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Commonwealth v. Sheppard

Superior Court of Massachusetts, Suffolk

June 29, 2017

Commonwealth of Massachusetts
v.
Jahmil Sheppard

          MEMORANDUM OF DECISION AND ORDER ON: (1) MOTION TO SUPPRESS EVIDENCE, AND (2) MOTION TO APPLY THE EXCLUSIONARY RULE AT PROBATION REVOCATION HEARING

          Paul D. Wilson, Justice.

         Boston police officers pulled over Defendant Jahmil Sheppard's car for an alleged motor vehicle infraction. Before the encounter was over, the police had discovered a firearm in the car, and so they charged Mr. Sheppard with firearms-related offenses. Mr. Sheppard now moves to suppress the weapon.

         Mr. Sheppard was on probation at the time he was charged with these new crimes. As a result, Mr. Sheppard now faces possible revocation of his probation for violating its terms by committing another crime. Therefore Mr. Sheppard has filed a second motion, arguing that any evidence that I rule inadmissible at trial in today's case must also be excluded from evidence at the hearing concerning the revocation of his probation in the earlier case.

         I held a hearing on both motions on June 19, 2017. The only witness was Officer Taylor Small of the Youth Violence Task Force of the Boston Police Department. Five exhibits were introduced, including video taken by Officer Small's body camera, which was also played during the hearing. Counsel argued the motions both before and after the presentation of the evidence.

         I will now allow the motion to suppress, as well as the motion to exclude the suppressed evidence at the probation revocation hearing.

         FINDINGS OF FACT

         Based on all the credible evidence and the reasonable inferences from that evidence, I find the following facts.

         1. The Stop

         On September 28, 2016, at approximately 9:25 P.M., Officer Small was on routine patrol in an unmarked cruiser with two partners. As is their habit when on patrol, the officers used their in-cruiser computer to query law enforcement databases about the registered owners of motor vehicles they encountered. Their purpose was to check for stolen vehicles, expired registrations, revoked insurance coverage, and the like.

         On this night, their cruiser fell in behind a motor vehicle operated by Mr. Sheppard. The officers submitted a query about the auto's registration, and learned that Mr. Sheppard was the registered owner of the car. Officer Small and at least one of his partners immediately recognized the name, because they had arrested Mr. Sheppard in May 2013 for carrying an unlicensed firearm in his motor vehicle. These officers were aware that Mr. Sheppard had been convicted of a firearms violation at that time, and had one additional firearms-related conviction on his record. They were also aware that Mr. Sheppard was on probation as a result of his conviction for the firearms crime for which they had arrested him three years earlier. The officers submitted further queries, confirming that Mr. Sheppard's motor vehicle was inspected and insured and that he had a valid driver's license.

         As the officers followed Mr. Sheppard down a one-way street, containing one traffic lane and parking on both sides, Mr. Sheppard pulled quickly into a parking space on the left side of the street. He did not signal before making that maneuver. The officers decided that Mr. Sheppard had acted in a way that was unsafe for following vehicles. (However, Officer Small, who was driving the vehicle closest to Mr. Sheppard's car on this one-lane street, did not testify that he was forced to take any action as a result of Mr. Sheppard pulling his car to the curb.) The officers decided to cite Mr. Sheppard civilly for failure to use a turn signal. Later in the encounter, one of the officers did write a ticket for that civil offense, which is Exhibit 1.

         Officer Small activated his cruiser's blue lights and brought his cruiser to a stop. All three officers got out of the cruiser and approached Mr. Sheppard's now-parked vehicle. Mr. Sheppard was the only occupant of the car.

         2. The Officers' Dealings with Mr. Sheppard About the Civil Infraction

         Officer Small approached the driver's door, where he observed that Mr. Sheppard was sweating and nervous. Officer Small asked Mr. Sheppard for his driver's license and registration. Mr. Sheppard had difficulty removing the registration from a plastic envelope, asking Officer Small to assist, which Officer Small declined to do. Eventually Mr. Sheppard extracted the registration.

         Because of the earlier queries, the officers knew that both the registration and the driver's license were current. Nevertheless, Officer Small returned to the cruiser to run a confirmatory check on the license and registration, and to run certain other queries that he had not run before. Among those queries was a request for Mr. Sheppard's Board of Probation criminal record (" BOP"). See Exhibit 5, a Department of Criminal Justice Information Services showing the date and time of various queries. A review of that BOP confirmed that Mr. Sheppard was on probation, a fact that Officer Small already knew. During the few minutes that this process took, one of Officer Small's partners remained with Mr. Sheppard and his motor vehicle, engaging in conversation.

         The Prolongation of the Stop

         Officer Small returned shortly to the driver's window of Mr. Sheppard's car. He asked Mr. Sheppard how his probation was going, and specifically whether the probationary terms included any areas from which he was to stay away, or any curfew. Mr. Sheppard answered these questions cooperatively, but was still sweating.

         Officer Small asked Mr. Sheppard if there were any weapons in his car. Mr. Sheppard responded, " No, why would there be?" Officer Small reminded Mr. Sheppard that he personally had arrested Mr. Sheppard three years earlier for having a weapon in a motor vehicle. Officer Small asked if Mr. Sheppard had any weapons on him, and he said no. Officer Small asked if Mr. Sheppard would mind if he checked, and Mr. Sheppard replied that he wanted to go home.

         One of the other officers asked Mr. Sheppard why he was parking where he parked. He gave two different answers: that there is no parking available near his house, so sometimes he parked here and took an Uber home; and that he was visiting a nearby friend. Officer Small believed these two answers to be inconsistent, and also believed that ...


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