Commonwealth v. Mark Narcisse, May 27, 2010
457 Mass. 1
stop and frisk; search and seizure; patfrisk; field interrogation observation
The defendant was charged with carrying a firearm without a license and possession of ammunition without a firearms identification card after he was pat frisked by police officers during a consensual encounter. The defendant moved to suppress the firearm, the ammunition, and the statements made to police, claiming that the patfrisk constituted an unlawful stop and seizure by the police under both the Fourth Amendment of the US Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion was denied and the defendant was convicted of all charges. The Appeals Court affirmed his convictions. The SJC reversed. The issue is whether the officers possessed the requisite constitutional justification to seize the defendant after initiating a consensual encounter, as well as the necessary justification to frisk him. A constitutional justification for seizure requires a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous.
On the night of the stop, three police officers were directed to patrol an area considered a “hot spot,” where many recent incidents warranted close scrutiny of local activities. They observed two men walking on the streets. The officers pulled alongside the men and conducted a field interrogation observation, asking the men their names and business in the area. Unsatisfied with their answers, the officers asked them to step onto the sidewalk for further discussion and the men complied. After some conversation, an officer informed them that the officers were going to pat frisk them. The officers recovered a loaded firearm on the defendant’s person.
457 Mass. 1
stop and frisk; search and seizure; patfrisk; field interrogation observation
The defendant was charged with carrying a firearm without a license and possession of ammunition without a firearms identification card after he was pat frisked by police officers during a consensual encounter. The defendant moved to suppress the firearm, the ammunition, and the statements made to police, claiming that the patfrisk constituted an unlawful stop and seizure by the police under both the Fourth Amendment of the US Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion was denied and the defendant was convicted of all charges. The Appeals Court affirmed his convictions. The SJC reversed. The issue is whether the officers possessed the requisite constitutional justification to seize the defendant after initiating a consensual encounter, as well as the necessary justification to frisk him. A constitutional justification for seizure requires a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous.
On the night of the stop, three police officers were directed to patrol an area considered a “hot spot,” where many recent incidents warranted close scrutiny of local activities. They observed two men walking on the streets. The officers pulled alongside the men and conducted a field interrogation observation, asking the men their names and business in the area. Unsatisfied with their answers, the officers asked them to step onto the sidewalk for further discussion and the men complied. After some conversation, an officer informed them that the officers were going to pat frisk them. The officers recovered a loaded firearm on the defendant’s person.
The SJC began by determining when the defendant was seized. This determination is fact-specific, and “not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification.” Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). Field interrogation observations, as seen in this case, are consensual encounters because the individual approached remains free to terminate the conversation at will. Once the officers told the defendant that they intended to pat frisk him, they seized his person within the meaning of the Fourth Amendment and art. 14.
The SJC next turned to whether the officers possessed the requisite constitutional justification to seize the defendant after initiating a consensual encounter, as well as the necessary justification to frisk him. See Terry v. Ohio, 392 U.S. 1, 30 (1968); Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). A stop and frisk is constitutionally permissible if two conditions are met. (1) The investigatory stop must be lawful. In an on-the-street encounter, this condition is met if the police officer reasonable suspects that the person apprehended is committing or has committed a criminal offense. (2) To escalate from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
In the case at hand, the defendant did not manifest behavior that indicated that he was engaged in criminal activity or that he was armed and dangerous. Nothing connected the men to earlier incidents in the area, and the “general environmental factors” identified by the Appeals Court (presence in a high crime area) were not enough to suggest that the defendant was engaged in criminal activity or that he was armed and dangerous. While the facts provided the officers with reason to approach the defendant in a field interrogation observation, nothing provided in the conversation with the defendant or his companion justified an escalation of the consensual encounter into a seizure. Police officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous. Such suspicions need not arise sequentially, and may occur simultaneously.
The SJC held that the Commonwealth did not carry its burden to demonstrate that the police officers’ stop and frisk of the defendant was justified by a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous. Accordingly, the SJC reversed and the order denying the defendant’s motion to suppress was vacated.
The SJC next turned to whether the officers possessed the requisite constitutional justification to seize the defendant after initiating a consensual encounter, as well as the necessary justification to frisk him. See Terry v. Ohio, 392 U.S. 1, 30 (1968); Arizona v. Johnson, 129 S. Ct. 781, 784 (2009). A stop and frisk is constitutionally permissible if two conditions are met. (1) The investigatory stop must be lawful. In an on-the-street encounter, this condition is met if the police officer reasonable suspects that the person apprehended is committing or has committed a criminal offense. (2) To escalate from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
In the case at hand, the defendant did not manifest behavior that indicated that he was engaged in criminal activity or that he was armed and dangerous. Nothing connected the men to earlier incidents in the area, and the “general environmental factors” identified by the Appeals Court (presence in a high crime area) were not enough to suggest that the defendant was engaged in criminal activity or that he was armed and dangerous. While the facts provided the officers with reason to approach the defendant in a field interrogation observation, nothing provided in the conversation with the defendant or his companion justified an escalation of the consensual encounter into a seizure. Police officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous. Such suspicions need not arise sequentially, and may occur simultaneously.
The SJC held that the Commonwealth did not carry its burden to demonstrate that the police officers’ stop and frisk of the defendant was justified by a reasonable suspicion that the defendant was engaged in criminal activity and that he was armed and dangerous. Accordingly, the SJC reversed and the order denying the defendant’s motion to suppress was vacated.
