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Commonwealth v. Matta

Supreme Judicial Court of Massachusetts, Hampden

October 21, 2019


          Heard: May 9, 2019.

         Indictments 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 him.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Andrew P. Power for the defendant.

          Travis H. Lynch, Assistant District Attorney, for the Commonwealth.

          Timothy St. Lawrence, for Michael Sanchez, amicus curiae, submitted a brief.

          Jason 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.

          BUDD, J.

         The 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."[1] 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.

         We 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.


         For the 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.

         Upon 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.

         As the 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.


         1. Motion to suppress.

         The 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).

         "When 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).

         Article 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.

         a. Seizure.

         Here, 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.

         i. Standard.

         "[N]ot 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).[2] 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.[3] 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]).[4]

         A 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).

         Thus, 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").[5] 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 officer.

         The 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.[6]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.

         Although 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 ...

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