Opinion
20-P-871, 20-P-1153
03-28-2022
COMMONWEALTH v. Alante’ BROWN (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These appeals involve the denial of motions to suppress evidence seized from the defendant Alante’ Brown. Both defendants submitted conditional plea agreements on January 29, 2020, pleading guilty to unlicensed possession of a firearm that was loaded, in violation of G. L. c. 269, §§ 10 (a ) and (n ). The facts are taken from the detailed findings issued by the motion judge following a hearing on the motion to suppress. There is also video evidence of the interactions between the police and defendant Brown which we are in as good a position as the motion judge was to assess, and which we have reviewed. Our references to what can be seen on the video are based on our own independent review. Based on our review of the materials before us, we affirm the order of the motion judge denying the defendants’ motions to suppress.
Andrews has automatic standing because he was charged with possessing the evidence seized from Brown. See Commonwealth v. Amendola, 406 Mass. 592 (1990). Although the appeals of Brown and his codefendant appellant Andrews have not been consolidated, we are deciding them both in this single opinion because the cases were joined for trial after each defendant filed a motion to suppress, a judge issued one order on both motions, and both appeals relate to that same order.
Facts. In mid-June of 2019, Massachusetts State Police Trooper Keith Ledin was parked in front of the New Bedford District Court when he observed a group of four men walking together back and forth between the courthouse and a white Honda parked on the street. Defendant Andrews appeared to be the leader of this group, and one of the members of the group was wearing a T-shirt that contained a tribute to a young man who was a member of the United Front gang, and who had been murdered a couple of years before. Ledin observed Andrews's group interacting with another group in a manner that was not particularly friendly, and that led him to conclude that the groups knew each other but were not friends.
At one point, Ledin observed Andrews walk down the street to a corner across from the driveway entrance to the courthouse, where he met up with the defendant Brown. Brown was wearing a green bandana across his forehead; Ledin was aware that, since the death of the young man (who had lived in a green house), United Front gang members wore green as their gang color. See Commonwealth v. Garcia, 443 Mass. 824, 834 (2005) (display of gang colors is fact indicating gang membership).
Andrews beckoned Brown to accompany him, and they walked to a Nissan Altima parked behind the white Honda. Andrews opened the rear passenger door on the driver's side of the Altima and handed something to Brown. Ledin saw Brown holding in his hands "what appeared to be a fanny pack," a gray and black bag with a belt. Brown lifted up his sweatshirt, tucked it under his chin, pulled the fanny pack around his waist so the belt buckle was in the front, fastened it tightly, immediately shifted the pack to his back, and pulled his sweatshirt down, covering the fanny pack. Through his training and experience, Levin was aware that individuals engaged in crime sometimes hide firearms in fanny packs, and that, when they do so, they fasten the fanny pack tightly to prevent the firearm from being disturbed. Consistent with the characteristics of an armed gunman as described by Ledin, Brown adjusted and checked the fanny pack at least two times while crossing the street. The video evidence shows him checking the fanny pack at least one additional time. Brown walked to the courthouse and positioned himself with his back against its exterior wall.
Ledin contacted Officer Lorenzo Gonzalez, a member of the New Bedford police department's gang unit, and shared what he had seen. Gonzalez arrived on the scene and recognized Brown as a member of the United Front gang. He also recognized a number of the other young men outside the courthouse as gang members, some associated with the United Front and some from other gangs, including the South First Street Gang, a rival gang of the United Front. Gonzalez had arrested Brown approximately a year earlier, ultimately using his taser on Brown during the arrest because Brown physically refused to cooperate. Gonzalez knew that Brown did not have a license to carry a firearm.
Gonzalez and another New Bedford police officer, Detective DeCunha, approached Brown from opposite sides. As DeCunha got closer to Brown, he said, "Hey, Alante’," and reached out to Brown's shoulder in an attempt to grasp him. Brown pulled away, turned to flee, and ran directly into Officer Gonzalez. Gonzalez brought Brown down to the ground. Numerous other law enforcement and security personnel from inside and outside the courthouse converged on Brown and Gonzalez, piling on top of them. New Bedford police officer Nelson Goncalves grabbed the fanny pack and yelled that it contained a gun. Brown and Andrews were placed under arrest.
Discussion. The defendants argue that the seizure of Brown and the fanny pack violated the Fourth Amendment to the United States Constitution and article 14 of the Massachusetts Declaration of Rights.
To begin, the defendants argue that the police lacked reasonable suspicion that Brown was armed and dangerous sufficient to warrant a stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968). We think that, on all the facts and circumstances described in the testimony credited by the motion judge, there were articulable facts supporting reasonable suspicion that Brown was armed and dangerous.
Brown was a known gang member wearing gang colors, which, according to Ledin's training and experience, meant Brown was carrying out gang activities. Brown was in a setting in which two rival gangs were present, and in which members of his own gang were interacting with others in an unfriendly manner. Brown obtained a fanny pack from Andrews that he put on and then checked in a way that, again based on Ledin's training and experience, suggested Brown was carrying a firearm. The police were also aware that Brown was not licensed to carry a firearm.
Although all the facts and circumstances do not provide probable cause to believe Brown was carrying an illegal firearm, they do give rise to reasonable suspicion that a crime was afoot, and that Brown was armed and dangerous, such that the police were warranted in taking the further steps of stopping and pat frisking Brown in order to confirm or dispel their reasonable suspicion.
The defendants next argue that the initial seizure of Brown, which the motion judge correctly concluded occurred when Detective DeCunha reached out to grab Brown's shoulder, amounted to an unlawful arrest rather than a permissible investigatory stop. We disagree. As has been frequently observed, an investigatory stop involves a deprivation of liberty. Indeed, the archetypal patfrisk described in Terry itself involved grabbing the suspect and spinning him around so that the officer could pat frisk him. Terry, 392 U.S. at 7. Although the defendants describe DeCunha's actions as a "lunge" toward Brown, having viewed the video, we conclude that the way in which he reached for Brown's shoulder, however described, did not amount to an arrest that was outside the bounds of a permissible investigatory stop.
The defendants argue next that, because a large number of police ultimately subdued Brown in order to effectuate the patfrisk, what might have started as a lawful investigatory stop became, prior to the completion of the patfrisk, an unlawful arrest requiring suppression of the firearm ultimately found in Brown's fanny pack.
To the extent this argument depends upon a conclusion as a matter of fact that Brown simply fell backwards as a result of the attempt by DeCunha to grab his shoulder rather than was attempting to flee, we think the motion judge's factual finding that Brown did attempt to flee is adequately supported on this record. We have viewed with some care the videotape of the encounter. Although it seems that Brown did fall backwards initially, the video, although not perfectly clear, suggests that Brown then pivoted and attempted to run away from DeCunha. Given Officer Gonzalez's testimony that that is what happened, we think that there is sufficient support in the record for the finding that Brown attempted to flee and did not merely fall backwards.
The defendants argue that, even if Brown attempted to flee, the response of the many officers on the scene turned what had been an investigatory stop into a full-blown arrest. In Commonwealth v. Williams, 422 Mass. 111, 118 (1996), the defendant fled when an officer attempted lawfully to subject him to a patfrisk. In that case, the officer and his partner gave chase, brought the suspect down to the ground, and handcuffed him in order to complete the patfrisk. Id. Given the facts and circumstances, including that the suspect had attempted to escape the lawful stop and avoid the lawful patfrisk, the court concluded that, despite the complete deprivation of liberty undertaken by means that in some circumstances certainly could accompany a full-blown arrest, the interaction had not escalated from a lawful investigatory stop into an unlawful arrest because it "was limited in duration and necessary to complete the inquiry." Id. at 119.
In this case, although many more officers were available and assisted in preventing Brown from fleeing so that the patfrisk could be completed, Brown was deprived of his liberty to the same degree as the defendant in Williams, i.e., only for the time it took to complete the patfrisk of his fanny pack. No firearms were drawn by the police, nor were any means of stopping Brown used beyond holding him on the ground. In these circumstances, where the force used was in response to Brown's attempt to flee and avoid the lawful stop and patfrisk, we think the analysis is controlled by Williams, and we conclude, as the court did in that case, that the investigatory stop did not escalate into an arrest.
Finally, the defendants argue that the discovery of the firearm in the fanny pack was the result of an unlawful search because the Commonwealth did not call Officer Goncalves to testify at the hearing on the motion to suppress that he felt the handgun while the fanny pack remained closed, which is permitted as part of a patfrisk based on reasonable suspicion, see Commonwealth v. Amado, 474 Mass. 147, 153 (2016), rather than discovering it by impermissibly opening the fanny pack and looking inside.
It is true that Goncalves himself did not testify. However, Officer Gonzalez testified that Goncalves said "gun" upon feeling the fanny pack and only later unzipped the fanny pack in order to retrieve the gun. The motion judge permissibly found that the fanny pack was only unzipped subsequent to Brown's arrest, "draw[ing] the inference that Goncalves felt a gun when he grabbed the fanny pack" because he yelled "Gun, gun gun" and opened the pack to search it.
To be sure, the evidence at the motion hearing included hearsay testimony of Detective DeCunha, and some of it was given in response to a leading question. But no objection was raised at the hearing, and so DeCunha's statements were in evidence and could properly be utilized to support the judge's finding. Moreover, the video evidence shows Goncalves pulling the fanny pack out from the pile of people on the ground and holding it up for an extended period of time. This would have included the time during which Goncalves concluded the fanny pack contained a gun and yelled to his colleagues that it did. During this entire interaction, the fanny pack Goncalves is holding appears to be unopened. Indeed, the video indicates that the fanny pack was never opened at any time prior to the completion of Brown's arrest. Consequently, the evidence supports the motion judge's conclusion that the gun was discovered through feeling the outside of the fanny pack, without the need for further manipulation, rather than through the unlawful opening and visual examination of the inside of the fanny pack. Commonwealth v. Wilson, 441 Mass. 390, 398 (2004).
Consequently, we conclude that the motions to suppress evidence were properly denied.
Order denying motions to suppress affirmed.