Heard: May 9, 2019.
found and returned in the Superior Court Department on
December 17, 2015. A pretrial motion to suppress evidence was
heard by Daniel A. Ford, J.; the cases were tried
before him; and a motion for a new trial was considered by
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
P. Power for the defendant.
H. Lynch, Assistant District Attorney, for the Commonwealth.
Timothy St. Lawrence, for Michael Sanchez, amicus curiae,
submitted a brief.
D. Frank, Vanessa M. Brown, & Chauncey B. Wood, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
defendant, Raul Matta, fled when a police officer attempted
to question him as a result of a tip received regarding a
firearm in a motor vehicle. After pursuing and arresting the
defendant, police recovered a plastic bag containing heroin
that the defendant had thrown onto a pedestrian walkway;
several more small bags of heroin were found at the
defendant's feet. The defendant was charged with
possession of heroin with intent to distribute (second
offense) in violation of G. L. c. 94C, § 32 (b); and
with committing the crime within one hundred feet of a public
park in violation of G. L. c. 94C, § 32J (§ 32J),
the "park zone statute." A judge in the Superior
Court denied the defendant's motion to suppress the
evidence, and the defendant was subsequently found guilty of
each of the above offenses. His motion for a new trial
premised on ineffective assistance of counsel was denied by
the same judge who had decided the motion to suppress and
presided over the trial.
transferred the defendant's consolidated appeal to this
court on our own motion, and we now affirm the
defendant's conviction of possession of heroin with
intent to distribute, reverse the denial of the
defendant's motion for a new trial on the § 32J
charge, and vacate the conviction of a violation of §
32J. In so doing, however, we conclude that intent to commit
the underlying drug crime is sufficient to violate §
32J, without additional proof of scienter of park boundaries;
further, we conclude that whether a particular location is a
"park" pursuant to the statute is a matter for the
fact finder to determine.
purposes of the motion to suppress, we present the facts
found by the motion judge supplemented by uncontroverted
facts from the record. Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015). On
November 5, 2015, in the late afternoon, Holyoke police
received two telephone calls from an unknown source
indicating that the caller had observed someone place a
firearm under the front seat of a black motor vehicle with
two male and two female occupants. The motor vehicle was
parked in an area of Holyoke known for violent crime, drug
sales, and shootings.
arrival, approximately three to four minutes after officers
were dispatched to the scene, one of the officers observed a
parked dark green Honda with two people inside. The officer,
who was driving a marked cruiser, parked directly behind the
vehicle without activating the lights or siren. As the
officer got out of the cruiser, he observed the individual
seated in the passenger seat, later identified as the
defendant, get out of the vehicle and reach with both hands
to the right side of his body and adjust his waistband. The
defendant thereafter began walking toward bushes that were
away from the sidewalk. The officer then called out in
substance, "Hey, come here for a second." At that
point, the defendant made eye contact with the officer and
immediately began to run. As the defendant ran, he held onto
his waistband. The officer yelled out for the defendant to
stop, and then gave chase.
defendant ran behind a nearby apartment building, he threw a
plastic bag over a chain link fence approximately eight feet
high onto a pedestrian walkway. The defendant was apprehended
by multiple officers as he attempted to scale the fence, and
the group fell to the ground. When the defendant was
arrested, there were small wax baggies on the ground at his
feet. The plastic bag retrieved from the other side of the
fence also contained smaller wax baggies. One hundred
twenty-nine baggies were recovered in total. A sample of the
contents of the baggies was found to be heroin.
Motion to suppress.
defendant argues that the officer did not have reasonable
suspicion to stop him, and thus his motion to suppress the
narcotics seized as a result should have been allowed. See
Commonwealth v. Franklin, 456
Mass. 818, 820 (2010) (evidence obtained as result of
unlawful seizure is inadmissible).
reviewing the denial of a motion to suppress, this court
accepts 'the judge's subsidiary findings of fact
absent clear error and leave[s] to the judge the
responsibility of determining the weight and credibility to
be given oral testimony presented at the motion hearing.'
Commonwealth v. Contos, 435 Mass.
19, 32 (2001), quoting Commonwealth v.
Eckert, 431 Mass. 591, 592-593 (2000). 'We
conduct an independent review of the judge's application
of constitutional principles to the facts found.'
Commonwealth v. Hoose, 467 Mass.
395, 400 (2014)." Commonwealth v.
Pinto, 476 Mass. 361, 363 (2017).
14 of the Massachusetts Declaration of Rights provides that
"[e]very subject has a right to be secure from all
unreasonable searches, and seizures, of his person, his
houses, his papers, and all his possessions." An
investigatory stop or "seizure" by police is
justified under art. 14 if police have reasonable suspicion
at the time of the stop to conduct it. See
Commonwealth v. Phillips, 452
Mass. 617, 626 (2008), and cases cited. Thus, we must
determine (1) at what point the stop occurred; and (2)
whether the officer had reasonable suspicion for the stop at
that time. Franklin, 456 Mass. at 820.
the defendant argues that the seizure occurred when the
police officer called out, "[H]ey, come here for a
second," as the defendant began walking away from the
officer. The Commonwealth argues that the seizure occurred
moments later, after the defendant began to flee, when the
officer ordered the defendant to stop running away. As
explained infra, we agree with the Commonwealth.
every encounter between a law enforcement official and a
member of the public constitutes [a seizure]."
Franklin, 456 Mass. at 820, quoting
Commonwealth v. Lopez, 451 Mass.
608, 611 (2008). 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.'" Commonwealth
v. Barros, 435 Mass. 171, 173-174 (2001),
quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J.). See Florida v.
Royer, 460 U.S. 491, 502 (1983). See also
Commonwealth v. Borges, 395 Mass.
788, 791 (1985). However, because civilians rarely feel
"free to leave" a police encounter, a true
application of the test would result in nearly every police
inquiry being deemed a seizure in the constitutional
sense. See 4 W.R. LaFave, Search and Seizure
§ 9.4(a), at 580 (5th ed. 2012) ("[I]f the ultimate
issue is perceived as being whether the suspect 'would
feel free to walk away,' then virtually all
police-citizen encounters must in fact be deemed to involve a
Fourth Amendment seizure. The
Mendenhall-Royer standard should not be
given such a literal reading as to produce such a
result" [footnotes omitted]).
review of our case law reveals that rather than focusing
primarily on whether a reasonable person would have believed
that he or she was free to leave, we look at the totality of
the circumstances to determine whether a member of law
enforcement has "engaged in some show of authority"
that a reasonable person would consider coercive; that is,
behavior "which could be expected to command compliance,
beyond simply identifying [him-or herself] as police"
(quotation and citation omitted). Commonwealth
v. Sanchez, 403 Mass. 640, 644 (1988).
rather than attempting to determine whether a reasonable
person would believe he or she was free to leave, in our
view, the more 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. See Barros, 435 Mass. at 175-176
(question is whether officer was "communicating what a
reasonable person would understand as a command that would be
enforced by the police power"). See also
Commonwealth v. Sykes, 449 Mass.
308, 311 (2007), quoting Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968) (seizure occurs "[o]nly when the
officer, by means of physical force or show of authority, has
in some way restrained the liberty of a
citizen"). If applied literally, the
Mendenhall-Royer standard would require a
court to treat "seizure" as a state of mind induced
by the mere presence of law enforcement, rather than a
discrete and intentional act of law enforcement. See
Black's Law Dictionary 1631 (11th ed. 2019) (defining
"seize" as "[t]o forcibly take possession [of
a person or property]"). Cf. California
v. Hodari P., 499 U.S. 621, 625 (1991),
quoting Thompson v. Whitman, 85
U.S. 457, 471 (1873) ("A seizure is a single act, and
not a continuous fact") . Cf. also Nieves
v. McSweeney, 241 F.3d 46, 55 (2001)
(pretrial release conditions do not constitute seizure
because seizure is "generally a discrete event,
quintessentially an arrest, . . . or at least a physical
detention"). In other words, while the attending
circumstances of a police encounter are relevant, a
"seizure" must arise from the actions of the police
question whether one believes he or she is free to walk away
from a police encounter, as compared to whether one believes
he or she would be coerced to stay, is not a distinction
without a difference. Police officers are free to make
noncoercive inquiries of anyone they wish. See
Commonwealth v. Murdough, 428
Mass. 760, 763 (1999). And, as discussed in note 3,
supra, although not legally obligated, few civilians
feel as if they could discontinue an encounter with a law
enforcement officer, let alone ignore an inquiry from
one.Indeed, the police depend on a degree of
civilian compliance to maintain public safety and carry out
criminal investigations. See Strange v.
Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008). In
short, because, in most situations, a reasonable person would
not believe that he or she was free to leave during a police
encounter, 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.
this is a different question from what we heretofore have
asked, the analysis takes the same circumstances into
consideration. Whether an encounter between a law enforcement
official and a member of the public constitutes a noncoercive
inquiry or a constitutional seizure depends upon the facts of
the particular case. See Sykes, 449 Mass. at 311,
citing Commonwealthv.Thinh Van
Cao, 419 Mass. 383, 387, cert, denied, 515 U.S. 1146
(1995) ("The nature of an encounter between a citizen
and a law enforcement official is necessarily fact specific
and requires careful examination of the attending
circumstances"). The difference is one of emphasis --
that is, even though most people would reasonably feel that
they were not "free to ...