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SJC-12105

              COMMONWEALTH   vs.   McGREGORY MENEUS.



     Middlesex.      September 8, 2016. - January 11, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Firearms. Constitutional Law, Investigatory stop, Stop and
     frisk, Reasonable suspicion, Search and seizure. Search
     and Seizure, Threshold police inquiry, Protective frisk,
     Reasonable suspicion. Practice, Criminal, Motion to
     suppress.



     Complaint received and sworn to in the Cambridge Division
of the District Court Department on June 30, 2006.

     A pretrial motion to suppress evidence was heard by James
L. LaMothe, Jr., J., and a motion for reconsideration was
considered by him; and the case was heard by Michele B. Hogan,
J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     David Gerson for the defendant.
     Randall F. Maas, Assistant District Attorney, for the
Commonwealth.
                                                                     2


     HINES, J.   After a jury-waived trial in the Cambridge

District Court, the defendant was convicted of various firearms

charges.   The firearm was discovered after the defendant and a

group of young black males were stopped by Cambridge police

officers to investigate a report of shots fired at a vehicle.

The defendant filed a motion to suppress the firearm, claiming

that the police lacked reasonable suspicion for the stop.      The

motion judge denied the motion, as well as a motion for

reconsideration thereof filed in light of our decisions in

Commonwealth v. Martin, 457 Mass. 14 (2010), and Commonwealth v.

Narcisse, 457 Mass. 1 (2010).1   The defendant appealed from his

convictions and the Appeals Court affirmed in an unpublished

memorandum and order issued pursuant to its rule 1:28.    We

allowed the defendant's application for further appellate

review.    We conclude that the police lacked reasonable suspicion

for the stop and that the denial of the motion to suppress was

error.    Therefore, we vacate the conviction and remand for a new

trial.




     1
       The defendant argued that the judge's decision on the
motion to suppress conflicted with our holdings in Commonwealth
v. Martin, 457 Mass. 14, 19-20 (2010), and Commonwealth v.
Narcisse, 457 Mass. 1, 9 (2010), that police officers may not
progress from a consensual encounter to a protective frisk
without reasonable suspicion that the individual is engaged in
criminal activity and is armed and dangerous. The judge denied
the motion.
                                                                    3


     Background.   We summarize the facts as found by the motion

judge, supplemented by uncontroverted evidence drawn from the

record of the suppression hearing and evidence that was

implicitly credited by the judge.2   Commonwealth v. Melo, 472

Mass. 278, 286 (2015).

     In the late evening hours of April 29, 2006, Debra Santos

reported to police that a gunshot struck her vehicle as she was

driving on Windsor Street in Cambridge.   At approximately 10:50

P.M., Cambridge police officers Janie Munro and David Porter met

Santos at the intersection of Windsor and Washington Streets,

near the location where the shots allegedly were fired.    Santos

told the police that she heard a loud noise that she believed

was a gunshot and that immediately thereafter she saw a group of

young black males run into the courtyard of the Washington Elms

housing complex.   She did not indicate to the police that this

group was involved in the shooting at her vehicle, and she

provided no additional descriptive information about the

individuals she had seen running into the courtyard.

     While speaking to Santos, Officer Munro observed a group of

young black males who were standing on a sidewalk near the

     2
       While assembling the record for the appeal, appellate
counsel learned that the recording of the January 16, 2009,
proceeding on the motion to suppress, consisting of Officer
Janie Munro's testimony on direct examination, could not be
located. After a hearing on the defendant's motion to perfect
the record, the motion judge issued written findings as to the
content of Officer Munro's direct testimony.
                                                                     4


Washington Street entrance to the housing complex.    The group

was "[l]iterally right around the corner" from where Santos had

stopped after hearing what she believed to be gunshots.

Officer Munro's attention was drawn to the group by one of the

males who "st[u]ck his head outside [of the courtyard] and

st[u]ck his head back inside."    The officers drove their cruiser

to where the group was standing and approached the group on

foot.   The defendant, one of five or six young black males in

the group, was wearing a black bomber jacket with a visibly

distinctive orange lining.     The officers asked if anyone had

information about gunshots being fired in the area.     They denied

any knowledge of a shooting.

     After questioning the group, the officers requested

permission to pat frisk them for "officer safety."     At the time

of this request, the police officers had had no prior

interaction with any of the young men in the group and no

information that anyone previously had been involved in criminal

activity.    The judge made no finding that the defendant or

anyone else in the group engaged in suspicious or potentially

threatening conduct toward the police at any time during the

encounter.   Up until the request to pat frisk the group, the

tone had been conversational.    But thereafter, the young men

expressed their displeasure with the stop and with being asked

to submit to a patfrisk.     Some of them submitted to the
                                                                   5


officers' request but they were "unhappy" about it.    The judge

made no finding that the defendant consented to the patfrisk.

    The defendant became argumentative when the police began

pat frisking some members of the group, and he attempted to

terminate the encounter by walking away.    As the defendant

"started moving backwards" away from the group, one of the

officers started pursuing him.    The defendant turned and began

running away from the area.    The officers yelled, "Cambridge

police, stop," and pursued the defendant into the housing

complex.   The defendant ignored the order to stop and continued

running.   During the chase, the defendant passed Santos, who

grabbed his clothing, slowing his flight from the area.     After a

brief chase, the police eventually caught up to the defendant on

Windsor Street where he was "assisted to the ground" by Officer

Porter.    As the defendant was being brought to his feet, the

officers discovered a firearm that had been underneath his body.

Although Santos remained on the scene while the police

investigated the group, the police did not ask if she could

identify anyone as being in the group of young men she observed

running into the courtyard after hearing the gunshots.

    The judge explicitly credited Officer Munro's testimony

that, at the time the police initiated the pursuit of the

defendant into the courtyard, she had "no information" that the

defendant was a suspect in the shots fired call or any other
                                                                   6


crime.   Consistent with this finding, Officer Porter

acknowledged that, at the time of the request to pat frisk the

group, he had no information implicating the defendant or any of

the other young black males in criminal activity.      Officer

Porter agreed that at the time of the pursuit, the defendant was

not a suspect in a crime and that he was merely "a person in

question."

    Discussion.     1.   Standard of review.   "In reviewing a

ruling on a motion to suppress evidence, we accept the judge's

subsidiary findings of fact absent clear error and leave to the

judge the responsibility of determining the weight and

credibility to be given . . . testimony presented at the motion

hearing."    Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).

However, "[w]e review independently the application of

constitutional principles to the facts found."      Id.   The

Commonwealth bears the burden of demonstrating that the actions

of the police officers were within constitutional limits.

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

    The analysis of the constitutional propriety of the police

officers' conduct focuses on two questions:      (1) whether and

when the defendant was seized in a constitutional sense; and (2)

whether the facts known to the police at the time of the seizure

establish reasonable suspicion that the defendant had committed,

was committing, or was about to commit a crime.      Commonwealth v.
                                                                    7


Depina, 456 Mass. 238, 241-242 (2010).     The defendant argues

that the police effected a seizure of his person when they

manifested their intent to pat frisk the group and, at that

moment, the police lacked reasonable suspicion of criminal

activity.   The Commonwealth counters that the seizure occurred

when the police commanded the defendant to stop and, at that

point, the information known to the police justified their

inquiry.

    2.     The seizure.   A person is seized under art. 14 of the

Massachusetts Declaration of Rights "only if, in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave."

Commonwealth v. Barros, 435 Mass. 171, 173-174, (2001), quoting

United States v. Mendenhall, 446 U.S. 544, 554 (1980).     The

judge's ruling on the motion to suppress did not specifically

identify the moment at which the defendant was seized.     We are

persuaded, however, that a seizure for constitutional purposes

occurred when one of the police officers advanced toward the

defendant as he turned to leave the area in an apparent attempt

to avoid an imminent patfrisk.

    As the judge found, the young men in the group initially

were cooperative with the police in responding to the inquiry

about the alleged shooting.    Their willingness to cooperate

changed, however, when the police requested permission to pat
                                                                     8


frisk the group "for officer safety."    Some members of the group

eventually acquiesced to the patfrisk request, albeit

reluctantly.   The defendant, however, remained defiant and

"argumentative" during the encounter, never manifesting any

intent to submit to the patfrisk.    Observing that the police

were intent on pat frisking the group, the defendant attempted

to leave the scene.   The police officer's response, pursuing the

defendant as he backed away, communicated unequivocally that

refusing to submit to the "request" was not an option.     That act

added a "compulsory dimension" to the encounter, transforming it

from consensual to obligatory.   See Barros, 435 Mass. at 174.

Thus, where the police officer's conduct impeded the defendant's

freedom of movement, he was seized for constitutional purposes,

as "a reasonable person would have believed that he was not free

to leave" at that point in the encounter.    Id. at 175-176.

    3.   Reasonable suspicion.   Once a seizure has occurred, the

issue for the court is "whether the stop was based on an

officer's reasonable suspicion that the person was committing,

had committed, or was about to commit a crime."    Commonwealth v.

Martin, 467 Mass. 291, 303 (2014).   "That suspicion must be

grounded in 'specific, articulable facts and reasonable

inferences [drawn] therefrom' rather than on a 'hunch.'"

DePeiza, 449 Mass. at 371, quoting Commonwealth v. Scott, 440

Mass. 642, 646 (2004).   Reasonable suspicion is measured by an
                                                                    9


objective standard, Commonwealth v. Mercado, 422 Mass. 367, 369

(1996) 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.   Commonwealth v. Warren, 475 Mass. 530, 534

(2016).

    The motion judge ruled that police had reasonable suspicion

for the seizure based on a combination of factors:   (1) the

defendant was part of a group of black males matching the

description provided to police by the victim; (2) the stop

occurred in a "high crime" area; (3) the purpose of the stop was

to investigate a report of shots fired, a crime posing an

imminent threat to public safety; (4) the defendant and his

companions were in close geographical and temporal proximity to

the alleged crime at the time of the stop; (5) the defendant

fled from the scene; and (6) the officers' safety justified the

patfrisk.   We review the judge's findings as a whole, bearing in

mind that "a combination of factors that are each innocent of

themselves may, when taken together, amount to the requisite

reasonable belief" that a person has, is, or will commit a

particular crime.   Commonwealth v. Feyenord, 445 Mass. 72, 77

(2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth

v. Fraser, 410 Mass. 541, 545 (1991).   Assessing the totality of

the circumstances leading to the stop of the defendant, we
                                                                     10


conclude that the facts known to the police at the time of the

seizure were not sufficient to establish reasonable suspicion

that the defendant was connected to the alleged shooting at the

victim's vehicle.

    a.   The description of the suspects.     Neither the initial

dispatch about the alleged shooting nor the police interview of

Santos produced anything more than a very general description of

the possible perpetrators.   Consequently, when the police

stopped the defendant and the other members of the group, they

knew only that "a group of young black males" had run into the

Washington Elms housing complex immediately after Santos heard

what she assumed to be gunfire.     Other than the race and age of

the group seen running into the housing complex, the police had

none of the usual descriptive information such as distinctive

clothing, facial features, hairstyles, skin tone, height,

weight, or other physical characteristics that would have

permitted them to reasonably and rationally narrow the universe

of possible suspects.

    "We have no hard and fast rule governing the required level

of particularity [of a description]; our constitutional analysis

ultimately is practical, balancing the risk that an innocent

person . . . will be needlessly stopped with the risk that a

guilty person will be allowed to escape."     Commonwealth v.

Lopes, 455 Mass. 147, 158 (2009).    Nonetheless, we have been
                                                                 11


consistent in the view that a general description such as "a

group of young black males" falls far short of the particularity

necessary to establish individualized suspicion that a suspect

is committing, has committed, or is about to commit a crime.

See e.g., Warren, 475 Mass. at 535 (description of suspects as

"two black males" wearing "dark clothing" and "one black male"

wearing a "red hoodie," without any information as to other

physical characteristics, lacked sufficient detail to constitute

particularized reasonable suspicion); Commonwealth v. Walker,

443 Mass. 867, 872-873, cert. denied, 546 U.S. 1021 (2005)

(description of robber by race alone without other factors

suggestive of criminal activity insufficient for reasonable

suspicion); Commonwealth v. Cheek, 413 Mass. 492, 496 (1992)

(description of suspect as "black male with a black 3/4 length

goose" coat insufficient for individualized suspicion, as it

could have fit large number of men).   Therefore, the mere

presence of a nondescript group of young black males standing

near the scene of a reported shooting did not, standing alone,

sufficiently narrow the range of possible suspects to include

this group of individuals.

    We recognize that 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
                                                                   12


investigation.   Mercado, 422 Mass. at 371 (general description

alone not sufficient to establish reasonable suspicion requisite

to justify stop, but when combined with other factors "may allow

the police to narrow the range of suspects to particular

individuals").   In this case, however, the totality of facts

known to the police at the time of the seizure lacked sufficient

detail to add flesh to the bare-bones description provided by

Santos.   Rather, the information then available to the police

detracted from any value Santos's description may have had in

identifying the group as suspects in the shooting.   More

specifically, it does not appear that Santos ever identified the

defendant and his companions as the same group she saw running

into the courtyard.    Also, the defendant was wearing distinctive

clothing, a fact not mentioned by Santos in her description of

the fleeing group.    We note as well that the group did not

engage in suspicious behavior or other conduct suggesting that

only moments earlier, they had fired shots at Santos's vehicle.

See Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005)

("Strange, furtive, or suspicious behavior or movements can

infuse otherwise innocent activity with an incriminating

aspect").   Thus, Santos's very general description of the group

seen running into the housing complex added nothing of value to

the reasonable suspicion calculus.
                                                                   13


    b.   High crime area.   The judge found that the stop

occurred in a "high crime" area and ruled that this fact

contributed to the police officers' reasonable suspicion that

the defendant's group had fired the shot at Santos's vehicle.

    Although the characterization of a particular neighborhood

as a "high crime" area has been recognized as a factor in the

reasonable suspicion analysis, Commonwealth v. Johnson, 454

Mass. 159, 163 (2009), we have been clear that "[j]ust being in

a high crime area is not enough to justify a stop."

Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).    Indeed,

whenever this factor is considered in the reasonable suspicion

analysis, we have urged a cautious approach because "many

honest, law-abiding citizens live and work in high-crime areas.

Those citizens are entitled to the protections of the Federal

and State Constitutions, despite the character of the area."

Commonwealth v. Gomes, 453 Mass. 506, 512 (2009), quoting

Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001).     The

exercise of that caution necessarily means that we look beyond

the term "high crime area" to determine whether the inferences

fairly drawn from that characterization "demonstrat[e] the

reasonableness of the intrusion."   Johnson, supra.   Here, this

factor lacks relevance in the reasonable suspicion calculus, as

there was no negative inference to be drawn from the location of

the stop.
                                                                  14


    c.   The nature of the reported crime.   The motion judge

considered the report of shots fired as an "imminent threat to

public safety" and, on that basis, concluded that the police

were permitted to stop the defendant even without direct

information that he had committed the crime under investigation.

The judge relied on Commonwealth v. Foster, 48 Mass. App. Ct.

671, 674-675 (2000), where the Appeals Court held that a police

officer may pat frisk an individual, even in the absence of

reasonable suspicion of criminal activity, if the circumstances

present an "imminent threat to public safety."   The judge also

denied the defendant's motion for reconsideration based on our

holding in Narcisse, 457 Mass. at 9, that "police officers may

not escalate a consensual encounter into a protective frisk

absent a reasonable suspicion that an individual has committed,

is committing, or is about to commit a criminal offense and is

armed and dangerous."   This was error.

    First, our holding in the Narcisse case casts doubt on the

wisdom of the judge's steadfast reliance on the Foster case as

support for his ruling that the actions of the police officers

were constitutionally permissible because of the nature of the

crime under investigation, a report of gunshots being fired at a

motor vehicle.   The rationale underlying Foster, derived

principally from Commonwealth v. Fraser, 410 Mass. 541 (1991),

was undercut substantially in Narcisse, where the court
                                                                   15


specifically "disavow[ed] any suggestion in Fraser that we were

establishing a new or lesser standard in our stop and frisk

jurisprudence."   Narcisse, 457 Mass. at 9.   The motion judge

erred, therefore, in disregarding this limitation of Fraser,

which in turn called into question the continued vitality of

Foster.

    Second, although our cases have recognized that the

"gravity of the crime and the present danger of the

circumstances" may be considered in the reasonable suspicion

calculus, we have not gone so far as to carve out a public

safety exception based on this factor.   See e.g., Depina, 456

Mass. at 247, and cases cited.    In Lopes, 455 Mass. at 158,

where the police were investigating a homicide, the court

considered the nature of the crime but still conducted a

reasonable suspicion analysis.    There, the police stopped the

defendant's vehicle despite minor discrepancies between that

vehicle and the witness's description.   The defendant's vehicle

was similar in color to the suspect vehicle and had tinted

windows, but it had a Cape Verdean flag hanging from the rear

view mirror instead of from the "back" of the vehicle as

described by the witness.   Id.   Although the court did not base

its determination that the stop was constitutional on the nature

of the crime, it was relevant to the analysis.    The court

assessed the constitutionality of the stop, framing the issue in
                                                                  16


terms of reasonableness, and concluded that "[a]n objectively

reasonable police officer [investigating a homicide] would not

have allowed the van to pass simply because the Cape Verdean

flag hung from the inside rear view mirror rather than the

'back' of the van."   Id. at 158.

    Likewise, in Depina, 456 Mass. 246, the court considered

whether a stop of the defendant in the immediate vicinity of and

close in time to a recent shooting was justified by reasonable

suspicion.   Although the nature of the crime was a factor in the

reasonable suspicion calculus, the court considered the totality

of the information known to the police, including the

defendant's geographical and temporal proximity to the scene of

the crime and his suspicious behavior in the wake of the

shooting, in determining that the stop of the defendant was

constitutionally justified.   Id. at 247.   Thus, the fact that

the crime under investigation was a shooting, with implications

for public safety, was relevant but not dispositive in

determining the reasonableness of the stop.

    d.   Geographical and temporal proximity to the crime.     The

seizure of a suspect in geographical and temporal proximity to

the scene of the crime appropriately may be considered as a

factor in the reasonable suspicion analysis.    Commonwealth v.

McKoy, 83 Mass. App. Ct. 303, 313 (2013).     The judge found that

the defendant and his companions were "literally around the
                                                                        17


corner" from where Santos saw the group of black males run into

the courtyard only minutes after the alleged shooting occurred.

This geographical and temporal proximity was relevant to the

reasonable suspicion calculus.       The inference from such

proximity adds little value to that calculus here, however,

where the police had no information connecting the defendant and

his companions to the group Santos had seen running into the

courtyard.    Santos was present on the scene and participated in

the take-down of the distinctively dressed defendant, but she

made no identification of the group, and the judge made no

finding that she ever confirmed that the group approached by the

police was the same group she had seen earlier.

    e.     The defendant's flight from the scene.     The motion

judge concluded that the defendant's flight from the scene as

the officers began pat frisking the other members of the group

"creat[ed] more suspicion that he might be armed or involved in

illicit activity."    We disagree.

    As noted, the seizure occurred when Officer Porter began to

pursue the defendant to prevent his avoidance of the patfrisk

that already had begun with the other members of the group, not

later in the encounter when the police commanded the defendant

to stop.   Therefore, the issue of flight as a factor in

reasonable suspicion is focused on defendant's action in backing

away to avoid a patfrisk to which he did not consent.          In the
                                                                  18


absence of constitutional justification for a threshold inquiry,

"our law guards a person's freedom to speak or not to speak to a

police officer.   A person also may choose to walk away [or run

away], avoiding altogether any contact with police."   Warren,

475 Mass. at 538, quoting Barros, 435 Mass. at 178 (breaking eye

contact and refusing to answer officer's initial questions did

not provide reasonable suspicion for detention or seizure as

"[i]t was the defendant's right to ignore the officer").     Having

not consented to the patfrisk, the fact that the defendant

backed away from the scene permits no inference of criminal

activity.

    f.   Officer safety.   The judge ruled that the police were

justified by concerns for their safety in seizing the defendant.

The judge's findings, however, undermine that conclusion.    In

assessing the credibility of Officer Munro's testimony, the

judge found that she "had no information that [the defendant]

had committed a crime at the time [the police initiated the

chase] into the courtyard."   That finding eliminated the

defendant as a suspect in the crime under investigation and,

more generally, as a suspect in any other criminal activity.

Because the crime under investigation involved the discharge of

a firearm and none of the information available to the police

supported a reasonable belief that the defendant had committed

that crime or that he was armed, we are not persuaded that the
                                                                  19


concern for officer safety supports the reasonable suspicion

calculus.

    Conclusion.   The convictions are vacated and the matter is

remanded for further proceedings consistent with this opinion.

                                   So ordered.
