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17-P-123                                               Appeals Court

                  COMMONWEALTH   vs.   JESSE HARRIS.


                           No. 17-P-123.

       Suffolk.       December 18, 2017. - March 19, 2018.

 Present:   Green, C.J., Vuono, Wolohojian, Kinder, & Englander,
                                JJ.


Constitutional Law, Search and seizure, Reasonable suspicion,
     Investigatory stop. Search and Seizure, Threshold police
     inquiry, Reasonable suspicion. Threshold Police Inquiry.
     Firearms. Evidence, Firearm, Knife, Flight. Practice,
     Criminal, Stipulation, Motion to suppress.



     Indictments found and returned in the Superior Court
Department on November 13, 2015.

     A pretrial motion to suppress evidence was heard by Robert
N. Tochka, J., and the cases were heard by Robert B. Gordon, J.,
on a statement of agreed facts.


     Rosemary Daly for the defendant.
     Meghan Joyce, Assistant District Attorney (L. Adrian
Bispham, Assistant District Attorney, also present) for the
Commonwealth.


    ENGLANDER, J.    This case raises an issue as to the

reasonableness of police conduct when the police engaged with,
                                                                   2


and ultimately stopped and seized, persons walking in a public

area.   The defendant appeals from his convictions of illegal

possession of a firearm and carrying a loaded firearm without a

license, claiming that (1) the firearm was seized in violation

of the Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights, and (2) the

trial judge failed to conduct the necessary waiver colloquy

before convicting the defendant based upon stipulated facts.

Because, as the Commonwealth acknowledges, the required colloquy

did not occur, the judgments must be vacated and the findings

set aside.

    That leaves the search and seizure issue, which has been

fully briefed and argued and which bears on any future

proceedings.   See Commonwealth v. Monteiro, 75 Mass. App. Ct.

280, 289 (2009).   The seizure of the gun resulted from what

began as a "casual" encounter between the defendant, his two

companions, and the Northeastern University (university) police,

outdoors on a September afternoon in the middle of the

university's campus.   The defendant contends that he and his

companions were stopped or seized, for constitutional purposes,

without the required reasonable suspicion, and that the gun

accordingly must be suppressed.   A Superior Court judge denied

the defendant's pretrial motion to suppress the gun, concluding

that the initial conversations with police were consensual and
                                                                      3


that no stop occurred until after the police officers had

observed a knife on the defendant's person, at which point the

seizure became entirely justified.     We conclude that although

the initial actions of the police were reasonable, the police

unreasonably extended the encounter, and then seized the

defendant before the knife appeared and without the requisite

reasonable suspicion.

     1.   Background.   a. Facts.1   This case arises, as our cases

often do, out of ordinary police work that developed into a

seizure and, ultimately, an arrest.     On September 23, 2015,

Officers John Sweeney, Jonathan Sprague, and Andrew Good of the

university police were working a day shift.     Officers Sweeney

and Sprague were on mountain bicycles, while Officer Good was

driving a marked police car.    These three officers were wearing

university police uniforms.2

     At 3:20 P.M., all three officers heard a radio broadcast

stating, "two black males in their early 20's, one wearing a

black hoody, and the other wearing a gray hoody, possibly with a

third person, casing the bike racks by Snell [L]ibrary" at the

university.   This information was initially provided by a

     1 The following facts are drawn from the motion judge's
findings of fact, together with uncontested testimony adduced at
the evidentiary hearing where the judge credited the witnesses'
testimony.

     2The officers have arrest powers pursuant to G. L. c. 22C,
§ 63. See Commonwealth v. Smeaton, 465 Mass. 752, 756 (2013).
                                                                     4


security officer employed by the university, who was stationed

by the bicycle racks because the area was a high-crime area for

bicycle theft.

     Approximately twenty minutes after the broadcast, Officer

Good saw two men fitting the broadcast description, along with a

female, pass his car from the direction of the library.     The

three people in the group were the defendant, the other male,

Dakari Ferguson-Boone, and the female, Dajunnay Wade-Joseph.3

The defendant and Ferguson-Boone were seated on bicycles,

although Wade-Joseph had no bicycle and the three were walking

together.    Officer Good got out of his car and called out to the

group, asking if he could speak to them, but they continued to

move away.

     Officers Sprague and Sweeney then approached the group.

Officer Sweeney said hello and asked if he could speak to the

three.   Although the exact details and timing of the ensuing

conversations are not spelled out in the judge's findings,

initially the officers stated to the group that there had been a

number of bicycle thefts in the area, and asked where the group

was coming from.    The companions responded that they had eaten

at Popeye's, a restaurant in the campus food court; at least one

of the group was carrying a container from that restaurant.

     3 The defendant does not contest the motion judge's factual
finding that he and Ferguson-Boone matched the description in
the broadcast.
                                                                    5


    Soon thereafter a third officer arrived, Officer Jim

Cooney, and three separate conversations ensued, in close

proximity.   Officer Sprague spoke with the defendant, Officer

Sweeney spoke with Ferguson-Boone, and Officer Cooney with Wade-

Joseph.    The motion judge found that "[t]he officers' tone of

voice was casual, conversational, and nonthreatening."      The

officers asked the two men to get off the bicycles and they

complied, placing the bicycles on the ground.    The officers

asked whether the men had stolen the bicycles, and they

responded that they had not.

    Officer Sprague asked the defendant if he had previously

had issues with the police, and he responded by raising his pant

leg, revealing a GPS-monitored ankle bracelet.    Officer Sprague

then asked the defendant for identification, and the other two

officers followed suit, asking for identification from Ferguson-

Boone and Wade-Joseph.    The defendant did not produce

identification, but did orally provide his name, date of birth

and address.   Officer Sprague then stepped a short distance away

from the group to call in the defendant's information to police

dispatch, in order to conduct a criminal history and warrant

check.    Ferguson-Boone provided some form of identification

card, which Officer Sweeney took and held, waiting for Officer

Sprague to complete his conversation with dispatch.    Wade-Joseph

produced her university student identification card.      While
                                                                   6


these conversations were occurring, Officer Good and another

officer came on the scene but "stood a distance away from the

ongoing conservations."

    As Officer Sprague was calling in the defendant's

information, Officer Sweeney observed the defendant make a

movement to his left side, causing his sweatshirt to ride up and

expose a knife clipped inside of his waistband.   Officer

Sweeney, "concerned for his and other officers' safety[,]

grabbed the knife handle to remove it."

    Officer Cooney then told the defendant to place his hands

on his head because he intended to conduct a patfrisk.      The

defendant began to comply, but then fled, chased by Officer

Good.   While fleeing, the defendant dropped the firearm that is

the subject of the motion to suppress.

    The motion judge did not make a finding as to how long the

encounter lasted from the time the officers first engaged the

group until the defendant fled.   The witnesses gave a range of

estimates, but the record reflects that the encounter was

approximately ten to fifteen minutes.

    The defendant was ultimately located and arrested, and

charged with illegal possession of a firearm, in violation of

G. L. c. 269, § 10(a); illegal possession of ammunition, in

violation of G. L. c. 269, § 10(h)(1); and carrying a loaded
                                                                     7


firearm without a license (FID card), in violation of G. L.

c. 269, § 10(n).

    b.     Pretrial proceedings.   The defendant filed a motion to

suppress all items seized.     After an evidentiary hearing, the

motion judge denied the defendant's motion, finding that "[t]he

initial encounter was not a stop or seizure" prior to the time

the officer saw and seized the knife.      The judge stated that

asking the defendant for biographical information did not effect

a seizure, and continued, "The fact that there were three

officers speaking to the defendant and his friends does not make

the consensual encounter a seizure.      Each officer spoke

separately to [the defendant] and his two friends.      [Officers]

Good and Cooney did not engage in conversation and stood about

100 yards from the interaction."

    Finally, the judge concluded that the seizure of the knife

was justified because it was a dangerous weapon on school

grounds.    See G. L. c. 269, § 10(j).

    c.     Trial.   After a bench trial upon stipulated facts, the

trial judge found the defendant guilty of all three charges and

allowed the Commonwealth's dismissal of the charge of possession

of ammunition without an FID card.     This appeal followed.

    2.     Discussion.   a.   Motion to suppress.   We deal first

with the motion to suppress.     The defendant's principal

contention is that he and his two companions were stopped or
                                                                    8


seized for constitutional purposes well before Officer Sweeney

saw the knife on the defendant's person, that this initial stop

or seizure was not justified by reasonable suspicion and was

thus unlawful, and that the gun, and the defendant's arrest, are

the fruits of that unlawful stop or seizure.    The Commonwealth

counters that the initial encounter was merely a field

interrogation observation (FIO) -- an informal and voluntary

conversation with the police that the defendant and his friends

were free to exit.   The motion judge agreed with the

Commonwealth, concluding that no stop occurred until the officer

saw and seized the knife, at which point a seizure was fully

justified.

    i.   Stop and seizure.   The first issue is when the stop or

seizure occurred for constitutional purposes under the above

facts.   The legal standard is well settled:   whether, "in view

of all the circumstances surrounding the incident, a reasonable

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

Commonwealth v. Meneus, 476 Mass. 231, 234-235 (2017), quoting

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

applying this standard, "we accept the [motion] judge's

subsidiary findings of fact absent clear error."    Commonwealth

v. Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v.

Eckert, 431 Mass. 591, 592 (2000).    Accord Commonwealth v.

Lyles, 453 Mass. 811, 814 (2009).    "However, we review
                                                                   9


independently the motion judge's application of constitutional

principles to the facts found."    Commonwealth v. Franklin, 456

Mass. 818, 820 (2010).

    The case law makes clear that police are free to approach

persons on the street, to engage in conversation, and to ask

questions of them, without such encounters raising

constitutional issues.   The police are not different from

ordinary persons in this regard.   The persons approached, of

course, have no obligation to respond and are free to walk away.

If the police communicate otherwise -- by word or action -- that

the person they are speaking to is not free to terminate the

conversation or to walk away, then the situation changes and

reasonable suspicion, at least, is required.   In applying the

"free to leave" standard, courts evaluate whether the police

have applied coercive power, such that a person's liberty to

walk away has been materially restrained.    See Barros, 435 Mass.

at 174-176.

    The question is an objective one, based upon the totality

of the circumstances, and although the answer in any particular

case is necessarily fact-dependent, we have some helpful guide

posts.   In Lyles, 453 Mass. at 813-814, the Supreme Judicial

Court held that where a police officer asks for and obtains an

identification card (ID card) from a subject, a "seizure" has

occurred for constitutional purposes -- at least while the
                                                                    10


officer retains the ID card.    The court reasoned that given the

importance of identification, such as a driver's license, in

today's society, a person who has relinquished his

identification would not feel free to terminate the encounter

and leave.    See id. at 815-816.   Nor would such a person feel

that he could demand that the identification be immediately

returned.    See also Barros, 435 Mass. at 175-176 (officer's

follow-up command to "come here" sufficient to constitute a

stop); Commonwealth v. Depina, 456 Mass. 238, 241-242 (2010);

Commonwealth v. Evans, 87 Mass. App. Ct. 687, 689-693 (2015).

    On the facts here we conclude that a stop occurred, for

constitutional purposes, at least by the time the officers

secured identification from each of the companions and began

calling in that information so that record checks could take

place.    By that point, what began as an informal "field

interrogation" had crossed the line into a coercive exercise of

police power.    The men had been asked to alight from their

bicycles.    The interrogation had lasted for several minutes and

had taken on a more formal character, with three separate

conversations ongoing.    And once identification was requested,

received, and called in, we do not believe any of the subjects,

objectively, would reasonably have felt free to leave.      See id.

at 690.     Under Lyles, a stop and seizure had clearly occurred

with respect to each of the defendant's companions, and we do
                                                                    11


not think the defendant's circumstances were materially

different.   He had provided his personal information orally, and

Officer Sprague was engaged in calling it in.     See Lyles, 453

Mass. at 813-816.   Our conclusion is buttressed by Officer

Sprague's testimony that while he was calling in to dispatch,

the other officers were "keeping their eye" on the defendant and

Ferguson-Boone "so that neither . . . would leave while [Officer

Sprague] was getting that information."

     ii.   Reasonable suspicion.    Having concluded that a stop

occurred for constitutional purposes prior to the observation of

the knife, the next question is whether, at the time of the

stop, the police had the requisite reasonable suspicion.      Under

our cases, a stop requires reasonable suspicion of identifiable

criminal activity -- "that a person has committed, is

committing, or is about to commit a crime."     Commonwealth v.

Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v.

Silva, 366 Mass. 402, 405 (1974).    We conclude that at the time

of the stop, the officers lacked such reasonable suspicion.4

     When the police first approached the group they knew (1)

that there had been a report, then twenty minutes old, that two

men had been observed "casing" the university's bicycle racks,




     4 No argument was advanced that the defendant was entitled
to less constitutional protections due to his ankle bracelet, so
we do not address that issue.
                                                                    12


(2) that the two men in the group matched the description given,

and (3) that those two men were now on bicycles.

    On the above facts it was surely reasonable for the

officers to approach the men to investigate possible bicycle

theft, which is what the officers did.   They approached and

asked, inter alia, questions directed to how the men had

obtained the bicycles.    Indeed, the officers did so initially

without effecting a stop or seizure in the constitutional sense;

the initial questioning was consensual and noncoercive.      But

importantly, over the next several minutes they learned nothing

that could have added to their suspicions.   The men stated the

bicycles were not stolen.   One of the group was a student at the

university, and their explanation that they had been in the food

court was readily verifiable from the food they carried.      And

the police testified, at the motion to suppress hearing, both

that they had no reason to disbelieve the men and that they had

no knowledge that any bicycle theft had occurred.

    At that point, once the police had knowledge that the

bicycles were not stolen, they had no basis to effect a

constitutional seizure because there was not then a reasonable

basis to believe that a crime had occurred, or was likely to

occur.   The only possible criminal activity they were aware of

involved bicycle theft.   But they had no information that

bicycle theft had actually occurred, and while observed "casing"
                                                                   13


can, of course, be a basis for a stop, there must be reasonable

suspicion at the time of the stop that a crime is likely to

occur.   See Terry v. Ohio, 392 U.S. 1, 6 (1968).   Here, there

was no sign that a theft was likely -- the men were encountered

some distance from and moving away from the bicycle racks, with

lunch in their hands.   If any "casing" had occurred previously,

it had plainly ended some time ago.

    The touchstone of search and seizure law is reasonableness,

and in this context reasonableness has at least two dimensions -

- the reasonableness of initiating an encounter, and the

reasonableness of the scope of the encounter.   See Commonwealth

v. Gomes, 453 Mass. 506, 509 (2009), quoting from Commonwealth

v. Wilson, 441 Mass. 390, 393-394 (2004) ("In 'stop and frisk'

cases our inquiry is two-fold:   first, whether the initiation of

the investigation by the police was permissible in the

circumstances and, second, whether the scope of the search was

justified by the circumstances").   Here, there was no sound

basis for the police to extend the encounter beyond its initial

purpose by requesting identification and conducting a criminal

history or warrant check.   By the time the constitutional stop

and seizure occurred, reasonable suspicion was lacking.

    Just recently in Commonwealth v. Cordero, 477 Mass. 237

(2017), the Supreme Judicial Court expressed a similar principle

in the context of a traffic stop that turned into an arrest for
                                                                     14


possession of drugs.   There, the police lawfully stopped the

defendant for a broken taillight, broken brake lights, and an

impermissible degree of window tint.     See id. at 242.   However,

the police prolonged the stop by questioning the driver about

his travel history that day, and maintained the stop well after

the time needed to document the results of the traffic

investigation.   See id. at 242-247.    The continued questioning,

which included repeated requests to search the vehicle,

ultimately resulted in a search of the vehicle's trunk, in which

the officers found a considerable amount of what they believed

to be heroin.    See id. at 240-241.

    The Supreme Judicial Court concluded the drugs must be

suppressed.   While the initial stop was lawful, "[a] routine

traffic stop may not last longer than 'reasonably necessary to

effectuate the purpose of the stop.'"     Id. at 241 (citation

omitted).   The court stated:

    "Ultimately, by the time the trooper finished discussing
    with the defendant the broken lights and the window tint,
    the investigation of the civil traffic violations was
    complete. Because this investigation did not give rise to
    reasonable suspicion of criminal activity, the trooper did
    not have a legitimate basis to detain the defendant, and
    the defendant should have been allowed to drive away."

Id. at 247.

    In this case, the police exercised coercive power to effect

the stop and seizure before they observed or knew anything of

the knife in the defendant's waistband.    At the time they
                                                                   15


effected the stop they lacked reasonable suspicion of an

existing or intended crime.    The defendant and his companions

accordingly should have been left to move on.    The subsequent

seizure of the knife, the defendant's flight, and the recovery

of the gun are all fruits of the unlawful stop and should have

been suppressed.

    b.   Lack of colloquy before trial on stipulated facts.

Finally, we note that the judgments would have had to be vacated

regardless of our conclusion on the suppression issue, because

the trial judge failed to conduct the required colloquy before

proceeding with the trial based upon stipulated facts.     The

defendant stipulated that the seized firearm had been in his

"exclusive possession," that it contained ammunition, and that

he had no "valid FID card."    These facts constituted all the

elements of the crime charged, and the stipulation was thus the

equivalent of a guilty plea.   A judge may not conduct a trial on

such stipulated facts without first having a colloquy to

establish the defendant's knowing and voluntary waiver of his

constitutional rights, including rights against self-

incrimination and to confront the witnesses against him.     See

Commonwealth v. Lewis, 399 Mass. 761, 763-764 (1987).

    Here, the trial judge conducted a colloquy regarding the

defendant's waiver of trial by jury, but did not conduct the
                                                               16


required colloquy regarding the defendant's stipulation to facts

that established guilt.

    3.   Conclusion.   The judgments are vacated, and the

findings are set aside.

                                   So ordered.
