The Commonwealth also argues the defendant voluntarily and freely consented to the search of the backpack. We agree and reverse the order allowing the motion to suppress.
Standard. This court reviews findings of fact from a suppression hearing for clear error, “but conduct[s] an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Gomes, 453 Mass. 506, 509 (2009), quoting from Commonwealth v. Washington, 449 Mass. 476, 480 (2007).
Factual and procedural background. On the evening of September 8, 2011, Moscaritolo was in uniform on patrol. After smelling burnt marijuana at 8:00 P.M., Moscaritolo exited his police car and walked about twenty feet to bleachers where Stampley was sitting. He asked the individuals in the bleachers what they were doing and Stampley said, “we're smoking a little bit of weed.” Moscaritolo asked where it was and Stampley responded he had thrown a “blunt” behind them. After a few minutes, Moscaritolo found the blunt and then asked Stampley if he had any more. Stampley responded that he did not. Moscaritolo noticed Stampley “kept looking at a backpack on a bench.” Moscaritolo asked “if there was anything in the back pack that [he] should be concerned about.” Stampley said, “Nah, you can take a look.” Moscaritolo searched the backpack, found thirteen bags of marijuana, and called for back-up.
Discussion. 1. Lack of seizure. At issue here is whether Stampley was seized under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution at any point before Moscaritolo searched the backpack. “A person is seized by the police only when, in light of the surrounding circumstances, a reasonable person in the situation would not feel free to leave.” Commonwealth v. Gomes, supra at 510. It is possible for police to question individuals on the street without a seizure occurring. See Commonwealth v. Narcisse, 457 Mass. 1, 5–6 (2010).
Here, at 8:00 P.M., Moscaritolo approached Stampley in an open area and asked a few questions. Moscaritolo then searched for the blunt on the ground and asked Stampley some additional questions. The findings of fact do not indicate any show of force or authority by Moscaritolo aside from wearing a uniform. See, e.g., Commonwealth v. Thinh Van Cao, 419 Mass. 383, 388 (1995) (holding no seizure occurred when police approached group in an open area and asked questions); Commonwealth v. Lopez, 451 Mass. 608, 612 (2008) (explaining there was no seizure because there was no evidence of an officer using an aggressive tone, that an officer “blocked the defendant from leaving, or that the officers issued any orders or commands to the defendant”); Commonwealth v. Martin, 457 Mass. 14, 18–19 (2010) (holding no seizure occurred during initial questioning for name and age). As a result, Moscaritolo did not seize Stampley.
The only evidence supporting the finding of a seizure was Moscaritolo's statement that he did not believe Stampley felt free to leave. However, the standard for when a seizure occurred is an objective one. What Moscaritolo believed about whether Stampley subjectively felt free to leave is not germane under our objective legal standard.
2. Miranda warnings. At issue here is whether Stampley was in custody under the standard of Miranda v. Arizona, 384 U.S. 436 (1966), when he made statements to Moscaritolo. An individual is in custody when, considering the totality of the circumstances, a reasonable person would believe he has been “deprived of his freedom of action in any significant way.” Commonwealth v. Almonte, 444 Mass. 511, 517 (2005), quoting from Commonwealth v. Groome, 435 Mass. 201, 211 (2001). A reasonable person in Stampley's position would have felt free to leave and, therefore, he was not in custody. As a result, no Miranda warnings were required.
Miranda warnings are only required when an individual is subject to a “custodial interrogation.” See Commonwealth v. Morse, 427 Mass. 117, 122 (1998).
3. Consent to the search. At issue here is whether the actual consent provided by Stampley when saying, “Nah, you can take a look,” was voluntary. The Commonwealth has the burden of proving the consent was freely and voluntarily given. See Commonwealth v. Carr, 458 Mass. 295, 299 (2010). A finding of voluntariness is a question of fact and is reviewed for clear error. See id. at 302.
In making his finding, the judge did not consider that there was only one officer present, that the defendant was not in custody, or that Moscaritolo did not ask to search the bag but only asked if there was “anything in the back pack that [he] should be concerned about” and Stampley volunteered that the officer could take a look. See ibid. These factors, taken in the whole context of the encounter, compel the conclusion that the defendant's consent to the search was voluntary. The judge's contrary conclusion that “any consent ... to the search was made under effectively coerced circumstances” was erroneous.
The Carr opinion notes the factors a court should “consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given.” Commonwealth v. Carr, 458 Mass. at 302.
Order allowing motion to suppress reversed.