Opinion
ESCR 2005-1883.
June 19, 2006.
MEMORANDUM OF DECISION AND ORDER
1. Introduction. The defendant Soeun Soeuy is charged with assault with intent to commit murder and assault and battery by means of a dangerous weapon based on the Commonwealth's allegation that he participated in the shooting of Suborn Sam on November 23, 2005. The defendant has filed a pretrial motion to suppress evidence of his identification and the fruits of a subsequent search by means of a warrant. Based on the credible evidence presented at the hearing on the defendant's motion, the court makes the following findings of fact and rulings of law.
2. Findings of Fact. On November 23, 2005, Mr. Suborn Sam was sitting in the front passenger seat of a parked car outside a Little Peach variety store in Lynn. He was with his girlfriend and her friend as well as her friend's young child who was seated behind Mr. Sam. The two women went into the store. Mr. Sam was approached by a group of people including two young men who were "talking trash" and two older men. He knew these people well from school and identified them by their nicknames — Tan and Flip and the defendant, who was known as Playboy. Mr. Sam had had problems in the past with the defendant's older brother. The two younger kids left the area and returned about one minute later in a Honda automobile. The defendant was the driver. Mr. Sam was still seated in the front passenger seat of the parked vehicle. He saw the Honda vehicle pull up beside his vehicle, and come to a stop. The defendant's younger brother was in the front seat and another young man was in the rear. The defendant yelled at Mr. Sam, "You still gang banging; you still using crack." Mr. Sam responded by stating "I don't want any trouble." The defendant then pulled out a handgun and fired it at Mr. Sam. The defendant was about fifty feet away. His vehicle was positioned in such a way that the defendant had to fire the gun across the front seat, past his younger brother and out the passenger side window toward the defendant. As soon as Mr. Sam heard a bang, he ducked. He heard what he assumed to be the bullet strike his vehicle. After firing, the defendant drove away in the direction of downtown Lynn. The sound of the gunshot caused the young child in the rear seat of Mr. Sam's care to wake up. Mr. Sam got out of his vehicle, went inside the variety store to let his girlfriend know what happened and to telephone the police who arrived within several minutes.
3. Officer Peter Panacopolous of the Lynn Police Department was the first responder. Mr. Sam, who officer Panacopolous knows by his nickname, Jello, stated "they wanted me to fight; the kid named Playboy was the driver and shot at me." Mr. Sam further stated that one shot was fired. He described the Honda Accord which the defendant was operating as maroon or purple. There was no tint in the windows of either vehicle and no obstruction between the vehicles. Mr. Sam told the police that the defendant lived only a couple of blocks away and gave the police his address. He said they probably had gone back home. Officer Panacopolous broadcast the information he had received to other officers, including the description of the Honda Accord vehicle as a dark colored sedan, and the suspect's nickname and street address. Shortly thereafter, Officer Panacopolous received a call from Sergeant Vaile who was aware from prior dealings that Mr. Sam was a member of a gang known as the "Asian Boys" and that the defendant and his siblings were members of a rival gang known as the Bloods, and had been to the defendant's home on numerous occasions, went to the defendant's home on a hunch that he would find the defendant and the others there. He drove there and saw a dark colored ("maroon or purple") Honda Accord in the driveway. Sergeant Vaile, who was in a police uniform, got out of his cruiser and felt the vehicle's tailpipe which was still warm. He called for other officers to meet him to look for the defendant.
A few years earlier, A Cripps gang member killed a member of the Bloods in Lynn which led the police to make a special effort to collect intelligence about gang membership, including the nicknames of members.
4. Sergeant Vaile went to the second floor apartment, which he knew to be the home of the defendant and his family. He knocked on the second floor apartment door. There was no lock on the door. A man later identified as Mr. Soeuy, the defendant's father, who speaks a limited amount of English, answered the door. Sergeant Vaile asked, "where's Playboy?" Mr. Soeuy, who knew Sergeant Vaile and other officers for a number of years, stepped aside and Sergeant Vaile entered the kitchen. Another young person who was in the kitchen area with his father said "he's in the bedroom." Sergeant Vaile walked past him to what appeared to be a bedroom. He knocked on this door, and upon receiving no response he opened the door and told the defendant to come out. The defendant and three other persons came forward. Sergeant Vaile directed the group outside to the driveway and then radioed officer Panacopolous. Meanwhile, officer Panacopolous asked Mr. Sam if he would be willing to take a ride to see if he "could identify some suspects." He agreed. Mr. Sam was seated in the back seat of a police cruiser, which brought him to the corner of Oakville and Bennett Street. Mr. Sam knew that the defendant's home was six or seven houses down the street. While he sat in the police cruiser, Mr. Sam saw the police bringing a group of young people down the defendant's driveway and out to the street. Mr. Sam realized that Playboy, the young man who shot him, was among the persons in this group. At this point, officer Panacopolous said, "if you see any suspects let me know." The police cruiser then drove further down the street and parked in front of the defendant's home. Mr. Sam was asked to step out of the cruiser. He was asked by Sergeant Vaile, "Do you recognize anyone?" By this time, the four young people in question were standing on the sidewalk. Mr. Sam said he recognized all four of the people. Mr. Sam was asked, "Who was the driver?" Mr. Sam pointed to the defendant. There were three vehicles in the driveway — a white sedan, an SUV, and a car described as maroon and purple, which Mr. Sam said was the car driven by the defendant. He pointed it out to the police. Officer Panacopolous drove the defendant back to the Little Peach Store. The entire procedure took only a few minutes. This was the only identification procedure conducted by the police since the incident.
5. Rulings of Law. The defendant raises three issues. First, he maintains that Sergeant Vaile violated the defendant's reasonable expectation of privacy when he entered the driveway of his home to inspect the vehicle. Second, he maintains that Sergeant Vaile's entry into the apartment without a warrant was unlawful. Third, he maintains that the show-up identification procedure was unnecessarily suggestive.
A. Inspection of the Honda vehicle. The information broadcast by officer Panacopolous and received by Sergeant Vaile, along with his background knowledge of the defendant's involvement in gang activity in Lynn, provided him at least with reasonable grounds to suspect (if not probable cause to believe) that the defendant was involved in the shooting when he arrived at the defendant's home.
Even if the information known by Sergeant Vaile amounted to no more than reasonable suspicion, good police practice demanded that he inspect the Honda Accord to determine if it had been recently operated. A brief entry onto the defendant's driveway area to touch the vehicle's tailpipe was a de minimus intrusion that was warranted by the circumstantial evidence pointing to the involvement of the defendant.
Whether an individual has a reasonable expectation of privacy depends on (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable. Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). The defendant bears the burden of establishing that police conduct intruded on a constitutionally protected reasonable expectation of privacy. Commonwealth v. Carter, 424 Mass. 409, 411-412 (1997).
An individual enjoys only a limited expectation of privacy in a driveway that is open to the public. Commonwealth v. Simmons, 392 Mass. 45, 48 (1984), quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975) ("A driveway is only a semiprivate area."). Generally, the police are not prohibited from entering such a driveway and making observations of the exterior of a motor vehicle. See Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 160 (1991) (officers entered on private driveway to examine the exterior of the automobile); Commonwealth v. Simmons, 392 Mass. 45, 48-51 (1984) (police saw exterior and plainly visible interior of the defendant's automobile, which was parked near a well-traveled public road). Contrast Commonwealth v. Hurd, 51 Mass. App. Ct. 12, 16 (2001) ("Here, unlike Simmons, the object which was the subject of observations [an animal cage] was not in the driveway, but rather in a partially fenced-in back yard. In that location, it was not visible from the public street or even from the front, porch or shed doors."). There was no violation of the defendant's reasonable expectation of privacy when Sergeant Vaile entered the driveway of his home and felt the vehicle's tailpipe.
B. Warrantless entry into defendant's apartment. Once Sergeant Vaile determined that the car had only recently been operated he had probable cause along with exigent circumstances justified Sergeant Vaile's decision to enter the defendant's home without a warrant in order to search for the defendant.
Without a warrant, two conditions must be met for an entry to be valid: (1) there must be probable cause to believe that evidence of crime is or will be in a particular location; and (2) the circumstances must be so exigent, urgent, and unforeseeable that obtaining a warrant is impracticable. The Commonwealth bears the burden of establishing the existence of probable cause and exigent circumstances. Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 227 (1992).
Probable cause exists where at the time of the proposed warrantless search, information possessed by police provides a substantial basis for the belief that there is a timely nexus or connection between criminal activity, a particular person or place to be searched, and particular evidence to be seized. Commonwealth v. Donahue, 430 Mass. 710, 711-712 (2000).
Exigency is determined as of the time of the search and seizure, or the time of the stop. Commonwealth v. Markou, 391 Mass. 27, 29-30 (1984). Whether the response of the police was "reasonable and therefore lawful are matters to be evaluated in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis." Commonwealth v. Young, 382 Mass. 448, 456 (1981). Some factors which would tend to support a finding of exigency include: "a showing that the crime was one of violence or that the suspect was armed, a clear demonstration of probable cause, strong reason to believe that the suspect was in the dwelling, and a likelihood that the suspect would escape if not apprehended. Additional considerations testing the reasonableness of police conduct are whether the entry is peaceable and whether the entry is in the nighttime." Commonwealth v. Forde, 367 Mass. 798, 807 (1975).
In these circumstances the test for exigency is met. The crime was one of violence because the defendant fired a weapon and the police could expect the defendant to be armed. There is a strong showing of probable cause since Mr. Sam knew the identity of the defendant from prior interactions and knew exactly where the defendant lived. There was strong indication that the defendant was in the apartment because the defendant's apartment was only a couple of blocks from the shooting and the vehicle described as the one the defendant was operating was parked in the driveway. The entry into the apartment was peaceable. The police had no way of knowing whether the suspect would escape if not apprehended. The Commonwealth sustained its burden of demonstrating exigency.
C. Show-up identification procedure. One-on-one identification procedures such as the show-up used in this case are "generally disfavored" due to the high potential for suggestiveness. See Commonwealth v. Johnson, 420 Mass. 458, 461 (1995); Commonwealth v. Martin, 63 Mass. App. Ct. 587, 591-592 (2005); Commonwealth v. Austin, 421 Mass. 357, 361 (1995). Although such procedures may be lawfully employed in certain circumstances, this case illustrates why great care must be used in making the arrangements for a show-up.
Where it appears that the prosecution intends to use an eyewitness to identify the defendant at trial, a defendant may show that the witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process. Commonwealth v. Botelho, 369 Mass. 860, 866 (1976). If this is established, then the prosecution may not present the particular confrontation in evidence at the trial. Id. The defendant must show by a preponderance of the evidence that, Ain light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law. Commonwealth v. Mills, 420 Mass. 67, 77 (1995).
Determining whether a show-up is unnecessarily suggestive there must be inquiry into whether good reason existed for the use of the show-up identification such as: (1) the nature of the crime involved and corresponding concerns for public safety; (2) the need for efficient police investigation in the immediate aftermath of the crime; and (3) the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another tract. Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995). See Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 68-69 (2003) (good reason for single photographic identification where purchase of drugs occurred only a short time earlier). Efficient investigation immediately following a crime results in freeing innocent persons and allowing other leads to be followed. Commonwealth v. Santos, 402 Mass. 775, 784 (1988). Prompt confrontation allows the witness to identify the suspect while the incident is still fresh in her mind and before other images crowd in or attempts to verbalize her impressions distort the picture. Commonwealth v. Leaster, 395 Mass. 96, 103 (1985).
If the defendant shows that the identification was unnecessarily suggestive, the commonwealth must show by clear and convincing evidence that the proffered identification has a source independent from the tainted one. Botelho, 369 Mass. at 868. Relevant factors for the judge to consider are: "(1) The extent of the witness' opportunity to observe the defendant at the time of the crime; prior errors, if any, (2) in description, (3) in identifying another person or (4) in failing to identify the defendant; (5) the receipt of other suggestions, and (6) the lapse of time between the crime and the identification." Id. at 869. The witness's opportunity to observe the individual perpetrating the crime is a significant factor used to evaluate identifications. Commonwealth v. Ross, 361 Mass. 665, 671-672 (1972); Sylvia, 57 Mass. App. Ct. at 68-69.
Here, the show up procedure was unnecessarily suggestive. The police told Mr. Sam they wanted him to look at "some suspects" and drove him to the defendant's home where Mr. Sam observed the police bringing four young people down the defendant's driveway and out to the street. It must have been apparent to Mr. Sam that the police believed the defendant and others were the suspects. The police asked Mr. Sam if he recognized anyone. Mr. Sam was able to identify the defendant as the driver and point out the car the defendant was driving, which was one of three cars parked in the driveway. The suggestiveness of the identification procedure requires the per se rule of exclusion. Botelho, 369 Mass. at 866. However, the commonwealth may still offer the identification testimony because the identification has a source independent of the suggestive confrontation. The witness may identify the defendant at trial because he had a good opportunity to see the defendant during the commission of the crime and he knew the defendant well from school before the incident.
ORDER
For the above reasons, the defendant's motion to suppress based on violation of the defendant's reasonable expectation of privacy and warrantless entry into the defendant's apartment is DENIED and the defendant's motion to suppress based on the unnecessarily suggestive identification procedure is ALLOWED.