COMMONWEALTH v. NOAH (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The juvenile appeals from a finding of delinquency after a bench trial in the Juvenile Court,² and raises two issues on appeal. First, he contends that the judge erred in denying his motion to suppress because the police lacked reasonable suspicion of trespass. Second, he argues that the judge erred in denying his motion to suppress because the police lacked probable cause to arrest him. We affirm.

The judge explicitly credited the testimony of the police officers; accordingly, we summarize the pertinent parts of the officers' testimony here. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (we take facts as motion judge finds them supplemented by uncontroverted evidence explicitly or implicitly credited by judge). A twenty-five-unit apartment building located at 145 Lewis Street in Lynn has been the source of numerous complaints, “quality of life” issues, and reports of violence, including assaults, kidnappings, and shootings. There has been a history of break-ins at the building, as well as problems keeping trespassers out. As a result, Officer Gasca met with the property manager and came up with a plan for the community policing team to periodically walk through the building and for the property manager to put up “no trespassing” signs. There is usually a “no trespass” sign posted on the outside of the building above the main door, which is not locked and leads into a vestibule. There are also usually two “no trespass” signs within the vestibule, as well as a “no loitering” sign. The door leading from the vestibule into the building is locked. On occasion, the “no trespass” signs would be removed but the property manager replaces them quickly, usually within a day.

On April 17, 2017, police received a report of shots having been fired at Goldfish Pond, which is around the corner from 145 Lewis Street. Officer Gasca knew that there had been problems before at Goldfish Pond involving participants whom he had “dealt with” at 145 Lewis Street, but who did not reside there. As a result of this history, when the report of a shooting at Goldfish Pond was received on April 17, the police proceeded directly to 145 Lewis Street. While en route to the building, the suspects were seen running toward 145 Lewis Street. Jonathan Loper, who matched the description of the shooter, was apprehended in a second-floor hallway, holding a knife, and was arrested for trespass. On April 17, 2017, “no trespassing” signs were posted on the exterior of the building above the main entrance. The victims of the shooting episode on April 17 were Michael Espeho and Danny Newhall.

Two days later, on April 19, 2017, Officer Fountain, on patrol in a marked car, saw Espeho and Newhall at the right side of 145 Lewis Street with their hoodies pulled tightly to their faces in what appeared to be an effort to obscure their features. Knowing about the shooting episode two days earlier, Officer Fountain believed a shooting was about to happen at 145 Lewis Street, so he called for unmarked surveillance. Loper, together with the juvenile (who was not known to police) were observed going into 145 Lewis Street and then emerging twenty to thirty seconds later.³ Officer Fountain approached the juvenile and asked him whether he lived in the building, and the juvenile responded that he did not. The officer next asked whether the juvenile was visiting someone at the building, and the juvenile responded that it was none of the officer's business. The juvenile was then arrested for trespassing. A patfrisk at the scene produced nothing. However, after booking at the station, a more thorough search was conducted and resulted in the discovery of an unloaded .22 caliber firearm hidden in the juvenile's groin area, and five rounds of .22 ammunition in his pocket. “No trespass” and “no loitering” signs were posted in the vestibule of 145 Lewis Street on April 19, but the officers could not remember whether a “no trespass” sign was posted on the exterior of the building that day.

When reviewing the denial of a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error and leave 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).

The juvenile argues that the police did not have reasonable suspicion when Officer Fountain asked him questions as he was leaving 145 Lewis Street. But police do not seize a person whenever they seek to question him. See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (“not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification”); Commonwealth v. Harris, 93 Mass. App. Ct. 56, 60 (2018). Rather, a person is seized under art. 14 of the Massachusetts Declaration of Rights if “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.” Commonwealth v. Matta, 483 Mass. 357, 362 (2019). “[T]he police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.” Commonwealth v. Barros, 435 Mass. 171, 174 (2001). There was no stop here in the constitutional sense; the officers did not tell the juvenile to stop, impede his movement, make any display of force or authority, or otherwise signal in any way that the juvenile was not free to leave. See generally Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Because the juvenile was not stopped in the constitutional sense, the police did not need reasonable suspicion to speak with him.

The juvenile next argues that the police lacked probable cause to arrest him for trespass. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Villatoro, 76 Mass. App. Ct. 645, 647-648 (2010), quoting Commonwealth v. Alvarado, 420 Mass. 542, 550 (1995). Probable cause requires “[m]ore than a mere suspicion of criminal activity, but less than proof necessary for a conviction.” Alvarado, supra at 550. “In dealing with probable cause ․ we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (citation omitted). Commonwealth v. Kennedy, 426 Mass. 703, 710-711 (1998). Here, the question is whether there was probable cause to believe that the juvenile had entered 145 Lewis Street after having been forbidden to do so by the person having lawful control of the premises. See G. L. c. 266, § 120.

By the time of arrest, the juvenile had admitted that he did not live at 145 Lewis Street, a building with a history of unwanted trespassers. Loper, with whom the juvenile had entered the building, did not live or belong there and, in fact, had been arrested two days earlier for trespassing at the building after a shooting. It was therefore reasonable to infer that Loper could not have lawfully invited the juvenile onto the premises. The juvenile's response to the officer's inquiry as to whether he was visiting someone who lived in the building gave the officers no reason to believe he was. See Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) (evasive replies can be considered, together with other factors, in assessing probable cause); Commonwealth v. Chaisson, 358 Mass. 587, 590 (1971) (same); Commonwealth v. Lawton, 348 Mass. 129, 133 (1964) (same, based on suspect's “obscene replies and outright refusals to answer”). The officers were not required to eliminate the possibility that the juvenile had entered the building by invitation before probable cause could be established. Although no officer could recall whether a “no trespass” sign was posted on the exterior of the building on the day in question, there were “no trespass” signs in the vestibule when the juvenile entered. In these circumstances, there was probable cause to arrest the juvenile for trespass.

For these reasons, there was no error in the denial of the juvenile's motion to suppress.

Adjudication of delinquency affirmed.

FOOTNOTES

2.   The juvenile was charged with carrying a firearm without a license, possessing ammunition without an FID card, and trespass. The firearm charge was nolle prossed by the Commonwealth before trial. The judge found the juvenile not delinquent on the trespass charge. The delinquency finding was on the ammunition charge.

3.   This observation was made by Detective Hagerty, who responded to the scene at Officer Fountain's request. Detective Hagerty's other testimony duplicated in all material respects that of Officer Fountain and so we do not repeat it here.