Heard: December 18, 2017.
found and returned in the Superior Court Department on
November 13, 2015.
pretrial motion to suppress evidence was heard by Robert
N. Tochka, J., and the cases were heard by Robert B.
Gordon, J., on a statement of agreed facts.
Rosemary Daly for the defendant.
Joyce, Assistant District Attorney (L. Adrian Bispham,
Assistant District Attorney, also present) for the
Present: Green, C.J., Vuono, Wolohojian, Kinder, &
case raises an issue as to the reasonableness of police
conduct when the police engaged with, and ultimately stopped
and seized, persons walking in a public area. The defendant
appeals from his convictions of illegal possession of a
firearm and carrying a loaded firearm without a license,
claiming that (1) the firearm was seized in violation of the
Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights, and (2) the
trial judge failed to conduct the necessary waiver colloquy
before convicting the defendant based upon stipulated facts.
Because, as the Commonwealth acknowledges, the required
colloquy did not occur, the judgments must be vacated and the
findings set aside.
leaves the search and seizure issue, which has been fully
briefed and argued and which bears on any future proceedings.
See Commonwealth v. Monteiro, 75 Mass.App.Ct. 280,
289 (2009). The seizure of the gun resulted from what began
as a "casual" encounter between the defendant, his
two companions, and the Northeastern University (university)
police, outdoors on a September afternoon in the middle of
the university's campus. The defendant contends that he
and his companions were stopped or seized, for constitutional
purposes, without the required reasonable suspicion, and that
the gun accordingly must be suppressed. A Superior Court
judge denied the defendant's pretrial motion to suppress
the gun, concluding that the initial conversations with
police were consensual and that no stop occurred until after
the police officers had observed a knife on the
defendant's person, at which point the seizure became
entirely justified. We conclude that although the initial
actions of the police were reasonable, the police
unreasonably extended the encounter, and then seized the
defendant before the knife appeared and without the requisite
case arises, as our cases often do, out of ordinary police
work that developed into a seizure and, ultimately, an
arrest. On September 23, 2015, Officers John Sweeney,
Jonathan Sprague, and Andrew Good of the university police
were working a day shift. Officers Sweeney and Sprague were
on mountain bicycles, while Officer Good was driving a marked
police car. These three officers were wearing university
P..M., all three officers heard a radio broadcast stating,
"two black males in their early 20's, one wearing a
black hoody, and the other wearing a gray hoody, possibly
with a third person, casing the bike racks by Snell
[L]ibrary" at the university. This information was
initially provided by a security officer employed by the
university, who was stationed by the bicycle racks because
the area was a high-crime area for bicycle theft.
twenty minutes after the broadcast, Officer Good saw two men
fitting the broadcast description, along with a female, pass
his car from the direction of the library. The three people
in the group were the defendant, the other male, Dakari
Ferguson-Boone, and the female, Dajunnay
Wade-Joseph.The defendant and Ferguson-Boone were
seated on bicycles, although Wade-Joseph had no bicycle and
the three were walking together. Officer Good got out of his
car and called out to the group, asking if he could speak to
them, but they continued to move away.
Sprague and Sweeney then approached the group. Officer
Sweeney said hello and asked if he could speak to the three.
Although the exact details and timing of the ensuing
conversations are not spelled out in the judge's
findings, initially the officers stated to the group that
there had been a number of bicycle thefts in the area, and
asked where the group was coming from. The companions
responded that they had eaten at Popeye's, a restaurant
in the campus food court; at least one of the group was
carrying a container from that restaurant.
thereafter a third officer arrived, Officer Jim Cooney, and
three separate conversations ensued, in close proximity.
Officer Sprague spoke with the defendant, Officer Sweeney
spoke with Ferguson-Boone, and Officer Cooney with
Wade-Joseph. The motion judge found that "[t]he
officers' tone of voice was casual, conversational, and
nonthreatening." The officers asked the two men to get
off the bicycles and they complied, placing the bicycles on
the ground. The officers asked whether the men had stolen the
bicycles, and they responded that they had not.
Sprague asked the defendant if he had previously had issues
with the police, and he responded by raising his pant leg,
revealing a GPS-monitored ankle bracelet. Officer Sprague
then asked the defendant for identification, and the other
two officers followed suit, asking for identification from
Ferguson-Boone and Wade-Joseph. The defendant did not produce
identification, but did orally provide his name, date of
birth and address. Officer Sprague then stepped a short
distance away from the group to call in the defendant's
information to police dispatch, in order to conduct a
criminal history and warrant check. Ferguson-Boone provided
some form of identification card, which Officer Sweeney took
and held, waiting for Officer Sprague to complete his
conversation with dispatch. Wade-Joseph ...