Recently, in COMMONWEALTH vs. KNOWELL GREENWOOD 78 Mass. App. Ct. 611 (2011) the Appeals court ruled that police improperly searched a subject, but that it was a harmless error as other supporting evidence justified his conviction. The case is a good illustration of using multiple areas of evidence to reinforce a case.
In deciding the court explained its decision stating “A Superior Court judge erred in denying a criminal defendant’s pretrial motion to suppress a show up identification that was conducted on the basis of information yielded by the search of a purse, book bag, and cooler in the defendant’s possession, where, although the judge correctly ruled that police officers’ initial stop of a vehicle in which the defendant was a passenger and the officers’ subsequent exit order were justified by a reasonable suspicion of criminal activity, the pat frisk and search that followed (and led to the show up identification) were not justified, given that the purpose of the search was not to find weapons, and given that the officers lacked any reasonable belief the defendant was armed and dangerous, and where the search was not conducted incident to a lawful arrest, given that the police lacked probable cause to arrest; therefore, the evidence flowing from the information obtained from the unlawful search was the fruit of a poisonous tree.
a. Initial stop and exit order. We agree that Officers Blicker and Murphy possessed a reasonable suspicion of criminal activity sufficient to justify their initial stop of the vehicle and exit order to its occupants. Where police officers have a reasonable, articulable suspicion that a person in a vehicle has committed, is committing, or is about to commit a crime, they may stop that vehicle, issue an exit order, and conduct a threshold inquiry. Commonwealth v. Bostock, 450 Mass. 616 , 619 (2008), citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Though the officers were admittedly uncertain that a specific crime had occurred, their observations to that point were sufficient to raise a reasonable suspicion of criminal activity. It is well established that otherwise innocent conduct, when considered in the aggregate, can give rise to reasonable suspicion. Isaiah I. (No. 2), supra at 823; Commonwealth v. Pagan, 63 Mass. App. Ct. 780 , 782-783 (2005). Here, the defendant matched the caller’s general description of the suspicious individual banging on doors. The responding officers first observed him in possession of the black book bag and paper bag seen minutes earlier in the hallway outside the caller’s apartment, as well as what Officer Blicker described as a lady’s purse. Upon exiting the building, the defendant immediately proceeded to hail an oncoming vehicle, conduct consistent with an attempt to flee the scene. In light of these specific, articulable facts, the judge correctly ruled that the officer’s initial stop was justified.
b. Patfrisk and search. Less certain is the propriety of the officers’ subsequent patfrisk and search of the purse, book bag, and cooler bag. While we concur that the vehicle stop and exit order were justified by the officers’ reasonable suspicion of criminal activity, see Bostock, supra at 619-622 (vehicle stop and exit order may be based on reasonable belief of criminal activity), we are not persuaded that the patfrisk and search were permissible under the circumstances. A Terry-type patfrisk and search, see Terry, supra at 23-27, may be performed only where an officer reasonably believes that the defendant is armed and dangerous. See Commonwealth v. Gomes, 453 Mass. 506 , 512 (2009). See also Commonwealth v. Pagan, 440 Mass. 62 , 68-69 (2003). “While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake.” Gomes, supra, quoting from Commonwealth v. Silva, 366 Mass. 402 , 406 (1974). “[A] search for evidence as opposed to weapons is not authorized by Terry principles.” Commonwealth v. Santos, 65 Mass. App. Ct. 122 , 125 (2005), and cases cited. Officer Blicker’s hearing testimony established that, throughout the course of the investigative stop, the defendant acted in a cooperative manner. He made no furtive gestures, was not hostile towards the officers and did not attempt to flee. When coupled with the officers’ uncertainty regarding the precise nature of the criminal activity afoot, these facts do not give rise to an articulable risk to officer safety.
Officer Blicker admittedly opened the purse in the conscientious exercise of his duties to ascertain the veracity of the defendant’s responses to his questioning. At no point was it his intention to search the purse for weapons. Nor would such an intrusion have been justified in light of our conclusion that the officers lacked any reasonable belief that the defendant was armed and dangerous.
The searches are likewise not sustainable on the alternate ground that they were incident to a lawful arrest. The Fourth Amendment and art. 14 permit a search of a defendant’s person and the area within his immediate control when conducted contemporaneously and incident to a lawful arrest. Commonwealth v. Netto, 438 Mass. 686 , 696 (2003), citing Commonwealth v. Madera, 402 Mass. 156 , 160-161 (1988). The search may precede the formal arrest so long as probable cause to arrest exists independently of the results of the search, Commonwealth v. Washington, 449 Mass. 476 , 481 (2007), and where there is also probable cause to believe that the object searched contains evidence of the crime for which the defendant is being arrested. Netto, supra. “[P]robable cause exists where . . . the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual . . . has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. 238 , 241 (1992), quoting from Commonwealth v. Storey, 378 Mass. 312 , 321 (1979), cert. denied, 446 U.S. 955 (1980). The investigating officer “must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime . . . .’ ” Santaliz, supra, quoting from Commonwealth v. Rivera, 27 Mass. App. Ct. 41 , 45 (1989).
Although the question is a close one, we are constrained to conclude that the police lacked probable cause to arrest the defendant. The initial stop of the vehicle was based primarily on the officers’ belief that the defendant matched the vague description provided by the initial call, and his possession of a woman’s purse. The officers lacked any concrete knowledge that a crime had been committed. Their observations to that point justified nothing more than the initiation of a threshold inquiry. Compare Commonwealth v. Cheek, 413 Mass. 492 , 496 (1992) (no reasonable suspicion where defendant matched description of “black male with a black 3/4 length goose [down jacket]” and was observed in close proximity to reported stabbing in high crime area), and Commonwealth v. Acevedo, 73 Mass. App. Ct. 453 , 458 (2009) (reasonable suspicion where suspects observed in close proximity to scene of armed robbery within minutes of report, one suspect was wearing white sneakers matching description of perpetrators, and suspects were only persons who generally fit description of perpetrators), with Bostock, 450 Mass. at 624-625 (probable cause where defendant observed in vicinity of reported criminal activity within minutes of the crimes, matched descriptions provided by multiple witnesses, and provided implausible answers to police questioning). Although the defendant’s subsequent responses to Officer Blicker’s questions heightened the officer’s suspicion, they did not suffice to elevate that suspicion to probable cause. The defendant’s justification for his possession of the purse, while suspect, was not wholly implausible, particularly in light of the absence at that point in time of any report of theft at 1396 Dorchester Avenue. See Commonwealth v. Watson, 430 Mass. 725 , 733-734 (2000), quoting from Commonwealth v. Riggins, 366 Mass. 81 , 88 (1974) (“[i]mplausible answers to police questions will, with other facts, support a finding of probable cause to conduct a search . . .”). Though under the circumstances the police conduct was far from egregious, the fact remains that the officers harbored nothing more than a reasonable suspicion of criminal involvement, thus the decision to open the purse, the black book bag, and the cooler bag was improper under our cases. See Commonwealth v. Levy, 76 Mass. App. Ct. 617 , 621 (2010). Accordingly, the contents of these bags must be suppressed.
e. Harmless error. Having concluded that numerous pieces of evidence were the fruit of an unlawful search and seizure and should therefore have been suppressed, we must now determine whether their erroneous admission was “harmless beyond a reasonable doubt.” Commonwealth v. Tyree,455 Mass. 676 , 700 (2010), quoting from Chapman v. California, 386 U.S. 18, 24 (1967), and cases cited. When undertaking this analysis the essential question is “whether the record establishes ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Commonwealth v. Peixoto, 430 Mass. 654 , 660 (2000), quoting from Chapman, supra. “The inquiry cannot be merely whether there was enough [evidence] to support the result, apart from the phase affected by the error.” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437 , 445-446 (1983), quoting from Kotteakos v. United States, 328 U.S. 750, 765 (1946). “[I]t is not enough for the Commonwealth to demonstrate that its other, properly admitted evidence was ‘sufficient’ to convict the defendant or that the inadmissible evidence was ‘consistent’ with the admissible evidence.” Tyree, supra at 701, quoting from Commonwealth v. Dagraca, 447 Mass. 546 , 554- 555 (2006).
The crux of the defense was misidentification; the Commonwealth’s case can be characterized as very strong, tainted evidence notwithstanding. Officer Blicker testified to observing the defendant at the scene of the crime, in possession of a woman’s purse that the victim subsequently identified as belonging to his wife. The defendant appeared to be fleeing the scene, and he could not justify his presence at 1396 Dorchester Avenue when confronted by police. Most damning by far is the testimony of the victim, who recounted the robbery and attack in detail, and identified the defendant with certainty at trial as his assailant. Our task is to determine whether this evidence was sufficiently “powerful as to neutralize the erroneously admitted” evidence. Dagraca, supra at 555 (citations omitted).
We conclude that the victim’s detailed and unrefuted testimony, his identification of his attacker and of his wife’s purse, which was found in the defendant’s possession by the officers, renders the inadmissible evidence harmless beyond a reasonable doubt. Simply stated, the admissible evidence relating to identification, on which the defense was exclusively based, was overwhelming. It was so powerful that it neutralized the tainted evidence, which was no more than duplicative on this issue. Accordingly, the admission in evidence of the showup identification and other fruits was harmless beyond a reasonable doubt.”
Attorney Ronald A. Sellon