COMMONWEALTH v. ABEL A., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After observing the juvenile and a companion running away from the direction of the apparent discharge of a firearm, the police ordered them to stop. The juvenile filed a motion to suppress the firearm seized as a result of the stop, contending that his proximity to the reported gunshots alone did not provide reasonable suspicion that he had committed a crime. We agree. Accordingly, we reverse the order denying the motion to suppress.2
Background. We summarize the facts as found by the motion judge, supplemented with the uncontroverted testimony of the Commonwealth's sole witness, Boston Police Officer Kevin Zarnoch, which the judge explicitly credited in its entirety. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
Around 12:30 a.m. on June 2, 2019, Zarnoch and his partner were on patrol driving an unmarked police car on West Concord Street in Boston. As the officers approached Al Street, they saw two people, one of whom was later identified as the juvenile, running toward them down the alley from the direction of West Newton Street.3 The officers did not see anyone else running away from West Newton Street or down West Concord Street, but other people were getting in and out of cars and walking in the neighborhood. A few seconds later, the “ShotSpotter” in the officers’ vehicle reported “shots fired” at a location on West Newton Street near its intersection with Al Street. The officers did not hear the gunshots or receive any radio calls reporting shots fired in the area.
The officers exited their vehicle and started jogging up the alley toward the two individuals, who were no longer in view. When the officers reached the corner of Newland Place, about twenty or twenty-five feet from West Concord Street, they spotted the juvenile and his companion, who were “now at more of a walking pace.” Officer Zarnoch's partner yelled, “Stop, police.”4 The juvenile began to run, and the officers gave chase. The officers soon caught up to the juvenile, ordered him to the ground, and performed a patfrisk; they found a small firearm in his sweatshirt pocket.
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․ [We, however,] review independently the application of constitutional principles to the facts found.” Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
“The analysis of the constitutional propriety of the police officers’ conduct focuses on two questions: (1) whether and when the defendant was seized in a constitutional sense; and (2) whether the facts known to the police at the time of the seizure establish reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime.” Meneus, 476 Mass. at 234. All agree that the officers seized the juvenile in a constitutional sense when Officer Zarnoch's partner yelled, “Stop, police.” See Commonwealth v. Evelyn, 485 Mass. 691, 703-704 (2020); Commonwealth v. Franklin, 456 Mass. 818, 822 (2010). The only remaining question is whether facts present before the stop order established reasonable suspicion that the juvenile had committed, was committing, or was about to commit a crime. See Commonwealth v. Depina, 456 Mass. 238, 242 (2010).
Reasonable suspicion “must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ ” Meneus, 476 Mass. at 235, quoting Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). It “is measured by an objective standard, ․ and the totality of the facts on which the seizure is based must establish ‘an individualized suspicion that the person seized by the police is the perpetrator’ of the crime under investigation.” Meneus, supra at 235, quoting Commonwealth v. Warren, 475 Mass. 530, 534 (2016).
The officers presumably ordered the juvenile to stop because they believed he had fired the gunshots reported by the ShotSpotter. But the only relevant fact known to the officers before they stopped him was his proximity to a reported shooting.5 The officers lacked the individualized suspicion necessary to justify the stop order.
Facts that commonly contribute to reasonable suspicion in similar cases are absent or not applicable here. The police did not have a description of the person or persons who allegedly fired the shots or any knowledge of their movements following the shooting. Compare Depina, 456 Mass. at 246. Contrast Commonwealth v. Privette, 100 Mass. App. Ct. 222, 229 (2021). They did not observe any behavior prior to the seizure that would indicate the juvenile was carrying a firearm or trying to conceal one. Contrast Evelyn, 485 Mass. at 708; DePeiza, 449 Mass at 371-372; Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 221 (2021). The juvenile and his companion were not the lone pedestrians in the vicinity of the shooting. Contrast Privette, supra at 232.
The judge relied in part on “the juvenile's suspicious behavior of avoiding police contact.” Although attempts to avoid police contact prior to the seizure may factor into the reasonable suspicion calculus, see Commonwealth v. Grandison, 433 Mass. 135, 139-140 (2001), the judge relied on this factor in error. The evidence does not support the factual finding that the juvenile attempted to evade the police by turning on to Newland Place. See note 3, supra. Zarnoch testified that the juvenile had turned on to Newland Place without making eye contact with the officers and before the officers left their cruiser and proceeded on foot in the juvenile's direction. In addition, the officers were in plainclothes and driving an unmarked car, further undermining any suggestion that the juvenile was attempting to evade the police before the stop.
Finally, the alleged “high crime” nature of the area could not support reasonable suspicion. Zarnoch testified that he had made two arrests for firearms in the four and one-half years that he had been assigned to the area, as well as some arrests for drugs and “domestics,” and that he had knowledge of “other firearm arrests that might have been conducted in this area.” This hardly describes a high crime area. Even if the evidence did support the characterization, the “high crime” nature of an area cannot be considered where, as here, it had no “ ‘direct connection’ with the defendant or the shooting at issue.” Evelyn, 485 Mass. at 709.
Without these factors, the police were left with only the juvenile's proximity to a recent reported shooting. That is not enough. Although “geographic and temporal proximity to a recent crime,” especially a serious crime like a shooting, “weigh toward reasonable suspicion in the over-all analysis,” the juvenile's “proximity to a recent shooting was not sufficient alone to establish reasonable suspicion.” Evelyn, 485 Mass. at 704-705. That the juvenile was running away from the area of a recent alleged shooting did not suggest that he had committed a crime, as opposed to being a victim, a witness, or an entirely uninvolved passerby running to get out of harm's way. See Commonwealth v. Cheek, 413 Mass. 492, 496 (1992). Because the police lacked reasonable suspicion to order the juvenile to stop, the motion to suppress should have been allowed.
Orders denying motion to suppress and motion for reconsideration reversed.
2. Following the denial of the juvenile's motions to suppress and for reconsideration, the juvenile tendered a conditional plea of delinquent by reason of possession of a firearm and ammunition without a firearm identification card, G. L. c. 269, § 10 (h) (1); receiving a firearm with a defaced serial number, G. L. c. 269, § 11C; discharge of a firearm within 500 feet of a building, G. L. c. 269, § 12E; and malicious destruction of property, G. L. c. 266, § 127. See Commonwealth v. Gomez, 480 Mass. 240, 252 (2018); Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019).
3. West Concord Street and West Newton Street run parallel to each other, about two city blocks apart. Al Street is “a small little street ․ almost like an alley,” connecting them.
4. The motion judge's initial finding that the juvenile and his companion turned down Newland Place after being ordered to stop, and his subsequent finding that “they changed direction and continued running down another street off the alley” after the order, directly contradict Officer Zarnoch's testimony. The Commonwealth conceded at oral argument that the juvenile had already turned the corner and was walking down Newland Place by the time the officers started jogging in his direction.
5. We assume the reliability of the ShotSpotter information solely for the purposes of this decision.
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