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14-P-975                                                Appeals Court

                COMMONWEALTH   vs.   JOHNNY J. EVANS.


                           No. 14-P-975.

           Suffolk.     March 16, 2015. - July 31, 2015.

             Present:   Katzmann, Milkey, & Agnes, JJ.


Controlled Substances. Practice, Criminal, Motion to
     suppress. Constitutional Law, Search and seizure,
     Investigatory stop, Reasonable suspicion. Search and
     Seizure, Threshold police inquiry, Reasonable
     suspicion. Threshold Police Inquiry.


     Complaint found and returned in the Roxbury Division of the
Boston Municipal Court Department on April 17, 2013.

     A pretrial motion to suppress evidence was heard by David
B. Poole, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Ralph D. Gants, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Rebecca A. Jacobstein for the defendant.
                                                                      2


     MILKEY, J.    During a street encounter that occurred in the

Upham's Corner neighborhood of the Dorchester section of Boston,

Boston police discovered a bag of "crack" cocaine inside the

defendant's mouth.    The Commonwealth charged the defendant with

possession of that cocaine in violation of G. L. c. 94C, § 34.

After holding an evidentiary hearing, a Boston Municipal Court

judge allowed the defendant's motion to suppress the cocaine.

On the Commonwealth's interlocutory appeal of that ruling, we

affirm.

     Background.     When reviewing a decision on a motion to

suppress, we accept the judge's findings of fact absent clear

error, but make an independent determination whether the judge

correctly applied constitutional principles to the facts as

found.    Commonwealth v. Lyles, 453 Mass. 811, 814 (2009).     The

following recitation is drawn from the judge's careful findings,

none of which the Commonwealth has demonstrated to be clearly

erroneous.

     At approximately 2:00 A.M. on March 11, 2013, the defendant

was walking alone along Humphreys Street toward Humphreys Place.

There, he was spotted by Boston police Officers Dodd and Conley

who, dressed in plain clothes, were traveling in an unmarked

police cruiser.    As the judge found, the officers had not "been

dispatched to the area for a specific report of a crime or

otherwise"; instead they were on routine patrol "in the area
                                                                      3


they covered."   When they saw the defendant, they did not

recognize him or "know him from any prior interactions."

Rather, to them, "[h]e was just a person walking on the street."

     The defendant spotted the unmarked vehicle trailing him,

and he turned left onto Humphreys Place when he reached it. 1    At

that point, "Officer Dodd, who was driving, turned his [car]

onto Humphreys Place and followed [the defendant] until he got

up as far as [the defendant w]as walking."    While still in their

vehicle, the officers proceeded to ask the defendant where he

was going.   The defendant answered that he lived on Humphreys

Place and was returning home (a statement that the police

admitted they had no reason to question).    The defendant "looked

around" while being questioned, and "Officer Dodd thought that

[he] appeared to be nervous."    At one point, the defendant

placed his hands in his pockets, and "Officer Dodd directed

[him] to take his hands out of his pockets."    The defendant

"hesitated" and then complied.    Nevertheless, both officers left


     1
       Officer Dodd (the only witness at the hearing on the
motion to suppress) testified that the defendant's turn onto
Humphreys Place was "sudden," and that the defendant
subsequently indicated that he lived on Humphreys Place. The
judge made no finding that the defendant's turn was "sudden,"
nor did he explicitly reject it. In any event, under these
circumstances, we see little of consequence in whether the
defendant's turn onto Humphreys Place was "sudden" or not. It
is hardly remarkable that someone walking home alone at 2:00
A.M. in what police described as a dangerous area who found
himself being trailed by an unmarked car would want to take a
sudden turn onto the side street where he lived.
                                                                  4


their vehicle and "walked right up to him on the sidewalk" to

continue their questioning of him.   They were carrying service

weapons (although their guns were not drawn), and their badges

were visible around their necks.

     During his questioning of the defendant on the sidewalk,

"it appeared to Officer Dodd that [the defendant] had something

in his mouth from his manner of speaking."     In response to a

direct question as to what he had in his mouth, the defendant

answered, "[N]othing," and he then opened his mouth to

demonstrate this.   "[A]s soon as [the defendant] opened his

mouth," Officer Dodd used his flashlight to examine the inside

of the defendant's mouth, and in this manner he was able to see

a bag containing what appeared to be crack cocaine wedged

between the defendant's tongue and cheek. 2

     After the defendant refused to spit out the observed bag

"and appeared to be trying to swallow it[,] Officer Dodd took

hold of [the defendant's] jaw" and eventually induced the

defendant to spit it out.   The officers arrested the defendant

and searched him incident to that arrest.     Finding "nothing

further" on the defendant, and apparently having no reason to

question the defendant's postarrest statement that "I was just

     2
       The Commonwealth argues that the judge committed clear
error in finding that Officer Dodd did not see anything in the
defendant's mouth prior to using the flashlight. However,
Officer Dodd himself expressly acknowledged that he "couldn't
see what was in [the defendant's] mouth without a flashlight."
                                                                      5


going home to get high," the officers released him to be

summonsed at a later date.

     Discussion.    The dispute before us is relatively narrow.

The defendant appropriately acknowledges that the officers'

initial decision to focus on him did not constitute a seizure.

See Commonwealth v. Franklin, 456 Mass. 818, 822 (2010)

(following a person, without some other show of authority, is

not a seizure).    The fact that the police offered no

justification for deeming the defendant worthy of investigation

does not turn their initial actions into a seizure. 3    Similarly,

the defendant concedes that once the police observed what

appeared to be a bag of crack cocaine in his mouth, they had

reasonable suspicion to seize him (indeed, there plainly was

probable cause at that juncture).   Thus, the issues before us

are whether the defendant was "seized" at some point before the

police observed the bag of cocaine in his mouth and, if so,

whether they had reasonable suspicion at that time.      See ibid.

See also Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007)

(courts are to determine first at what point the defendant was

seized).   The motion judge found that the defendant was seized

     3
       At the suppression hearing, Officer Dodd testified that
"[r]ight at the area of Dudley and Humphreys Street [he]
observed a black male [who turned out to be the defendant]
walking on Humphreys Street towards Humphreys Place" and that he
then decided to follow this person. Officer Dodd did not offer,
nor was he specifically asked, why he and his partner decided to
follow the defendant.
                                                                   6


for purposes of art. 14 of the Massachusetts Declaration of

Rights by the time he opened his mouth. 4   The Commonwealth argues

that the defendant was not seized until the point at which

Officer Dodd ordered the defendant to spit out the cocaine,

after the police had conducted their flashlight examination of

the inside of his mouth.   Commonwealth v. Thomas, 38 Mass. App.

Ct. 928, 928 (1995).

     To determine when the defendant was seized, our inquiry is

a fact-specific one:   whether "if, in view of all the

circumstances surrounding the incident," those circumstances

were "sufficiently intimidating that a reasonable person would

believe that he was not free to turn his back on his

interrogator and walk away."   Commonwealth v. Barros, 435 Mass.

171, 173-174 (2001), quoting from and citing United States

v. Mendenhall, 446 U.S. 544, 554-555 (1980) (opinion of Stewart,

     4
       In his motion to suppress, the defendant invoked both the
Fourth Amendment to the United States Constitution and art. 14.
The motion judge analyzed the defendant's claims under art. 14
and did not specifically mention the Fourth Amendment. The
Supreme Judicial Court has held that art. 14 "provides more
substantive protection than does the Fourth Amendment in
defining the moment when" a seizure occurs. Thus, we consider
the seizure in the present case under the "more stringent
standards of art. 14 with the understanding that, if these
standards are satisfied, then so too are those of the Fourth
Amendment." Commonwealth v. Lyles, 453 Mass. at 812 n.1. In
his brief, the defendant does not specify how, if at all, our
cases in this area differ from Federal cases, but cites both
Federal and Massachusetts cases in support of his argument.
Accordingly, we look to cases decided under Federal law as well
as those decided under art. 14. See Commonwealth v. Williams,
422 Mass. 111, 115 n.9 (1996).
                                                                        7


J.).       Furthermore, "[t]he test is necessarily imprecise, because

it is designed to assess the coercive effect of police conduct,

taken as a whole, rather than to focus on particular details of

that conduct in isolation."      Michigan v. Chesternut, 486 U.S.

567, 573 (1988).       See Commonwealth v. Rosado, 84 Mass. App. Ct.

208, 212 (2013) (observing that "analysis of events in the stop

and frisk context" requires the facts to be examined as a whole,

"not in isolation"). 5     Whether, and when, a seizure has occurred

"will vary, not only with the particular police conduct at

issue, but also with the setting in which the conduct

occurs."       Michigan v. Chesternut, 486 U.S. at 573.

       We conclude that a reasonable person would not have felt

free to terminate the encounter, at the latest, when Officer

Dodd asked the defendant what was in his mouth.      The encounter

took place while the defendant was walking alone in the dark

early hours of the morning.      See United States v. Washington,

490 F.3d 765, 772 (9th Cir. 2007) ("[A]lthough the encounter

took place on a public street, it happened around 11:30 P.M. in

lighting that required [the officer] to use a flashlight").      In

this late night setting, the defendant was trailed by an


       5
       The Commonwealth in effect seeks to analyze separately
each action taken by the officers to determine whether that
particular action was a seizure. By taking each action in
isolation divorced from context, the Commonwealth fails to
address whether, in light of all the circumstances in their
totality, the encounter constituted a seizure.
                                                                     8


unmarked vehicle that then pulled up right alongside him, and he

was asked where he was going.   The defendant was alone, while

there were two officers who were armed and wore their badges.

See Commonwealth v. Lyles, 453 Mass. at 815 (presence of two

armed plain clothes officers who were displaying their badges

contributed to encounter being sufficiently intimidating). 6   We

agree with the Commonwealth that the initial questioning by

Officer Dodd from inside the cruiser did not rise to the level

of a seizure.   However, what started as a consensual interaction

eventually "matured" into a seizure.   Id. at 817.   The fact that

Officer Dodd subsequently directed the defendant to take his

hands out of his pockets did not itself effect a seizure of him. 7

See Commonwealth v. Fraser, 410 Mass. 541, 543 (1991).   However,

it did mark the officers' escalating exercise of authority and


     6
       See also United States v. Bloom, 975 F.2d 1447, 1454 (10th
Cir. 1992) (holding that the questioning of one suspect by two
agents increased the encounter's coerciveness and tipped the
scale in favor of finding a seizure); United States v.
Washington, 490 F.3d at 771 (explicitly considering the number
of officers as a factor in the seizure analysis and finding that
presence of two uniformed officers was coercive). In United
States v. Mendenhall, 446 U.S. at 554, the Supreme Court noted
that the number of officers present is one factor that may
increase the intimidating nature of an encounter.
     7
       In its brief, the Commonwealth characterizes the officer's
tone as a mere "request," apparently drawing from Officer Dodd's
testimony at the motion hearing that his tone was
"conversation[al]." The motion judge, however, found that
Officer Dodd "directed" the defendant to remove his hands from
his pockets. The Commonwealth has not argued that this finding
was clearly erroneous.
                                                                   9


control over him.   After the defendant hesitated (though

ultimately complied), both officers responded by exiting the

cruiser and "walk[ing] right up to him," eliminating any

physical distance between themselves and the defendant.

In Commonwealth v. Barros, 435 Mass. at 175, the Supreme

Judicial Court found the fact that an officer exited his cruiser

after the defendant's apparent refusal to cooperate to be

"highly relevant" in determining whether a police interaction

had escalated to the point where a reasonable person would not

have felt free to leave.

     After the officers got out of their vehicle, Officer Dodd

again asked the defendant where he was going, to identify

himself, and "what he was doing," and then asked him what was

inside his mouth.   In this manner, the questioning became more

pointed and accusatory in tenor.   See United States v. Savage,

889 F.2d 1113, 1115, 1117 (D.C. Cir. 1989) (encounter escalated

into a seizure after questioning became "direct" and

"forceful"); United States v. Dapolito, 713 F.3d 141, 153 (1st

Cir. 2013) (encounter made more intimidating due to the

"intensification" and "accusatory nature" of the questioning).

Considering all these circumstances, we conclude that the

interaction became sufficiently intimidating such that a

reasonable person would feel compelled to respond to the pointed

question about what was in his mouth.   See Commonwealth
                                                                   10


v. Lopez, 451 Mass. 608, 610-611 (2008).   In short, by the time

the defendant was asked what was inside his mouth, the encounter

had transgressed the bounds of mere questioning and ripened into

a seizure. 8

     Having concluded that the defendant was seized when the

officer inquired what was in his mouth, we next consider whether

this seizure was supported by specific, articulable facts giving

rise to reasonable suspicion.   For reasonable suspicion, "[a]

mere hunch is not enough."   Commonwealth v. Brown, 75 Mass. App.

Ct. 528, 532 (2009) (citations omitted).   The Commonwealth has

not actually argued on appeal that reasonable suspicion of

criminal activity existed at the time the defendant was asked

what was in his mouth.   Therefore, the issue has been waived.

See Commonwealth v. French, 462 Mass. 41, 47 (2012); Mass.R.A.P.

16(a)(4), as amended, 367 Mass. 921 (1975). 9   In any event, we


     8
       To be clear, we note that we are not relying on the
argument highlighted in the defendant's brief that we should
consider race as a circumstance in the objective seizure
inquiry. Such a suggestion was not raised below, it is
unnecessary to resolution of this appeal, and it seems at odds
with Commonwealth v. Lora, 451 Mass. 425, 436 (2008), in which
the Supreme Judicial Court held that claims of racially biased
law enforcement are properly brought as equal protection claims
under arts. 1 and 10 of the Massachusetts Declaration of Rights
rather than art. 14. See Whren v. United States, 517 U.S. 806,
813 (1996) (rejecting the argument that race is a relevant
consideration in the Fourth Amendment context).
     9
       The Commonwealth also did not make this argument before
the motion judge. See Commonwealth v. Silva-Santiago, 453 Mass.
782, 795 (2009).
                                                                  11


are satisfied that such suspicion was lacking here.    All that

the Commonwealth established was that the defendant appeared to

be "a little nervous" and that, while speaking, he sounded as

though he had something in his mouth.   As to the defendant's

"nervous" appearance, our cases have consistently held that "a

defendant's nervous movements or appearance alone is

insufficient" to create reasonable suspicion.   Commonwealth

v. Brown, 75 Mass. App. Ct. at 533.   Nor does the defendant's

appearance of having something in his mouth suffice to create

reasonable suspicion, since this is as consistent with the

concealment of illicit drugs as it is with "the presence of

food, chewing gum, tobacco, or a speech defect." 10   Commonwealth

v. Houle, 35 Mass. App. Ct. 474, 476 (1993).    Neither separately

nor taken together do these observations provide the specific,

articulable facts necessary to justify the degree of intrusion

that occurred here. 11



     10
       Officer Dodd provided no articulated basis for
distinguishing between the various potential explanations.
     11
       The Commonwealth also argues that the order allowing the
motion to suppress must be reversed because, by opening his
mouth, the defendant voluntarily placed the bag of cocaine in
plain view. See Commonwealth v. Sergienko, 399 Mass. 291, 295
(1987) (an officer may use a flashlight to view an object that
could otherwise be seen in plain view during the daytime).
Because we conclude that the defendant was seized without
reasonable suspicion prior to opening his mouth, this plain view
argument fails. See Commonwealth v. Knowles, 451 Mass. 91, 100
(2008). We therefore need not consider whether, had there been
                                                                  12


     Because we conclude that the defendant was seized without

reasonable suspicion, the evidence obtained as a result must be

suppressed as fruit of the poisonous tree.   Commonwealth

v. Damiano, 444 Mass. 444, 453 (2005).   Accordingly, we affirm

the order allowing the defendant's motion to suppress. 12

                                    So ordered.




daylight, Officer Dodd would have been able to view the bag of
cocaine lodged in the recess between the defendant's tongue and
cheek, and whether the defendant's opening his mouth should be
viewed as providing consent for the police to examine the
interior confines of his mouth using a flashlight. Nor is it
necessary to consider countervailing arguments that such an
examination is so particularly intrusive that it necessarily
constitutes a constitutional "search," and that police officers'
undertaking such a step itself could transform a voluntary
police encounter into a seizure. See, e.g., People v. Harper,
237 Ill. App. 3d 202, 207 (1992) (use of flashlight to view the
inside of the mouth constitutes a search); State v. Hardy, 577
N.W.2d 212, 216 (Minn. 1998) (officer's request for individual
to open his mouth constitutes a search). Compare Maryland v.
King, 133 S. Ct. 1958, 1968-1969 (2013) (physical intrusion into
the interior of a mouth, however minimal, is a search under the
Fourth Amendment).
     12
       The defendant argues that we could affirm on the
alternative ground that Officer Dodd used unreasonable force
when he applied "pressure" to the back of the defendant's jaw.
Both parties represent that the Boston police department no
longer permits its officers to use this sort of procedure to
prevent the swallowing of evidence. The defendant asks us to
join those courts in other jurisdictions that have held any
degree of choking to be unreasonable and an independent basis
for suppression. See, e.g., People v. Jones, 209 Cal. App. 3d
725, 730 (1989); State v. Hodson, 907 P.2d 1155, 1158 (Utah
1995). Because we affirm on other grounds, we do not reach the
issue.
