COMMONWEALTH v. WILMER W., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile defendant was charged with multiple crimes resulting from an interaction with the police wherein a firearm was recovered from his backpack.2 He filed a motion to suppress the firearm and other evidence, arguing that the police lacked reasonable suspicion to lawfully seize him. A Juvenile Court judge denied both that motion and the juvenile's motion for reconsideration, and the juvenile pleaded guilty to carrying a firearm without a license, G. L. c. 269, § 10 (a), and resisting arrest, G. L. c. 268, § 32B, conditioned upon his right to appeal the orders denying his motion to suppress.3 See Commonwealth v. Gomez, 480 Mass. 240, 252 (2018); Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). Concluding that the police lacked reasonable suspicion at the time of the stop, we reverse.
Background. We summarize the facts as found by the motion judge, supplemented with additional facts from testimony explicitly or implicitly credited by the judge as well as our independent review of the documentary evidence.4 See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
On August 2, 2018, five Boston police officers, each in separate unmarked vehicles, were assigned to execute search warrants for the person and the residence of Brian Thompson.5 The search warrants were issued based upon a confidential informant's observation of Thompson, a juvenile, in possession of a gray and brown rifle inside of his residence on Estabrook Road in the Roxbury section of Boston. Stationed outside of the residence, the officers planned to wait for Thompson to exit. They then intended to secure him and use his house key to enter the home and conduct a search of the residence.
After approximately thirty to forty-five minutes of waiting, Officer Omar Borges, who was parked directly by the front door of the residence, observed Thompson exit the home with a young Black male who was not known to Borges at the time but was later identified as the juvenile. Officer Borges observed Thompson look from “side-to-side” before walking down the front stairs. He also noticed that the juvenile was wearing a backpack. The two juveniles then proceeded down Estabrook Road toward Dewitt Drive, uninhibited by the police.6
As the two walked, they both repeatedly looked over their shoulders and appeared to be conscious of their surroundings. The juvenile had his hands on the straps of his backpack and was holding the backpack tight to his back. On at least two occasions, Officer Borges observed the juvenile reach behind him with his left hand and tap the bottom of his backpack. Borges testified that, “through [his] training and experience,” he believed that the juvenile was conducting a “security check.” The officer explained that, in his experience, when an individual is carrying a firearm illegally, the firearm is usually “unholstered or it's loose,” and the individual will tap the area where the weapon is located to ensure it is secure.
Thompson and the juvenile eventually turned the corner onto Dewitt Drive. Borges alerted the other officers of his observations by radio and then began to follow the two juveniles. Officer Borges observed the two approach the Dewitt Community Center, and he described their demeanor as more relaxed than it had been previously. At 1:03 p.m., the two juveniles entered the community center. They spoke to the receptionist at the front desk, signed in, and walked up a flight of stairs leading to the second floor of the building.
Officer Borges waited outside until Detective Daniel Griffin arrived at the community center. At 1:05 p.m., Borges and Griffin entered the building, approached the receptionist, and obtained the sign-in sheet containing Thompson's and the juvenile's names. Officer Borges asked the receptionist where he could find the two youths, and she directed him to a classroom on the second floor of the community center. The officers proceeded to the second floor and attempted to enter the classroom in which Thompson and the juvenile were located, but a community center employee assigned to the classroom stopped them and said that he would retrieve the two himself.
The juvenile, seemingly unfazed, walked out of the classroom first and was immediately followed by Thompson. The juvenile first shook Officer Borges hand and then Detective Griffin asked him, “what's up man. Can I talk to you for a second?” and placed his hand on the juvenile's chest. Simultaneously, Officer Borges shook Thompson's hand and informed him that the officers had warrants to search his person and his residence. Upon hearing this information, the juvenile ran from the officers down the stairs of the community center and toward the exit. Officer Borges attempted to chase the juvenile, but Thompson intervened and stopped him by grabbing his wrist. Detective Griffin chased the juvenile down the stairs, and tackled him on the first floor of the community center. The juvenile struggled with Griffin, kicking him and attempting to grab his gun. Eventually, additional officers arrived and assisted Detective Griffin in restraining the juvenile. The juvenile was arrested, his backpack searched, and a gun was recovered.
Discussion. “In reviewing a ruling on a motion to suppress evidence, 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 ․ testimony presented at the motion hearing.” Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). We, however, “review independently the application of constitutional principles to the facts found.” Id. We also conduct an independent review of the documentary evidence. Tremblay, 480 Mass. at 654-655.
The juvenile and the Commonwealth agree that the juvenile was seized when Detective Griffin placed his hand on the juvenile's chest. See Commonwealth v. Shane S., 92 Mass. App. Ct. 314, 322 (2017) (juvenile constitutionally seized when officer put his hands on juvenile's chest). Thus, the question before us is whether the police had reasonable suspicion that the juvenile was committing, had committed, or was about to commit a crime -- here, was unlawfully in possession of a firearm -- at that time.7 Commonwealth v. Matta, 483 Mass. 357, 365 (2019). We conclude that they did not.
Reasonable suspicion “must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a hunch.” Commonwealth v. Warren, 475 Mass. 530, 534 (2016), quoting Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). “Reasonable suspicion is measured by an objective standard,” Meneus, 476 Mass. at 235, and “[t]he facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his [or her] acts.” Matta, 483 Mass. at 365, quoting Commonwealth v. Sykes, 449 Mass. 308, 314 (2007).
The motion judge concluded that, based on Officer Borges's observations of the juvenile acting in a “surveillance conscious manner” and twice conducting a security check of his backpack, the police had reasonable suspicion to believe that the juvenile was carrying a firearm.8 The judge also considered the fact that the juvenile was accompanying Thompson, whom the police had a warrant to search. The juvenile argues, however, that looking around and tapping the bottom of a backpack in these circumstances was not sufficiently suspicious to justify a stop, and the police were not authorized to stop him based solely on his presence with Thompson. He further argues that the absence of other factors indicating that he was possessing a firearm reveals that the police lacked reasonable suspicion for the stop.
“ ‘[A] combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief’ that a person has, is, or will commit a particular crime.” Meneus, 476 Mass. at 236, quoting Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006). Specifically, “[s]trange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect.” Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005). See DePeiza, 449 Mass. at 372 (“Although nervous or furtive movements do not supply reasonable suspicion when considered in isolation, they are properly considered together with other details to find reasonable suspicion”). “But nervous or anxious behavior in combination with factors that add nothing to the equation will not support ․ reasonable suspicion.” Commonwealth v. Brown, 75 Mass. App. Ct. 528, 534 (2009).
Here, the only factors that weigh toward reasonable suspicion are the fact that the juvenile repeatedly looked over his shoulder while walking and the fact that he twice tapped the bottom of his backpack. These observations alone were insufficient to provide justification for the stop. While looking around may be considered suspicious behavior, see Commonwealth v. Anderson, 366 Mass. 394, 400 (1974), and the judge credited Officer Borges's testimony that, based on his training and experience, tapping the bottom of a backpack is consistent with a “security check” for an unholstered firearm,9 more is required for reasonable suspicion. In cases where reasonable suspicion has existed based on nervous or suspicious movements in addition to behavior that in an officer's training and experience is consistent with the illegal possession of a firearm, there has also been some other factor or factors present that bolstered the officer's suspicion. See, e.g., Matta, 483 Mass. at 365-367; DePeiza, 449 Mass. at 371-372. For example, in Matta, where the Supreme Judicial Court observed that the question whether there was reasonable suspicion in that case was close, the defendant not only walked in an unusual manner and adjusted his waistband, which, in the officers’ experience, was consistent with carrying an unlicensed firearm, there was also an anonymous tip, flight, and the fact that the stop took place in a high crime area. Matta, supra. None of those additional factors are present here.
The Commonwealth argues that the police were not required to disregard, in the reasonable suspicion calculus, the fact that the juvenile was with Thompson whom they had a warrant to search for firearms. While the officers were not required to ignore this fact, it added little, if anything, to the officers’ hunch that the juvenile was carrying a firearm. Compare Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010) (affiliation with gang member proper consideration but insufficient by itself for reasonable suspicion). The search warrants were issued based on an observation of Thompson with a rifle -- a type of gun that could not conceivably be neatly concealed inside of a backpack.10 The juvenile's association with someone that the police believed had recently possessed a rifle would not provide them with a reasonable belief that the juvenile was in possession of a different type of gun that had the capability of being concealed at the bottom of a backpack. And notably, at the time of the stop, the police had no knowledge of the juvenile or whether he had any prior history of possessing firearms. See Commonwealth v. Martin, 457 Mass. 14, 21 (2010).
We conclude that, based on the totality of the circumstances here, the police lacked reasonable suspicion to believe that the juvenile was carrying a firearm at the time of the stop. Thus, we reverse the orders denying the juvenile's motions to suppress and for reconsideration.
2. The charges included carrying a firearm without a license, G. L. c. 269, § 10 (a), carrying a loaded firearm without a license, G. L. c. 269, § 10 (n), possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h) (1), assault and battery on a police officer, G. L. c. 265, § 13D, and resisting arrest, G. L. c. 268, § 32B. The juvenile was later indicted as a youthful offender for carrying a firearm without a license, G. L. c. 269, § 10 (a).
3. The Commonwealth and the juvenile stipulated in writing, with the judge's consent, that any appeal taken from the denial of the motion to suppress would be binding on both the delinquency case and the youthful offender case.
4. The documentary evidence at the motion to suppress included video recordings taken from inside the community center, the affidavit in support of the search warrant applications, the search warrant applications, the search warrants, and an index provided by the defense of the times at which certain events were depicted in the video recordings.
5. A pseudonym.
6. Detective Daniel Griffin testified that the officers decided against approaching the juveniles on the street because some of the officers in the unit were caught up in traffic and, ultimately, they believed it would be the safer option and “better for [their] investigation” to approach the juveniles in a confined space. It was not made clear at the motion to suppress hearing how the officers knew that the juveniles were walking to a confined space such as the community center.
7. The Commonwealth argues that, regardless of whether there was reasonable suspicion, the stop here was justified under Commonwealth v. Ramirez, 92 Mass. App. Ct. 742, 745 (2018), where we held that an “officer may temporarily freeze a scene for the limited time reasonably necessary to safely execute an arrest warrant for a person accused of using a firearm in the commission of a violent felony.” We concluded in Ramirez that, under the “narrow circumstances” of that case, public and officer safety concerns justified the minimal intrusion on the defendant's liberty. Id. at 743, 745-746. Those narrow circumstances are not present here and we decline to apply that principle to the circumstances of this case.
8. The motion judge initially found that Thompson also “tapped” the backpack, and considered that fact in determining that there was reasonable suspicion for the stop. However, because no such evidence was elicited at the suppression hearing, on motion to reconsider, the judge found that Thompson had not tapped the backpack, but determined that even without that fact the police possessed reasonable suspicion to stop the juvenile.
9. We note that we have found no cases, nor has the Commonwealth cited any, where the tapping of a backpack or other bag has been considered to be a “security check” for an unholstered firearm. We have found only three cases, all unpublished decisions, where a defendant has been considered to have conducted a security check, and in each of those cases, the defendant touched or adjusted his waist area to ensure that an unholstered firearm was still on his person. See Commonwealth v. Barbosa, 98 Mass. App. Ct. 1112 (2020); Commonwealth v. Harrison, 91 Mass. App. Ct. 1109 (2017); Commonwealth v. Jean, 88 Mass. App. Ct. 1118 (2015).
10. The search warrant affidavit contained no information about the size of the rifle. However, as the juvenile argued in his memorandum in support of the motion to suppress, even assuming that the rifle had a barrel length of sixteen inches -- the shortest it could be to legally be considered a rifle, G. L. c. 140, § 121, -- there would likely be some observable indicia of a rifle from the appearance of the backpack such as a bulge or other odd shape. There was no testimony regarding any odd shape or bulge in the backpack, and, in the video recording from the community center, there does not appear to be one.
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