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14-P-1400                                       Appeals Court

                COMMONWEALTH    vs.   CAJOU JOHNSON.


                           No. 14-P-1400.

       Essex.     September 14, 2015. - December 9, 2015.

            Present:   Green, Wolohojian, & Hanlon, JJ.


Firearms. Practice, Criminal, Motion to suppress, Findings by
     judge. Constitutional Law, Search and seizure,
     Investigatory stop, Reasonable suspicion. Search and
     Seizure, Reasonable suspicion, Clothing.



     Indictments found and returned in the Superior Court
Department on November 8, 2012.

     A pretrial motion to suppress evidence was heard by Timothy
Q. Feeley, J, and the cases were heard by Howard J. Whitehead,
J.


     Patrick Levin for the defendant.
     Philip Anthony Mallard, Assistant District Attorney, for
the Commonwealth.


    WOLOHOJIAN, J.     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
                                                                   2


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.1

     Background.   We recite the facts as found by the motion

judge.

          "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

     1
       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.
                                                              3


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
                                                                 4


    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
                                                                    5


     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.
                                                                      6


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
                                                                      7


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.
                                                                    8


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?"
                                                                    10


    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."
                                                                    11


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.

                                     Judgments affirmed.
