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Commonwealth v. Harris

Appeals Court of Massachusetts, Suffolk

March 19, 2018


          Heard: December 18, 2017.

         Indictments found and returned in the Superior Court Department on November 13, 2015.

         A 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.

          Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth.

          Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ.

          ENGLANDER, J.

          This 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.

         That 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 reasonable suspicion.

         1. Background.

          a. Facts.[1]

         This 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 police uniforms.[2]

         At 3:20 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.

         Approximately 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.[3]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.

         Officers 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.

          Soon 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.

         Officer 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 ...

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