Commonwealth v. Johnson

At issue is whether there was reasonable suspicion to stop and frisk the defendant, who did not match the

particularized aspects of the descriptions provided by eyewitnesses who called 911 to report that there had been a

shoot-out on a residential street. The defendant was, however, among the trees in a closed public park well after dark, close to the scene of the crime within minutes of its occurrence, wearing a "hoodie" pulled tightly around his face. In the circumstances presented, as described more fully below, we conclude that the seizure was reasonable and therefore there was no error in the denial of the defendant's motion to suppress.

"On October 19, 2012, the [Lynn police department (LPD)] received eight 911 calls within a four minute span of time, starting at 10:09 pm. Each of the calls related to a 'shots fired' incident on Harwood Street. Several reported hearing the shots fired, but reported no observations of the actual shooting. Those calls could not pinpoint the exact location of the shooting. As many as twelve discharges were reported, involving at least two different weapons. A caller from Harwood Street reported seeing people shooting on that street. He reported the people to include black and/or Spanish, with a shooter observed to run toward Common Street. A caller from 82 Harwood Street reported guys in her backyard shooting guns, but it appeared that her neighbor had actually made the observations. Another caller reported observing shots fired at 66 Harwood Street. He observed the shooter as being a black male, wearing a black jacket and red bandana, shooting at another black male, and then running toward Western Avenue. "The first LPD dispatch occurred at 10:09 pm, reporting two reports of shots fired in the Whiting/Harwood After a bench trial, the defendant was convicted of carrying a firearm without a license, as a second offense, and carrying a loaded firearm. He was sentenced to five to six years in prison, followed by three years' probation. The only issue raised in this direct appeal is the denial of his motion to suppress.

Streets area. At 10:10 pm, dispatch reported a black male, wearing a black jacket, and red bandana, heading toward Western Avenue from Harwood. At 10:12 pm, Officer James McIntyre ('McIntyre') in Car 8 reported himself to be driving along the Commons. Shortly thereafter, and before 10:14 pm, McIntyre reported he had a party with a gun, and gave his location as the Commons near 170 South Commons.

"McIntyre is a twenty-eight year veteran of the LPD. At 10:09 pm on October 19, 2012, he was on the Lynnway near the entrance to the GE plant. He heard the first dispatch about shots fired in the area of Whiting/Harwood Streets, and immediately responded in that direction in his marked cruiser, Car 8. He used his lights and siren to travel the couple of minutes it took to drive from the Lynnway to the Commons. He deactivated his lights and siren as he arrived at the Commons and turned right onto South Commons. He reported his location at the Commons to dispatch at 10:12, less than three full minutes from the first dispatch of shots fired.

"The Commons is a long narrow park area, somewhat in the shape of a fish. It extends eight to ten blocks in length, and is bordered by North and South Common Streets. . . . Harwood Street is one of many streets that runs perpendicular to and ends at North Common[] Street. . . . Although the center of the Commons is largely free of trees and shrubs, each end has numerous trees throughout the park area. There is no artificial lighting within the Commons, and it can be very dark, particularly in the areas of the trees.

"McIntyre observed two females and a male, later identified as Gabriel Smith ('Smith'), inside the Commons. They were opposite 170 South Common[] Street. McIntyre exited his police cruiser and approached the three individuals. He directed Smith to place his hands on the top of his head, to which Smith responded with yelling and screaming. Smith was later determined to be intoxicated and was arrested for disorderly conduct. Although Smith looked to be either a black or Spanish man, McIntyre did not approach further or attempt to pat frisk him. As McIntyre looked to his left, he saw the silhouette of a person walking away from him near the tree area of the Commons, within twenty-five feet of where he was standing. McIntyre used his flashlight to illuminate the individual, and saw him to be a black male, with a gray hoodie pulled tightly around his face. McIntyre saw the man's hands at his sides, and ordered him to place his hands on the top of his head. The man did not comply until McIntyre repeated his order, and then unsnapped his holstered weapon. After his hands were raised, McIntyre approached the man, later identified as [the defendant], and patted him down. McIntyre felt an object he believed to be a handgun in [the defendant's] left front pocket. McIntyre then controlled [the defendant] by means of an arm bar and reported to dispatch that he had a party with a gun on the Commons, near 170 South Common[] Street. [The defendant] was not wearing a black jacket or a red bandana. Dispatch received McIntyre's report just seconds before 10:13 pm, almost exactly three and one-half minutes after the first dispatch about the shots fired incident."

On these facts, the judge denied the defendant's motion to suppress, and held that

"reasonable suspicion existed to conclude that [the defendant] was involved in the shots fired incident on Harwood Street and was armed and dangerous. The court finds the following specific facts persuasive on the issue. Only a very short time (less than three and one-half minutes) had passed from the multiple reports of shots fired on Harwood Street to McIntyre's observations of [the defendant]. [The defendant] was in a closed public park well after dark. [The defendant's] presence among the trees was suggestive of trying to stay hidden from police observation, particularly with police lights and sirens in the area. [The defendant's] hoodie was pulled tightly around his face, also suggestive of a desire to hide or disguise his facial features. The Commons is only a short distance from Harwood Street, easily reached within the time frame established by the record. [The defendant] is a black male, consistent with the most detailed of the eye witness descriptions. A witness said the shooter fled toward Western Avenue, and [the defendant's] location at the far end of the Commons is consistent with leaving Harwood Street and heading through the Commons to Western Avenue."

The judge also stated in a footnote "The fact that [the defendant] was not wearing a black jacket and red bandana does not negate or prevent articulable suspicion from being present. Outer clothing, such as a jacket and bandana, are easily discarded, and probably not uncommon when a person is fleeing a shots fired incident."

Discussion. The defendant argues first that two of the judge's findings are clearly erroneous. The Commonwealth

concedes the point with respect to the finding that the defendant's location in the Commons was "consistent with leaving Harwood Street and heading through the Commons to Western Avenue." Indeed, the evidence (which included a map of the area) admitted during the suppression hearing showed that

Western Avenue is located on one end of Harwood Street and the

Commons is located on the other.2

The Commonwealth does not concede that the judge's finding

that a caller from Harwood Street reported that the shooters

were "people to include black and/or Spanish" was clearly

erroneous. However, the Commonwealth acknowledges that, because

this finding is based entirely on the contents of a recording of

2 The defendant moved for reconsideration based on the erroneous finding. That motion was denied, and the judge's margin endorsement states that

"the direction of travel is only one of several factors relied on by the court -- and from the lower end of Harwood St., the far end of the Commons is consistent with heading toward Western Ave. -- the court did not say or find it was the most direct path or only path to Western Avenue."

In fact, there was no evidence that the defendant was at the "far end of the Commons." Instead, Officer McIntyre placed the defendant opposite 170 South Common Street, and he indicated the location on the map that was admitted in evidence.



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a 911 call, our review is independent and de novo. Commonwealth

v. Thomas, 469 Mass. 531, 539 (2014). We have listened to the

recordings of the 911 calls, as well as the dispatch recordings.

In fact, no single caller reported that the shooters were "black

and/or Spanish." The caller on Harwood Street to which the

judge's finding apparently relates reported that there were

multiple shooters and that they were Spanish and running towards

the Commons. That caller did not report seeing anyone black.

However, another caller did report seeing a black man "shooting

at another black gentleman."

Excluding those two erroneous findings from our

consideration, but adopting the remaining findings, we turn to

"independently determin[ing] whether the judge correctly applied

constitutional principles to the facts as found." Commonwealth

v. Isaiah I., 450 Mass. 818, 821 (2008).

"Pursuant to the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, a 'seizure' occurs when, 'in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.' United

States v. Mendenhall, 446 U.S. 544, 554 (1980). See

Commonwealth v. Stoute, 422 Mass. 782, 785–789 (1996) (adopting

Mendenhall standard for purposes of art. 14). If a suspect was

seized in the constitutional sense, we ask whether the stop was



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based on an officer's reasonable suspicion that the person was

committing, had committed, or was about to commit a crime.

Commonwealth v. Wilson, 441 Mass. 390, 394 (2004), citing

Commonwealth v. Silva, 366 Mass. 402, 405 (1974)." Commonwealth

v. Martin, 467 Mass. 291, 302-303 (2014). Here, that question

is whether, at the moment when he ordered the defendant to put

his hands on his head, Officer McIntyre had a reasonable

suspicion that the defendant had been involved in the shootings

on Harwood Street.3,4 That suspicion had to be based on

objective, specific, and articulable facts. See Commonwealth v.

Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v.

Grandison, 433 Mass. 135, 139 (2001) ("Reasonable suspicion may

not be based on good faith or a hunch, but on specific,

3 Neither party challenges the judge's conclusion that the defendant was seized in a constitutional sense when Officer McIntyre ordered him to place his hands on his head. Nor does the defendant challenge the reasonableness of the patfrisk. His challenge is limited to the reasonableness of the stop. See Commonwealth v. Narcisse, 457 Mass. 1, 6-7 (2010) (stop and frisk must be independently analyzed, even if facts relevant to each occur almost simultaneously).

4 The Commonwealth also argues (as it did in the trial court) that Office McIntyre had a reasonable suspicion that the defendant was committing a criminal trespass in the park, which was closed after dark. The motion judge did not consider this alternate ground, nor did he make any of the findings that would be necessary (such as whether notice of the park's closure and its consequences was posted and, if so, where). We, therefore, do not consider this alternate theory, nor is it necessary to our decision.



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articulable facts and inferences that follow from the officer's

experience. . . . The test is an objective one").

Where, as here, "police officers on the street stop a

defendant in reliance on a police dispatch alone, the stop is

lawful only if the Commonwealth establishes both that the

information on which the dispatch was based had sufficient

indicia of reliability, and that the description of the suspect

conveyed by the dispatch had sufficient particularity that it

was reasonable for the police to suspect a person matching that

description." Commonwealth v. Depina, 456 Mass. 238, 243

(2010). See Commonwealth v. Mubdi, 456 Mass. 385, 395 (2010).

The defendant does not challenge the veracity or reliability of

the 911 callers. And, indeed, having listened to the tape

recordings of the 911 calls, we conclude there would have been

no basis for him to have done so with respect to the two callers

who provided descriptions of the shooters, even though both

callers were anonymous. Both callers were eyewitnesses,

contemporaneously reporting their firsthand observations of an

ongoing crime, and the details and circumstances of their

reports provided sufficient indicia of the callers' reliability.

See generally Commonwealth v. Depina, supra at 243-244.

But the particularity of the callers' descriptions is a

separate question. "To make an investigatory stop based solely

on a physical description, the description need not be so



9

particularized as to fit only a single person, but it cannot be

so general that it would include a large number of people in the

area where the stop occurs." Id. at 245-246. Here, one caller

described the shooters as "Spanish," with nothing more. Another

caller described the shooter as "black," also with no further

detail. Neither of these descriptions was sufficiently

particularized to support reasonable suspicion. See

Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (description of

suspect as "black male with a black 3/4 length goose" jacket not

sufficiently particularized to support reasonable suspicion).

Another caller described the shooter as a black man wearing a

black jacket and a red bandana who went in the direction of

Western Avenue. Regardless of whether this is a sufficiently

particularized description, it could not support reasonable

suspicion in this case because the defendant did not match it

except with respect to his race. He wore neither a black jacket

nor a red bandana, and he was stopped in a location opposite the

direction of Western Avenue. As the officer himself candidly

admitted when questioned by the judge at the suppression

hearing, nothing connected the defendant to the shooting other

than being a black or Hispanic male.5

5 The court: "What, if anything, did you observe, Officer, that connected the man by the trees to the shooting reported by dispatch?"



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That said, in the immediate aftermath of a shooting, even

where there is no particularized description of the suspect, the

police may nonetheless stop someone when circumstances make the

seizure reasonable under the Fourth Amendment and art. 14. See

Commonwealth v. Depina, 456 Mass. at 247 ("The gravity of the

crime and the present danger of the circumstances may be

considered in the reasonable suspicion calculus"). See also

Commonwealth v. Grant, 57 Mass. App. Ct. 334, 339 (2003). Such

circumstances exist here. The police had several reliable

reports of a gunfight at night on a residential street,

involving multiple people fleeing on foot in separate

directions. At least one person was wounded. The immediacy of

the gunfight, its occurrence in a residential neighborhood, and

the participation by multiple shooters who dispersed in

different directions made this a public safety emergency. One

group involved in the shootings was reported to have fled in the

direction of the Commons, a public park that, at that time of

night, was closed. The defendant was observed in the Commons

three and one-half minutes after the shootings, not far from

Harwood Street. The defendant's position and clothes suggested

a desire to conceal himself: he was standing among the trees in

the unlit interior of the park, wearing a hoodie "tightly"

The witness: "Other than being a black or Hispanic male, nothing really. Just stood out. No bandana or nothing like that."



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pulled around his face. In these circumstances, Officer

McIntyre had a reasonable suspicion to justify an investigatory

stop of the defendant. "Physical proximity, closeness in time,

the defendant's [efforts to conceal himself], and the danger to

public safety supplemented the less than distinctive physical

description relayed in the police dispatch. Taking these

elements together, we conclude that, at the time of the Terry

stop [see Terry v. Ohio, 392 U.S. 1 (1968)], [Officer McIntyre]

had a reasonable suspicion that the defendant had been involved

in the shooting." Commonwealth v. Depina, 456 Mass. at 247.

See Commonwealth v. Stoute, 422 Mass. at 791, quoting from

United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994) ("test for

determining reasonable suspicion should include consideration of

the possibility of the possession of a gun, and the government's

need for prompt investigation").

Accordingly, the judge did not err in denying the defendant's motion to suppress.