On May 17, 2010 in COMMONWEALTH vs. MESSIAH FRANKLIN 456 Mass. 818 (2010) the SJC reversed the allowance by the Appeals Court of the motion to suppress of a firearm and ammunition found on the defendant.
In reviewing the facts of case the court stated “The judge’s sparse findings are as follows. At approximately 6:40 P.M. on November 18, 2006, four police officers of the youth violence strike force were patrolling the Harmon Street area in the Mattapan section of Boston, which had been identified by police as a high crime area. The officers were in an unmarked Ford Crown Victoria automobile usually recognized in this area as an “unmarked police car.” The officers observed two young black males talking in front of 43 Harmon Street. None of the officers knew either of the men. As the police car approached the two men, one of them, the defendant, looked at the car, stopped talking, and began “looking around.” The police car stopped; immediately after that, the defendant “took off running” down Harmon Street away from the police car. [FN2] One of the officers said, “He’s running,” and three of the officers got out of the car, with two of them running after the defendant. As they ran, the two officers saw the defendant holding his hand to his waist. Based on their experience and training, they both concluded that he had contraband, probably a weapon, in his waistband.
The defendant ran toward a six foot tall stockade fence. Both officers saw him throw an item over the fence and they both heard a metallic sound when the item hit something “hard like cement or asphalt on the other side of the fence.” The defendant was stopped by the officers as he attempted to climb over the fence. He was brought to the ground and handcuffed. One of the officers looked over the fence and saw a handgun on the asphalt. The weapon in question was seized from that location.
In Commonwealth v. Stoute, supra at 789, citing 4 W.R. LaFave, Search and Seizure § 9.3(d), at 127-128 (3d ed. 1996), we said that “a pursuit, which, objectively considered, indicates to a person that he would not be free to leave the area . . . without first responding to a police officer’s inquiry, is the functional equivalent of a seizure, in the sense that the person being pursued is plainly the object of an official assertion of authority, which does not intend to be denied, and which infringes considerably on the person’s freedom of action.” In that case, we rejected, for purposes of art. 14 of the Massachusetts Declaration of Rights, the analysis of the United States Supreme Court, pertaining to the Fourth Amendment to the United States Constitution, that appeared in California v. Hodari D., 499 U.S. 621, 624 (1991). See Commonwealth v. Stoute, supra at 786-789. In California v.Hodari D., supra, the Court concluded that a person who does not acquiesce to a lawful show of authority, and flees, is “seized” for purposes of the Fourth Amendment only when the police actually lay hands on and detain him. We adhere to our conclusion in Commonwealth v. Stoute,supra at 789, that a seizure for art. 14 purposes may be effectuated by police conduct that falls short of the physical detention of the suspect. See id. at 790 (seizure likely occurred when police left *822 cruiser and chased defendant who twice had refused requests that he stop and speak to them). In our cases, we have clarified the circumstances in which police pursuit of an individual sufficiently indicates that the person pursued is not free to leave, so that a seizure in the constitutional sense has occurred.
Specifically, we have held that the police may follow in a cruiser someone whom they observe engage in suspicious conduct to further their investigation, see Commonwealth v. Grandison, 433 Mass. 135, 138 (2001), and cases cited (following person in cruiser for surveillance purposes without use of blue lights, flashers, or sirens is not seizure), and that following a person, presumably at a rate of speed sufficient to keep him in sight, does not amount to a seizure absent some additional assertion of authority, by direct verbal communication (“stop”) or otherwise (blocking, use of flashers). See Commonwealth v. Battle, 365 Mass. 472, 475 (1974) (when two persons ran into building in “apparent response” to approaching police car, police “had the right — if not the duty — to conduct further visual investigation while the two persons remained in public view”). See also Commonwealth v. Lopez, supra at 612 n.2 (2008) (no seizure where police followed defendant but did not issue any orders, block him from leaving, activate cruiser’s blue lights, or pursue him after he rebuffed request to talk). Compare Commonwealth v. Depina, ante 238, 242 (2010) (three officers wearing “Gang Unit” shirts, emerging from single vehicle, “clos[ing] in” on suspect even after he reversed direction to avoid them, and asking suspect to “come over here” constituted seizure); Commonwealth v. Barros, supra at 174-176 (action of police in following defendant in cruiser, leaving vehicle, approaching defendant, demanding to speak with him, and telling him, “Come here,” sufficiently compulsory to constitute seizure); and Commonwealth v. Smigliano, 427 Mass. 490, 491-492 (1998) (activating cruiser’s blue lights constituted seizure), withCommonwealth v. Rock, 429 Mass. 609, 611-612 (1999) (following defendant in unmarked cruiser without activating sirens or blue lights, stopping and leaving cruiser, and asking to speak with defendant briefly not seizure). See, to the same effect, Commonwealth v. Watson, 430 Mass. 725, 731 (2000).
The line we have attempted to draw is fact specific. Here, the defendant’s flight was not prompted by anything the police did and, indeed, began before the officers got out of their vehicle. There was no evidence that the police exercised any show of authority or commanded the defendant to stop. See Commonwealth v. Grandison, supra at 138. Nor did they block or impede his path. See Commonwealth v. Sykes, 449 Mass. 308, 313 (2007). Accordingly, the judge’s conclusion that the defendant was seized when the police left their vehicle and began to run after him was incorrect. See Commonwealth v. Battle, supra at 474-475 (no seizure where police stopped cruiser, got out, and pursued defendants into outer hallway of building).
Thereafter, a seizure did take place when the police grabbed the defendant as he was climbing the fence. By that time, “suspicious conduct [gave] the officer [s] reason to suspect that [he had] committed, [was] committing, or [was] about to commit a crime.” Commonwealth v. Silva, 366 Mass. 402, 405 (1974). “Reasonable suspicion may not be based on good faith or a hunch, but on specific, articulable facts and inferences that follow from the officer’s experience.” Commonwealth v. Grandison, supra at 139, citing Commonwealth v. Watson, supra at 729. Here, according to the judge’s findings, the officers both concluded, based on their experience and training, that when the defendant ran holding his hand to his waist he had “contraband, probably a weapon, tucked into his waistband.” They then saw him throw something over a fence and heard a metallic sound when the item hit something “hard like cement or asphalt.” Clearly, at that point the police had reasonable suspicion, if not probable cause, that the crime of illegally carrying a firearm had been committed.”
Stoute is a bit dated in relating to the definition of when a stop is catagorically undertaken. Commonwealth v. Perry62 Mass. App. Ct. 500 (2004) is more recent and much more clear with respect to what can and cannot be done. The basic question is: was there a “sufficient show of authority” of were the police simply following the individual? The short answer is, an Officers presence in uniform (as intimidating as defense counsel would have people believe) while simultaneously following is not enough.
Attorney Ronald A. Sellon