Com v. Greenwood

Commonwealth v. Knowell Greenwood

Massachusetts Court of Appeals
January 20, 2011

Docket No. 09-P-379.

Kidnapping, Breaking and Entering, Robbery, Practice, Search and Seizure.

The defendant was indicted on five separate counts as a habitual offender. Prior to his trial he filed a motion to suppress a pretrial identification as well as a motion to suppress an in-court identification. Both motions were denied and the Commonwealth introduced the evidence at trial. The defendant was convicted of kidnapping, breaking and entering, and the lesser included offense of unarmed robbery. On appeal the defendant contended that it was error to deny his pretrial motions, among other claims of error. The Court determined that even though the arresting officers’ initial search of the defendant’s possessions was not supported by probable cause, but that the admission of the evidence was harmless, and the other claims of error were rejected, the conviction was to be affirmed.

Facts

On October 9, 2004, at approximately 11:30 a.m., a resident of 1396 Dorchester Ave. called the Boston Police Department to report that two black males were banging on doors in his building. Officers Charles Blicker and Patrick Murphy responded in an unmarked police cruiser and parked fifty feet away from the apartment building’s front entrance. They went to the second floor to speak with the caller and on their way saw a black book bag and a paper bag with a partially-filled bottle of beer in the hallway. The caller stated that he did not know either of the two individuals that he’d seen, but one of them had braided hair. He also said that the items in the hallway had appeared recently and did not belong to him.

The officers did not observe any suspicious activities or individuals. Leaving by the back entrance, they saw several pieces of broken glass on the ground, which was from a third-floor window. They continued toward their cruiser in order to watch the front entrance. Right before reaching their vehicle, Officer Blicker saw a black male with braids, later identified as the defendant, exiting through front door. He was carrying the black book bag and beer bottle that had been in the hallway. He was also carrying a cooler bag and a woman’s beige purse. The man walked into Dorchester Avenue, waved down a Pontiac Grand Am and got into the passenger’s side of the car. The officers immediately pursued the vehicle with their cruiser, pulling it over within 100 feet of the apartment complex.

The driver of the car said he did not know the defendant and was just giving him a ride. Officer Blicker removed the defendant from the vehicle, pat frisked him, and, upon determining the defendant was unarmed, questioned him regarding his activities at 1396 Dorchester Ave. The defendant was slightly inebriated and did not give an understandable answer. When asked about the beige purse, the defendant said it belonged to his grandmother; however, a prescription pill bottle discovered inside the purse that listed its address as 1396 Dorchester Ave. caused the officers to handcuff the defendant.

Officer Antonio DiMaggio then arrived, who conducted a search of the black book bag and found more prescription pill bottles with the victim’s name and the address of 1396 Dorchester Ave. Officer DiMaggio went in search of the victim and upon arriving at the apartment found the door ajar. The officer found the victim inside, who was disheveled and said that he had just been robbed by a black male with “dread locks”. The victim said that the robber had choked him, placed him in a closet and threatened to kill him if he emerged. He had tried to contact the police but his phone wires had been ripped out of the wall. The victim accompanied Officer DiMaggio to do a showup identification and recognized the defendant immediately. He also identified several items in the defendant’s possession as his own.

The motion judge found the search of the purse and the defendant’s detainment to be reasonable extensions of the initial stop. The judge also held that the showup identification was necessary and not suggestive or unnecessary. Thus the judge denied the defendant’s motions to suppress and found the showup identification to be admissible.

Issue 1: Should the evidence obtained by the officers have been suppressed?

The defendant claimed that the officers did not have reasonable suspicion for the initial stop and therefore had no probable cause to search him. As such, all of the evidence subsequently obtained should have been suppressed, as they were the product of an unlawful search and seizure.

A.) The Initial Stop and Exit Order

The officers had reasonable suspicion of criminal activity that justified their initial stop and exit order. Even though they were not sure if a crime had occurred, they still had a reasonable suspicion. When otherwise innocent conduct is viewed as a whole it can give rise to such impressions. The defendant matched the caller’s description and the officers saw him carrying the items left in the hallway of the apartment building. Also, the defendant had hailed a vehicle upon leaving the building, which was consistent with attempting to flee the scene. Viewed as an aggregation of evidence, the ruling regarding the initial stop was correct.

B.) Pat frisk and search.

Even though the initial stop and exit order was justified, the pat frisk and search were not permissible. A pat frisk and search, like that in Terry v. Ohio, can only be utilized if the officer believes the defendant to be armed and dangerous, and that the safety of others is at stake, not just to search for evidence. Commonwealth v. Santos, 65 Mass.App.Ct. 122, 125 (2005). As the defendant acted in a cooperative manner, he was not presenting himself as a risk to the officers’ safety. Officer Blicker was not looking through the purse to search for weapons but to answer the questions the defendant would not.

Alternatively, the searches were not valid because 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). Here, the Court concluded that the police did not have probable cause to arrest the defendant. The initial stop was because the defendant matched the caller’s description and also because the defendant was carrying a woman’s purse. Up until that point, the collective observations justified nothing more than a threshold inquiry. The officers only had a reasonable suspicion, not probable cause, and the contents of the bags had to be suppressed.

C.) Showup identification. 

Since the searches of the bags was unlawful, the showup identification and the contact with the victim, was fruit of the poisonous tree and also had to be suppressed.

D.) In-court identification.

The defendant claimed that the victim’s in-court identification was 1.) tainted by the prior showup identification (as he said it was suggestive), and 2.) that even if the victim identified him at trial based on a recollection of the robbery, the in-court identification was also fruit of the poisonous tree and had to be suppressed.

Regarding taint, the Court concluded that the victim’s in-court identification of the defendant was from his own observations during the robbery, which was prior to any police misconduct. Where a prior identification is shown to be unnecessarily suggestive, a subsequent identification is admissible at trial if the Commonwealth can “establish… by 'clear and convincing evidence' that the proffered identification has a source independent of the suggestive confrontation." Commonwealth v. Botelho, 369 Mass. 860, 868 (1976). Judges can consider several factors in a contextual analysis (with each factor being given different weight), such as the extent of the witness’s opportunity to observe the defendant during the crime and the length of time between the crime and the identification. Botelho, supra at 869. Here, the victim was able to observe the defendant for approximately 10 minutes and was able to conclude of his own volition that the defendant was the same person who was in the court room and that conclusion was independent of the showup identification.

Regarding the fruit of the poisonous tree, in-court identifications will be suppressed where the information was procured in violation of the defendant’s Fourth Amendment rights. Here, the victim intended to alert authorities as to the man robbing his apartment but was unable to because his phone lines had been cut. The victim’s identification in court was not made possible only by the unlawful search. The defendant is not himself a suppressible “fruit.” Therefore, this identification was not fruit of the poisonous tree.

E.) Harmless error.

Many pieces of evidence should have been suppressed but their admission was harmless beyond a reasonable doubt. The inquiry should be “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). Even with the tainted evidence, the Commonwealth still had a strong case. The purse belonged to the victim’s wife and the defendant could not justify why he was present at 1396 Dorchester Ave. Furthermore, there was testimony by the victim, who discussed the robbery in detail and was able to identify the defendant. These neutralized the effect of the inadmissible evidence and rendered it harmless beyond a reasonable doubt.

Issue 2.) Additional claims. 

The defendant’s assertion of duplicative claims was found to be baseless. Even when applying the elements-based doctrine of merger, each of the charges was found to be separate from the others.

Judgments affirmed.

–Prepared by JWK.