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16-P-1528                                           Appeals Court

            COMMONWEALTH   vs.   JAMES CHARLES HILAIRE.


                           No. 16-P-1528.

      Plymouth.      October 6, 2017. - February 21, 2018.

       Present:   Wolohojian, Maldonado, & Wendlandt, JJ.


Armed Home Invasion. Robbery. Firearms. Constitutional Law,
     Search and seizure, Reasonable suspicion. Search and
     Seizure, Reasonable suspicion. Evidence, Judicial notice.
     Practice, Criminal, Motion to suppress, Findings by judge.



     Indictments found and returned in the Superior Court
Department on October 29, 2014.

     A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Fernande R. V. Duffly, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     David D. Nielson for the defendant.
     Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.   At issue is whether there was reasonable

suspicion to stop the defendant and search his backpack several
                                                                     2


hours after an armed home invasion had occurred nearby.     Taking

judicial notice of demographic data he located on his own

initiative, the Superior Court judge concluded there was

reasonable suspicion and denied the defendant's motion to

suppress.     The demographic data should not have been relied

upon, both because the judge should not have expanded the

factual record with independent research taken on his own

initiative without notice to the parties and because they were

not relevant.    Nonetheless, we affirm the denial of the motion

to suppress because we conclude that the facts elicited at the

evidentiary hearing established reasonable suspicion to stop the

defendant.1

     On July 29, 2014, at approximately 3:05 A.M., East

Bridgewater police responded to the area of 601 North Central

Street to investigate a report of an armed home invasion with

shots fired.2    It was reported that a large amount of cash and

jewelry had been taken.     The suspects were described as several

young black males, two of whom were carrying backpacks.     There

was no further description of the men, their features, or their

     1
       The case is before us on the defendant's interlocutory
appeal, which was allowed by a single justice of the Supreme
Judicial Court.
     2
       We recite the facts as the judge found them, supplemented
by undisputed facts established during the evidentiary hearing
on the motion to suppress because the judge credited the sole
witness's testimony. See Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015).
                                                                     3


appearance, except that they were said to be wearing "regular

clothes."

    A short time after the home invasion, three black men fled

from a red Toyota Camry in front of 505 North Central Street,

leaving the doors of the vehicle open as they ran into

neighboring woods.   505 North Central Street is only about 100

yards from the location of the home invasion.

    A large number of officers converged on the scene.     One of

them, Talitha Connor, stood near the abandoned Toyota while

other officers searched the woods.    As she was positioned there,

Connor observed a black Acura driving up and down North Central

Street.   Connor stopped the vehicle and asked its driver, Ashley

Smith, what she was doing.   Smith responded that she was lost

and trying to get back to Brockton.    Connor allowed Smith to go

on her way, but wrote the registration number of the vehicle on

her hand.

    Officer Dennis Andre was called in to duty around 5:00 A.M.

Andre's first assignment was to transport to the station a

slender-built black male who had been taken into custody in

connection with the home invasion.    Andre then returned to the

area near the scene to continue patrolling for the two suspects

who remained at large.

    At approximately 7:15 A.M., Andre saw a dark-colored sedan

"bang[] a U-turn" in the middle of an intersection during a red
                                                                    4


light.   He stopped the vehicle, which was driven by Ashley

Smith, and radioed in the registration information.      Smith again

explained she was lost and trying to get back to Brockton.

Andre gave Smith directions, which he testified as just

"basically two streets, and then you're [on] Plain Street in

Brockton."   Smith responded that "she was familiar with Plain

Street in Brockton and could make it home from there."

    Andre then returned to the station where he learned from

Connor about her earlier encounter with Smith, and the fact that

Smith had given both of them the same explanation for her

presence in the area.   Because Connor had written the

registration on her hand, the two officers were able to confirm

that Smith was driving the same vehicle on both occasions.

    Andre returned to his patrol.    Around 8:00 A.M., he

observed the same vehicle.   Smith was again at the wheel, and

was talking on a cellular telephone (cell phone).     She was

traveling from Brockton into East Bridgewater towards the North

Central Street area.    Andre stopped the vehicle and asked Smith

why she had returned to East Bridgewater given her earlier

repeated statements about wanting to go to Brockton instead.

Smith stated that she was returning to her mother's friend's

house.   Andre asked with whom she had been speaking on the cell

phone.   Smith denied having a cell phone.   Andre remarked that

he had just seen her on the cell phone, prompting Smith to no
                                                                       5


longer deny the cell phone's presence but instead to claim it

was her mother's cell phone.    Smith retrieved the cell phone

from the driver's side door panel, handed it to Andre, and

consented to his looking at it.    Andre saw a recent text message

time-stamped 7:51 A.M. that read, "Did you pick him up yet?"

Although Smith claimed she knew nothing about the message, she

acknowledged that the cell phone had been in her possession all

day.    Smith was asked to accompany other officers to the station

for further questioning.

       Andre returned to his patrol.   At around 9:00 A.M., he

heard a radio report that a black male wearing a backpack had

been spotted walking on North Central Street.     Andre drove to

the location immediately and saw the defendant, a black male,

with a backpack, walking by himself on the sidewalk while

talking on a cell phone.    He was approximately one-half mile

from the site of the crime.

       Andre parked his cruiser halfway on the sidewalk just ahead

of the defendant, and approached to speak with him.      The officer

asked the defendant where he was coming from, and he responded

by turning around and pointing toward 601 North Central Street.

Andre said he wanted to look in the defendant's backpack, and

the judge found that "[t]he defendant did not argue but rather

acquiesced to [Andre's] request."      Inside were large amounts of

currency and jewelry.
                                                                       6


    The defendant was indicted on five counts of armed home

invasion, G. L. c. 265, § 18C; three counts of armed robbery

while masked, G. L. c. 265, § 17; and one count of unlawful

possession of a firearm, G. L. c. 269, § 10(a).     He filed a

motion to suppress on the ground that there was no reasonable

suspicion to stop him.   In essence, he argued then (and argues

now) that given the lack of particularity in the description of

the suspects (young black men wearing regular clothes and

backpacks), and the temporal (six hours) and spatial (one-half

mile) distance from the crime, there was no reasonable suspicion

that he "was committing, had committed, or was about to commit a

crime."   Commonwealth v. Warren, 475 Mass. 530, 534 (2016),

quoting from Commonwealth v. Martin, 467 Mass. 291, 303 (2014).

    The motion judge conducted an evidentiary hearing at which

Andre was the sole witness, and later denied the motion in a

detailed written memorandum.     The judge determined that the

defendant had been seized when Andre said he wanted to look in

the defendant's backpack.   The judge accordingly analyzed

whether reasonable suspicion existed at that moment in time.      As

part of that analysis, he considered the factors laid out in

Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554-556 (2002),

and found that "the physical description of the suspects was

general and lacking in detail.    The area is not a high crime

area and the defendant took no evasive action when confronted by
                                                                    7


[Andre].   More importantly[,] over six hours had elapsed between

the time the suspects fled into the woods and the time the

defendant was stopped."3   None of these findings is clearly

erroneous.   In addition, the judge correctly stated the law

that, while a description "need not be so particularized as to

fit only a single person, . . . it cannot be so general that it

would include a large number of people in the area where the

stop occurs."   Commonwealth v. Depina, 456 Mass. 238, 245-246

(2010).    The judge then continued by reasoning that:

     "A description of the suspects 'as young black men
     wearing backpacks' may, depending on geography, fit a
     large number of men in the area. However, that is not
     likely in East Bridgewater. Although there was no
     evidence presented on the point, I take judicial
     notice of the fact that the African-American, black
     population of East Bridgewater is decidedly small.
     According to the records of the United States Census
     Bureau, less than 1% of the population of East
     Bridgewater was black or African-American as of July,
     2014."

     Discussion.    In reviewing a ruling on a motion to suppress

we "review independently the application of constitutional

principles," but "we accept the judge's subsidiary findings of

fact absent clear error" (quotations omitted).    Commonwealth v.

Leslie, 477 Mass. 48, 53 (2017).   "Our review . . . is based on

the facts as developed at the suppression hearing, . . . "

Commonwealth v. Dame, 473 Mass. 524, 536, cert denied, 137 S.

     3
       The judge also correctly noted that the gravity of the
crime and the danger of the circumstances could be weighed
favorably in the reasonable suspicion calculus.
                                                                   8


Ct. 132 (2016), quoting from Commonwealth v. Johnson, 461 Mass.

44, 48 (2011), where the judge has "the responsibility of

determining the weight and credibility to be given . . . [the]

testimony presented," Commonwealth v. Wilson, 441 Mass. 390, 393

(2004), and where the parties have the opportunity to examine

and cross-examine the witnesses.    We are presented here with

subsidiary findings that do not rest solely on evidence obtained

through this customary procedure.   Instead, the judge's

subsidiary findings rest in part on information he obtained

through independent research, apparently conducted on the

Internet,4 of which he took judicial notice, after the

evidentiary hearing had concluded, and without notice to (or

input from) the parties.   Our first question, therefore, is

whether we must accept subsidiary fact findings made in this

manner even though they have not been shown to be clearly

erroneous.   We conclude for several reasons that we do not.

     We begin by noting that we have not found, nor have the

parties pointed us to, any reported decision, in this

jurisdiction or elsewhere, in which adjudicative facts5 found by


     4
       The parties at oral argument were in agreement that the
information was apparently obtained from the Internet.
     5
       Adjudicative facts are "the kind of facts that go to a
jury in a jury case," Reid v. Acting Commr. of the Dept. of
Community Affairs, 362 Mass. 136, 142 (1972), quoting from
Davis, Administrative Law Treatise, § 7.02. By contrast,
"[l]egislative facts are those facts, including statistics,
                                                                   9


judicial notice have formed the basis for ruling on a motion to

suppress.   This is not surprising because suppression hearings

are critical proceedings, at which the defendant has the

constitutional right to be present, to present evidence, and to

cross-examine the Commonwealth's witnesses,6 see Robinson v.

Commonwealth, 445 Mass. 280, 285-286 (2005); Doe v. Sex Offender

Registry Bd. No. 941, 460 Mass. 336, 340 (2011); see also

Mass.R.Crim.P. 18(a), 378 Mass. 888 (1979), and taking judicial

notice of subsidiary facts in the manner the judge did here

threatened these rights.   Moreover, although demographic data

published by the United States Census Bureau is the type of

information susceptible to judicial notice, see Mass. G. Evid.

201(b)(2) (2017), it is not appropriate to use the mechanism of

judicial notice to connect a defendant to the description of

suspects or to a crime.    See Mass. G. Evid. § 201(c) ("a court

shall not take judicial notice in a criminal trial of any



policy view, and other information, that constitute the reasons
for legislation or administrative regulations." Mass. G. Evid.
§ 201 note, at 23 (2017). The demographic data at issue here
are adjudicatory facts because they bear on the identification
of the defendant as one of the perpetrators of the home
invasion, a matter for the jury.
     6
       These rights are not waived simply by the defendant's
absence, even where that absence is voluntary. See Robinson v.
Commonwealth, 445 Mass. 280, 288 (2005) ("The defendant's waiver
of the right to be present at the hearing, however, does not
imply waiver of other constitutional rights, including the right
to the suppression hearing itself and the right to effective
assistance of counsel at that hearing").
                                                                    10


element of an alleged offense"); Commonwealth v. Kingsbury, 378

Mass. 751, 755 (1979).     The identity of the person who

committed, or is suspected of committing, a crime is not a

matter amenable to judicial notice.     Even in situations where

judicial notice is appropriate, it should not be taken without

notice to the parties and an opportunity to be heard.       See Mass.

G. Evid. 201(d) and commentary thereto; Department of Revenue v.

C.M.J., 432 Mass. 69, 76 n.15 (2000) (and cases cited) (parties

have right to notice of matters court will adjudicate).7

     There is an independent reason why the judge should not

have turned to the demographic data here, regardless of its

apparent reliability.     The information was not relevant either

to (1) determining the moment the defendant was seized in a

constitutional sense, or (2) determining whether, at that

moment, there was reasonable suspicion to believe the defendant

had committed, was committing, or was about to commit a crime.

The latter "depends on . . . the facts and circumstances within

the officer's knowledge at the time."     Dame, 473 Mass. at 536

(quotation omitted).     See ibid. (in the context of probable

     7
       We take this opportunity to stress that judges should use
great caution before conducting independent research into
factual matters, particularly on the internet. See S.J.C. Rule
3:09, Canon 2.9(C) (2016) ("A judge shall consider only the
evidence presented and any adjudicative facts that may properly
be judicially noticed, and shall not undertake any independent
investigation of the facts in a matter.) See also American Bar
Association Formal Opinion 478, Independent Factual Research by
Judges Via the Internet (Dec. 8, 2017).
                                                                  11


cause); Commonwealth v. Meneus, 476 Mass. 231, 234 (2017) (in

the context of reasonable suspicion).     Reasonable suspicion

cannot rest on later-developed facts not shown to have been

known to officers at the relevant time.

     For all of these reasons, the judge should not have taken

judicial notice of demographic data to support his conclusion

that reasonable suspicion existed.   We therefore set those

findings aside and do not consider them in our independent

application of constitutional principles to the remaining facts.

For purposes of our analysis, we accept the judge's finding that

the defendant merely acquiesced, and did not consent, to the

taking and search of his backpack, see Commonwealth v.

Greenberg, 34 Mass. App. Ct. 197, 201–202 (1993) ("Whether one

who hands his property over to the police at their request

voluntarily consents, or merely acquiesces to a claim of lawful

authority, presents a question of fact.     See Smith, Criminal

Practice & Procedure § 252 [1983]"), and therefore assess the

existence of reasonable suspicion as of that moment.8    "That

suspicion must be grounded in 'specific, articulable facts and

reasonable inferences [drawn] therefrom' rather than on a

     8
       Although the defendant argues that he was seized when
Andre parked his cruiser half on the sidewalk in front of the
defendant, the point is academic since reasonable suspicion
existed at both times. We further note that the defendant makes
no argument regarding the search or seizure of the backpack
other than that there was no reasonable suspicion at the moment
he was stopped.
                                                                  12


'hunch.'"   Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),

quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

"Reasonable suspicion is measured by an objective standard,

. . . and the totality of the facts on which the seizure is

based must establish 'an individualized suspicion that the

person seized by the police is the perpetrator' of the crime

under investigation."   Meneus, 476 Mass. at 235, quoting from

Warren, 475 Mass. at 534.   A general description that fails to

"distinguish the suspect from other individuals," Doocey, 56

Mass. App. Ct. at 554, cannot alone support a finding of

reasonable suspicion.   See Commonwealth v. Cheek, 413 Mass. 492,

497 (1992); Warren, supra at 540.

    Were it standing alone, we would agree with the defendant

that the description of the suspects in this case (three young

black males wearing regular clothes, two with backpacks) was

insufficiently particularized to support reasonable suspicion.

But "the value of a vague or general description in the

reasonable suspicion analysis may be enhanced if other factors

known to the police make it reasonable to surmise that the

suspect was involved in the crime under investigation."    Meneus,

476 Mass. at 237.   Here, it was enhanced by the fact that the

defendant was found not far from the location of the crime and

under circumstances that made it likely the suspect was still in

the area.   Where, as here, it is a short distance between the
                                                                   13


location of the crime and the location the defendant was

stopped, "[p]roximity is accorded greater probative value in the

reasonable suspicion calculus."   Warren, 475 Mass. at 536.

Although it is true that six hours had already elapsed since the

commission of the crime, it was a fair inference from Smith's

repeated circling of the area (which began shortly after the

crime), her disingenuous explanations for her presence, the fact

that she had not "yet" picked "him" up, and the fact that she

was in cell-phone communication with someone on this subject not

long before the defendant was spotted, that the suspect likely

remained in the immediate area.   See Doocey, 56 Mass. App. Ct.

at 556 (likeliness that a defendant will be found in the area

where police are searching is relevant to reasonable suspicion

calculus).   Contrast Warren, supra at 537 (concluding there was

no "rational relationship" between the timing and location of a

stop where an officer had no reason to be looking for a suspect

in the area where the defendant was stopped).   Finally, we also

take into consideration the "gravity of the crime and the

present danger of the circumstances," Meneus, supra at 239 --

here, a serious armed robbery with shots fired.   "[T]he fact

that the crime under investigation was a shooting, with

implications for public safety," added to the reasonable

suspicion calculus.   Ibid.
                                                         14


    For these reasons, we affirm the order denying the

defendant's motion to suppress.

                                  So ordered.
