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16-P-501                                                Appeals Court

                 COMMONWEALTH   vs.   JARRIS CHARLEY.


                            No. 16-P-501.

        Suffolk.      February 14, 2017. - March 24, 2017.

                Present:   Green, Meade, & Agnes, JJ.


Arrest. Probable Cause. Search and Seizure, Arrest, Probable
     cause. Constitutional Law, Arrest, Probable cause, Search
     and seizure.



     Indictments found and returned in the Superior Court
Department on March 2, 2015.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Geraldine S. Hines, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
     Anne Rousseve, Committee for Public Counsel Services, for
the defendant.


    GREEN, J.    After hearing a police radio dispatch report of

a robbery and shooting at a nearby convenience store, Boston
                                                                   2


police Officer Monica Quinonez observed the defendant walking

toward her from the general direction of the convenience store,

sweating profusely on a cool November evening.   The defendant's

build and clothing fit the general description included in the

dispatch.   Suspecting that the defendant may have been involved

in the convenience store incident, Quinonez watched the

defendant's movements for a few minutes, then went to the

convenience store to view surveillance video of the robbery and

shooting.   Her observations of the video corroborated her

suspicion that the defendant had committed the crime; as a

result, several police units were dispatched to the address

where Quinonez had last seen the defendant.   When police

officers approached that address, just under an hour after the

robbery and shooting, the defendant came down from the front

porch to meet them.   Informed that there had been "an incident

up the street," the defendant said, "I had nothing to do with

the shooting."   The officers took him into custody and

transported him to the police station, where he was interviewed.

After developing additional inculpatory evidence, the police

placed him under arrest.   A judge of the Superior Court allowed

the defendant's motion to suppress evidence1 obtained after the


     1
       The defendant also filed a motion to suppress statements,
which the judge denied as moot because the statements had been
suppressed as "fruit of the poisonous tree" pursuant to the
motion to suppress evidence.
                                                                     3


police took him into custody, and the Commonwealth appealed.2      We

reverse.

     Background.   We summarize the subsidiary findings of fact

entered by the motion judge, which we accept absent clear error,

reserving for independent review his ultimate findings and his

conclusions of law.   See Commonwealth v. Anderson, 461 Mass.

616, 619 (2012).

     On November 4, 2014, at 7:29 P.M., Boston police received a

911 call reporting an armed robbery, in which one person was

shot, at a convenience store in the Dorchester section of

Boston, known as Savin Hill.     Based on information furnished in

the call, the police dispatcher broadcast a report of a robbery

and shooting at that location, in which the suspect was a black

male wearing a dark colored hoodie with some kind of print or

pattern on it, and blue jeans.    In response to the dispatch, a

number of officers responded to the convenience store within

one-half hour.

     Surveillance video at the convenience store showed that the

robber was masked and had the hood of his sweatshirt up, so that

little of his face was visible.    Details of the robber's

clothing, and of his "slim build," observed on the surveillance


     2
       A single justice of the Supreme Judicial Court allowed the
Commonwealth's request for leave to pursue an interlocutory
appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass.
1501 (1996).
                                                                   4


video were included in police broadcasts from and after

approximately 7:50 P.M.

     Boston police Officer Monica Quinonez was working that

evening on a police detail at a construction site approximately

four blocks away from the convenience store.   At approximately

8:00 P.M., Quinonez noticed the defendant walking toward her

from the general direction of the convenience store.     The

defendant was wearing a blue zip-up hooded sweatshirt and blue

jeans, consistent with the clothing described in the initial

broadcast dispatch.3   The defendant and Quinonez made eye

contact, and Quinonez noticed that the defendant was sweating

profusely, even though it was a cool November evening.

Recognizing the defendant's resemblance to the general

characteristics included in the broadcast dispatch, Quinonez

watched the defendant's movements as he got into the front

passenger seat of a Toyota sedan, and as he shortly thereafter

emerged from the Toyota and went into an apartment building.

     Quinonez then walked briskly to the convenience store where

the robbery and shooting had occurred, arriving there at

approximately 8:15 P.M.   Quinonez asked to see the store

surveillance video to see whether the robber looked like the man


     3
       The defendant was not, however, wearing two other items of
clothing described in the later broadcasts, after police viewed
the store surveillance video: a puffy vest and an orange
baseball cap.
                                                                       5


she had just seen (the defendant).    After viewing the video and

recognizing the similarity of the robber to the defendant,

Quinonez told Boston police Sergeant Detective Keith Webb that

she had just seen a man who looked like the robber.4   In

response, three officers, including Officer Jason Ezekiel, a

member of the youth violence strike force, traveled in an

unmarked cruiser to the address that Quinonez had provided to

look for the defendant, and Quinonez walked back there with

additional officers.

     The cruiser reached the address at approximately 8:30 P.M.

The defendant was sitting on the front porch of the apartment

building, and the officers watched him from within the cruiser

for a brief time before getting out of the cruiser and walking

toward the building.   Although the officers were in plain

clothes, Ezekiel's shirt had a legend saying "Boston Police,"

and he wore his police badge on a lanyard around his neck; their

status as police officers was obvious to the defendant.       As the

officers approached, the defendant stood up and walked toward

them, meeting them on the sidewalk.    As he approached the

officers, the defendant asked, "What did I do?    Why are you

stopping me?"   Ezekiel described the defendant's demeanor as

     4
       Although the robber wore a mask and had the hood of his
sweatshirt pulled up and cinched tightly, Quinonez was able to
see his clothing, build, and skin color. Because the video was
in color, Quinonez was able to see and recognize not only the
color but also the hue of the robber's clothing.
                                                                   6


"confrontational."   Ezekiel responded that there had been "an

incident up the street."   Ezekiel asked the defendant if he

lived at that address, and the defendant responded that he was

homeless, but that his aunt lived on the third floor there.5

Ezekiel conducted a patfrisk of the defendant, and then asked

the defendant what was in his backpack; in response the

defendant said only his work clothes were in the backpack, and

began pulling clothes out of the backpack and throwing them on

the ground.   The defendant again asked why the police were

stopping him and said, "I had nothing to do with the shooting."

That statement sparked Ezekiel's suspicion, as neither he nor

any of the other officers had said anything about a shooting at

the "incident up the street."   When Ezekiel remarked to the

defendant that he had not mentioned anything about a shooting,

the defendant became more agitated, and Ezekiel asked him to sit

on the front porch of the apartment building.

     As the defendant sat on the porch, additional officers

arrived.   One of them, Boston police Sergeant Hynes, called

Lieutenant Detective Hopkins for instructions.   Hopkins

instructed Hynes to bring the defendant to the police station

for questioning.   The defendant then was transported to the

police station in the back seat of a marked police cruiser.

     5
       Later, during questioning at the police station, the
defendant explained that he occasionally stayed overnight in his
aunt's apartment.
                                                                    7


    At the station, the defendant was taken to an interview

room, where (after being advised of his Miranda rights and

signing a waiver form) the defendant was interviewed by Boston

police Detectives Doogan and Thompson.   The defendant cooperated

during the interview and, as it neared its end, Doogan told the

defendant he would arrange for a ride to take him back to his

aunt's apartment.   As Doogan left the interview room, however,

he saw a frame from the surveillance video frozen on a computer

monitor, depicting two distinctive light colored stains on the

top of the hood of the sweatshirt worn by the person who robbed

the convenience store.   Doogan returned to the interview room

and asked the defendant to remove his sweatshirt so that he

could test it for gunshot residue.   Doogan then took the

sweatshirt to the computer and compared the stains on its hood

to those shown on the surveillance video.   Satisfied that they

matched, Doogan returned to the interview room, resumed the

interview, and asked the defendant why his sweatshirt appeared

in the surveillance video.   He then placed the defendant under

arrest.

    Police thereafter secured the third-floor apartment while

they obtained a search warrant and, after obtaining the warrant

the next day, searched the apartment and recovered additional
                                                                     8


evidence.6   Twelve days later, police sought and obtained a

warrant to search the defendant's backpack; in it they found

fifteen twenty dollar bills (most of them sequentially

numbered), four ten dollar bills, five five dollar bills,

thirty-four one dollar bills, and some articles of clothing.

     Discussion.    We agree with the motion judge that the

patfrisk of the defendant on the sidewalk in front of the

apartment building was supported by reasonable suspicion.      The

defendant fit the general description broadcast in the police

dispatch in terms of his clothing, build, and skin color.

Quinonez noticed that he was sweating profusely as he walked

toward her from the general direction of the shooting and

robbery, suggesting that he either had been running, or was

nervous and agitated, or both.    Moreover, the defendant's

similarity to the general description included in the broadcast

dispatch was corroborated in more refined detail when Quinonez

observed the color surveillance video and was able to compare

directly her visual observations on the video with the man she

had just seen.7    The fact that he was coming from the direction


     6
       Police also recovered an orange baseball cap from the roof
of the building next door, and a black mask from a grassy strip
located between the buildings.
     7
       Although Quinonez did not return to the apartment building
until after Ezekiel pat frisked the defendant, her recognition
of the similarities between the defendant's appearance and the
images of the robber appearing in the surveillance video is
                                                                    9


of a recent robbery, in which a person had been shot, coupled

with the resemblance of his appearance to that captured on the

surveillance video, suggested the reasonable possibilities that

he was the person who had robbed the convenience store and that

he might be armed and therefore could pose a risk to the

officers.   See Commonwealth v. Narcisse, 457 Mass. 1, 10 (2010);

Commonwealth v. Garner, 59 Mass. App. Ct. 350, 366 (2003).

    We likewise agree with the motion judge that the actions of

police in requiring the defendant to go to the police station

for questioning constituted an arrest requiring probable cause.

See Commonwealth v. Melo, 472 Mass. 278, 297 (2015).   We part

company with the motion judge, however, in our conclusion that

probable cause existed at the time the police transported the

defendant to the police station for questioning.   In addition to

the factors recited above in support of reasonable suspicion, we

add that the defendant's unprompted and inculpatory reference to

the "shooting," despite the absence of any reference to a

shooting by Ezekiel or any of the other officers during their

initial conversation with him, and his additional agitation when

Ezekiel commented on the fact that no one had said anything

about a shooting, furnished ample basis to support a reasonable


imputed to the other officers engaged collectively in the
investigation. See, e.g., Commonwealth v. Perez, 80 Mass. App.
Ct. 271, 274 (2011). Moreover, the defendant matched the
description Quinonez had furnished and was at the exact location
she reported having seen him just minutes earlier.
                                                                    10


belief that the defendant was the person depicted in the video

committing the robbery.

      "[P]robable cause exists where, at the moment of arrest,

the facts and circumstances within the knowledge of the police

are enough to warrant a prudent person in believing that the

individual arrested has committed or was committing an offense."

Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied,

446 U.S. 955 (1980).    "In dealing with probable cause, . . . as

the very name implies, we deal with probabilities.    These are

not technical; they are the factual and practical considerations

of everyday life on which reasonable and prudent men, not legal

technicians, act."     Commonwealth v. Cast, 407 Mass. 891, 895-896

(1990), quoting from Draper v. United States, 358 U.S. 307, 313

(1959).

      The motion judge appears to have reached his conclusion

that probable cause did not exist principally by discounting the

force of two significant elements of the information supporting

it.   First, he likened the resemblance of the defendant to the

general description provided in police dispatches concerning the

robbery to the circumstances in Commonwealth v. Cheek, 413 Mass.

492, 496 (1992).   In that case, a down jacket worn by the

defendant was considered too common and generic an article of

clothing to distinguish the defendant from the population at

large on a cold fall night.    Ibid.   In the present case, by
                                                                   11


contrast, Quinonez did not merely recognize a similarity between

the defendant's otherwise common clothing and the clothing

described in the broadcast dispatch; she saw the color

surveillance video and was able to compare the images shown in

it directly with her observations of the defendant.   Although

the video did not display the robber's face (because he wore a

mask during the robbery), the level of detail available to

Quinonez for purposes of comparing the defendant's appearance to

the person shown on the video was far greater than the

information available to the police in Cheek.   See ibid.

    Second, the motion judge also surmised that Ezekiel should

have known that the defendant was likely to have gained

knowledge that the "incident" to which Ezekiel referred involved

a shooting from "news media" reports of the shooting which, the

judge concluded, would likely have been broadcast beginning

around 8:00 P.M.   There was no direct evidence of any such news

broadcasts, much less of any exposure by the defendant to any.

The judge based his finding to that effect on Ezekiel's

testimony that he saw reporters from various news outlets begin

to arrive at the scene of the robbery soon after he did.    From

that observation, the judge inferred that reporters would have

begun broadcasting reports of the incident on radio and

television, and posting reports on their respective Web sites,

beginning at around 8:00 P.M.   The judge further attributed to
                                                                  12


Ezekiel an awareness of that course of news broadcasts, so that

Ezekiel, in the judge's view, should not have considered it

suspicious when the defendant disclaimed involvement in a

"shooting" in response to Ezekiel's reference to an "incident."

To the extent that the judge found, as fact, that Ezekiel knew

or should have known that news broadcasts of the incident began

around 8:00 P.M., and also knew or should have known that the

defendant would have been exposed to those news broadcasts by

the time Ezekiel began speaking to him at 8:30 P.M., the finding

rests on speculation and conjecture rather than evidence, and is

clearly erroneous.   In any event, even if it is possible that

the defendant could before 8:30 P.M. have gained knowledge from

news broadcasts that a shooting had occurred at the convenience

store, Ezekiel was not compelled to adopt that view of the

defendant's otherwise unprompted reference to a shooting in his

assessment of its suspicious nature, particularly when the

defendant's state of agitation increased when Ezekiel pointed

out to the defendant that no one had said anything about a

shooting.

    Because the motion judge concluded that the evidence

obtained during the interview of the defendant at the police

station, including all statements made by the defendant, was not

justified by probable cause, he suppressed that evidence, as

well as evidence obtained upon execution of the search warrants
                                                                 13


for the third-floor apartment and the defendant's backpack (as

fruits of the evidence obtained during the interview).   However,

because that ruling rested on the erroneous conclusion that the

police were without probable cause to arrest the defendant at

the time they transported him to the police station, the order

allowing the motion to suppress evidence was in error and is

reversed.

                                   So ordered.
