Commonwealth v. Mathis
Commonwealth v. Mathis
Dissenting Opinion
(dissenting). The defendant was questioned by police only because he was standing in front of a house posted with a “no trespassing” sign. Although the officers had no reason to think that the defendant was in fact trespassing,
I dissent because the encounter should have ended then. Once the original purpose of the questioning was satisfied and no other appeared, the police were not entitled to conduct a fishing expedition simply to see what, if anything, they might turn up. See, e.g., Commonwealth v. King, 389 Mass. 233, 244 (1983) (police inquiry made in context of routine traffic stop must end on production of valid documents); Commonwealth v. Torres, 424 Mass. 153, 158 (1997) (same).
The problem is exacerbated because the excessive questioning took place in conjunction with an unlawful seizure. See Commonwealth v. Lyles, 453 Mass. 811, 817 (2009). The defendant was not free to go once the police took his identification,
To the extent that the majority is resting its analysis and conclusion on whether, in the circumstances of this case, a reasonable person would have believed himself free to leave, it is engaged in impermissible fact finding. On appeal from an order on a motion to suppress, we may supplement the motion judge’s findings of fact only “if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). Here, the motion judge made no findings concerning several of the facts relied on by the majority, nor are those facts undisputed. For example, the officer testified that he exited his cruiser before asking the defendant whether he had anything on him; the defendant testified that the officers exited after they received his response. Similarly, the defendant testified that the officers asked him whether he had anything on him immediately after returning his identification, and then immediately left their cruiser when he replied that he had “weed.” The officer, by contrast, testified to a continuing “general conversation” (which included asking the defendant whether he ever had been arrested), and further observations of what he characterized as suspicious behavior, before he exited his vehicle. By way of further example, the defendant denied any suspicious behavior or demeanor, including denying avoiding making eye contact, or being nervous.
For these reasons, I respectfully dissent.
The police had not received any reports of trespassing, or any other suspicious activity in the area that evening. The police did not know the defendant, and there is no suggestion that they had any reason to think he did not live at the address or was not otherwise legitimately present. The officer admitted that he stopped the defendant only because he was standing near a “no trespassing” sign.
The Torres and King cases involve police questioning in the context of vehicular stops. There is no reason, however, not to apply their analyses to this case. Indeed, in the related context of searches, it long has been held that vehicles carry with them a diminished expectation of privacy. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 368 (1976); Wyoming v. Houghton, 526 U.S. 295, 304 (1999). It would make no sense, therefore, to hold here (as the majority does) that the defendant is entitled to more protection from police questioning when in his car than on the street.
Such behavior alone in any event would not justify the search. Commonwealth v. Brown, 75 Mass. App. Ct. 528, 533 (2009), quoting from Com
Opinion of the Court
After a jury trial in the Dorchester Division of the Boston Municipal Court Department, the defendant was found guilty of possession of cocaine with intent to distribute,
Background. The facts are uncontested except in two incidental respects; in both of these the judge credited the defendant’s recollection. At approximately 10:30 p.m. on February 5, 2006, Boston police Officers Duran Edwards and Richard Sleamon
At this point, the officers emerged from their cruiser.
Seizure of the defendant. The motion judge correctly ruled
Even if the officers’ request for identification is characterized as more than a casual street encounter and therefore required justification, such justification was present here. As noted, supra, the officers’ request for identification served to test the defendant’s explanation for his presence in front of a “no trespassing” sign.
As stated, supra, and assuming the defendant provided the officers with identification in written form, it was returned to him after the warrant check was completed. Our cases dealing with investigatory stops recognize that there is some ambiguity inherent in many encounters between citizens and police officers. See Commonwealth v. Sykes, 449 Mass. 308, 311 (2007) (“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”); Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 172 (2001) (“[sjtreet encounters between citizens and police officers are incredibly rich in diversity . . . [which] yields the abundance of ‘highly fact-based questions’ ” [citations omitted]).
However, where the retention of documents serves as an inferred command to remain on the scene during a warrant check, their return may be viewed as a positive act that removes the command. Simply put, any implicit command dependent on the retention of documents is no longer operative once the documents are returned. Consistent with this logical inference, the defendant testified at the motion hearing that he considered himself free to leave at the point that his identification was returned to him.
Moreover, even if we assume that the defendant had not been free to depart after the warrant check produced negative results, the police were justified in continuing their investigation under these circumstances, at least to the minimal extent they did so here. The defendant’s odd and evasive behavior provided ample support for the single additional question that led to the admission that the defendant had illegal drugs on his person. Thus, even if the return of the identification is not characterized as a termination of the seizure that began when it was taken, there was reasonable suspicion to prompt the question asked by the police. See note 13, infra.
We next address the contention that Officer Edwards illegally seized the defendant because he exited his vehicle before, not after, the defendant admitted to possessing marijuana. The motion judge’s finding to the contrary is supported by the evidence. In reviewing a motion to suppress, we adhere to the motion judge’s findings of fact absent clear error. Commonwealth v. Thomas, 429 Mass. at 405. “We independently determine whether the judge correctly applied constitutional principles to the facts as found.” Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). “The clear error standard is a very limited form of review. . . . Where there has been conflicting testimony as to a particular event or series of events, a judge’s resolution of such conflicting testimony invariably will be accepted.” Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984).
Moreover the distinction is of no legal import in the circumstances of this case. A person is “seized” by a police officer “if, in view of all of the circumstances surrounding the
Perhaps more to the point, however, and equally dispositive in this appeal, is the fact that the officers had probable cause to arrest this defendant after he told them he was in possession of illegal drugs. See Commonwealth v. Johnson, 413 Mass. 598, 602 (1992), quoting from Commonwealth v. Santiago, 410 Mass. 737, 742 (1991) (search incident to arrest may precede formal arrest “as long as probable cause [to arrest] existed independent of the results of the search”).
Miranda warnings. We next address the defendant’s claim that the officers subjected him to custodial interrogation absent Miranda warnings when they exited their vehicle to continue questioning. Before addressing the merits of the claim, we must determine whether the defendant waived the issue. Rule 13(a)(2) of the Massachusetts Rules of Criminal Procedure requires that a motion to suppress set forth the grounds “with particularity.” Furthermore, the rule requires that an affidavit be attached “detailing all facts relied upon in support of the motion.” A party’s failure to raise a potential claim at his suppression hearing waives any appeal on that issue. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004) (“Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived . . .”). The defendant’s motion to suppress focused entirely on the alleged unlawful seizure, and claimed only that his statements should be suppressed as the fruits of that seizure. Moreover, the affidavit contained no facts whatsoever with respect to any such statements. Consequently, the defendant’s claim is waived and not properly before us.
Judgments affirmed.
Although the parties spell Officer Sleamon’s name as detailed in the text, it appears as “Slamin” in the criminal complaint.
The defendant testified that he provided identification. The officers did not remember whether they asked for documentation or merely asked the defendant for his name and address. It is uncontested that the information, however provided, was used to determine whether the defendant had any outstanding warrants.
The officer so testified at one point. The judge found that the officer “asked the question whether [the defendant] had any guns or drugs on him.” The judge’s use of “guns and drugs” rather than “anything” is not supported by the evidence; the difference in wording does not affect our analysis.
At the time of the offense, it was still a crime in Massachusetts to possess
We reproduce the relevant testimony:
Witness: “I believe at that time I proceeded to exit the cruiser. And I asked him. I was like, you know, ‘You have anything on you I need to know about?’ And, um, he stated to me, you know, ‘Yeah, I got a bag [of] my weed in my pocket.’ And he proceeded to go inside his pocket to try to pull the weed out. And I told him, you know, keep your hands where I could see them.”
Prosecutor: “At — at this point, Officer, where is your partner?”
Witness: “Um, I believe he’s still, uh, sitting inside the cruiser, I believe, or he’s getting out at the time I get out.”
ProsEcuTOR: “Uh, and you stated that you instructed him to take his hands out of his pocket?”
Witness: “That’s correct.”
Prosecutor: “What happened next?”
Witness: “At that time I proceeded to, um, I continued to engage him, you know. Um, you know, ‘You ever been arrested before?’ that sort of thing. Just general conversations. And, um, at that time, you know, I still made additional observations. Like I said, he was looking away from us, failing to make eye contact, looking down at the ground. And at the time, I believe I — he attempted to put his hands back in his pocket again.”
The defendant testified that the officers left their vehicle only after questioning him. The motion judge’s findings on this point, though imprecise, adopted the defendant’s version.
In this context we must disagree with the suggestion in the dissent that the police were not justified in making serious inquiry of the defendant because the initial encounter involved “only” a “no trespassing” sign, representing as that does in many instances a final line of defense for elderly or vulnerable residents of deteriorating neighborhoods to criminal activity on their doorsteps.
We note that the judge did not have the benefit of Lyles, which was decided after the trial in this case.
Defendant: “[T]hey just hopped out of the car and asked me . . . do I have any weapons or drugs. That’s when they exited the car.”
Defense counsel: “Ok. And did you think you were free to leave at (inaudible) that point?”
Defendant: “Yeah. If I don’t have no warrants.”
The defendant also denied having been nervous, but conceded that he had been out of breath, testifying he had “[run] down the stairs.”
As noted, supra, the facts are undisputed in all material respects; accordingly we do not comprehend the dissent’s perception of appellate fact finding. In any event, a determination whether a reasonable person is free to leave is a legal conclusion applied to (here, undisputed) facts, and not a factual finding. Compare Commonwealth v. Rock, 429 Mass. 609, 611-612 (1999).
We have noted as well that the finding that the officers were still in their vehicle is based on the defendant’s own testimony, which the motion judge was entitled to credit. See note 5, supra.
To the contrary, as discussed, supra, the defendant’s own version of events was that his identification, which he knew by then that the police considered to be exculpatory, had been returned to him before they exited the cruiser, and that he considered himself free to leave.
General questioning unrelated to the reason for a police encounter does not “convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 129 S. Ct. 781, 788 (2009). One question, undeniably the fewest number one can ask, cannot rationally be argued to qualify as violative of this principle.
The defendant’s reliance on Commonwealth v. King, 389 Mass. 233 (1983), is unavailing. In King, the investigating officer’s “repositioning of his cruiser” constituted a show of authority that transformed the encounter into a seizure. Id. at 241. Thereafter, further interaction with the defendants required an articulable justification on the part of the officer. Id. at 243-244.
Officer Edwards testified as well that the defendant’s mannerisms — those he observed during his initial questioning about the defendant’s presence in front of a “no trespassing” sign — “are consistent with someone who may be in possession of a weapon.”
This case does not involve a routine traffic stop and the questioning of an individual who was not the driver, and hence not suspected of any traffic violation, as was considered in Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997). Furthermore, even assuming the defendant was still seized by the police despite the return of his identification and despite his own perception to
Even were we to reach the issue, there is no colorable claim on this record that the defendant was being subjected to custodial interrogation at the time he made his inculpatory statement. See DePeiza, supra at 376 (officer’s querying whether defendant was carrying a gun after announcing he wanted to conduct a patfnsk not deemed custodial interrogation where officers’ tone was conversational and conduct not aggressive).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.