Commonwealth of Massachusetts

Middlesex, SS. Superior Court
No. 2002-416



Jeff Santiago

Memorandum in Support of Motion to Suppress Evidence

Issue Presented

Whether the police had a reasonable suspicion that the defendant was involved in criminal activity based solely on the fact that they observed him carry an ordinary plastic shopping bag out of the house of a person they suspected was in possession of a stolen gun.

Relevant Facts

For purposes of this memorandum, the defendant assumes that the Commonwealth will present evidence consistent with its statement of the case previously filed with this court. The relevant portions of the statement of the case are as follows:

On September 5, 2001, Everett police responded to the home of Mr. Victor Dragone upon a report that a firearm had been taken from Mr. Dragone's home while he had been away for the Labor Day weekend. The firearm was a .44 Magnum with a distinctive marking of the owner's initials on it. Officers developed preliminary information to initiate an investigation.

Detectives continued the investigation into the location of the stolen firearms and in speaking to multiple witnesses learned that the firearm in question had been transferred by at least two individuals; the investigation led to information that the firearm had been ultimately transferred to an individual named Jermel Thrash. The detectives focused their investigation on this individual and in the process of doing so, one detective came to be in a position outside the home of Mr. Thrash observing the entrance of that location.

While in this surveillance a position, the detective observed an individual, later identified as the defendant, arrive at the home of Jermel Thrash, enter and subsequently leave that location. As he was leaving, the detective made specific and particular observations about a shopping bag that the defendant was carrying out of the home. The detective followed the defendant as he left the area as a passenger in a vehicle; when the defendant got out of the vehicle from a position in the middle of the street, the detective got out of his car and told the defendant to stop. The defendant fled and refused repeated commands from the detective. Ultimately, the detective was able to apprehend the defendant as he attempted to scale a fence and flee from the officer; as he did this, he took [possession] of the bag he had been observing the defendant carrying and found a .44 Magnum firearm inside that [bag] which contained the distinctive initial markings.


I. The Police Had No More Than An Unsubstantiated Hunch That The Defendant Was Involved In Criminal Activity When They Observed Him Carrying An Ordinary Plastic Shopping Bag Out Of The House Of A Person They Suspected Was In Possession Of A Stolen Gun

Where the police stop a suspect without a warrant, the Commonwealth has the burden of justifying that siezure. Commonwealth v. Ferguson, 410 Mass. 611, 614 (1991); Commonwealth v. Hill, 51 Mass. App. Ct. 598, 604 (2001). In this case, the Commonwealth cannot meet that burden. While the officer may have had a hunch that the defendant was up to no good, that hunch failed to amount to even a reasonable suspicion that he was engaged in unlawful activity. Thus, the stop of the defendant and resulting search violated his right to be free from unlawful seizures under both the Fourth Amendment to the United States Constitution and art 14 of the Massachusetts Declaration of Rights. He is entitled to suppression of all evidence obtained as a result of the illegality-including the physical evidence, his statements made at the scene, and his statements made at the police station.
Not every encounter between the police and a citizen rises to the level of a seizure. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Stated otherwise, a threshold inquiry is initiated by a stop. Id. at 16-19. See United States v. Cortez, 449 U.S. 411, 417 (1981).

Where, as here, a police officer orders a suspect to stop, such conduct is a sufficient show of authority to constitute a seizure within the meaning of the Fourth Amendment. Commonwealth v. Moore, 32 Mass. App. Ct. 924 (1992). Further, “a pursuit, which, objectively considered, indicates to a person that he would not be free to leave the area (or to remain there) without first responding to a police officer's inquiry, is the functional equivalent of a seizure, in the sense that the person being pursued is plainly the object of an official assertion of authority, which does not intend to be denied[.]” Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). See Commonwealth v. Smigliano, 427 Mass. 490, 491-492 (1998); Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). In this case, the pursuit described by the Commonwealth clearly was intended to effectuate a stop, and viewed objectively, implicated the defendant's constitutional right to be free from unlawful seizures.

The question then becomes whether the police reasonably suspected that the defendant was engaged in criminal activity. Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 65-66 (1997). See Commonwealth v. Mercado, 422 Mass. 367, 369 (1996); Commonwealth v. Silva, 366 Mass. 402, 405 (1974). “The reasonableness of the officer's suspicion depends upon the existence of 'specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. A mere “hunch” is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one,' [Commonwealth v. Silva, 366 Mass. at 406], 'view[ing] the circumstances as a whole.'” Id. at 66, quoting Commonwealth v. Stoute, 422 Mass. 782, 790 (1996); Commonwealth v. Mercado, 422 Mass. at 369.

Here, the police had some information suggesting that Jermel Thrash might be in possession of a stolen gun. However, the evidence on that point was less than compelling. The police had received a number of conflicting accounts as to who had the gun and how it came into their possession. Thrash specifically denied possessing the gun. Assuming, however, that he did have the gun, the question then becomes whether the police had specific and articulable facts supporting their belief that the defendant was carrying the gun out of the house at the time he was observed.

The police had no information that the defendant or anyone else planned to remove the gun from the house. Contrast Commonwealth v. Va Meng Joe, 425 Mass. 99, 103-104 (1997) (events observed by police had been predicted by informant); Commonwealth v. Ramos, 402 Mass. 209, 214 (1988). Moreover, as Captain Bontempo noted in his report, nothing was protruding from the bag, nor could he observe its contents. In fact, aside from the fact that it was big enough to hold a large pistol, there was nothing distinctive about the bag. It was an ordinary plastic shopping bag. Compare Commonwealth v. Alvarado, 420 Mass. 522, 549 (1995) (“The view of an object which may be used for lawful as well as unlawful purposes, even a container of the type commonly used to store controlled substances, is not sufficient to provide the viewing officer with probable cause to seize that object or arrest the individual possessing that object.”); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650-651 (1993). Contrast Commonwealth v. Ortiz, 376 Mass. 349 (1978) (package resembled a “dime bag” of heroin); Commonwealth v. Johnson, 32 Mass. App. Ct. 355 (1992) (object resembled packet of cocaine).

Finally, the fact that the defendant attempted to flee when ordered to stop cannot be considered in support of the officer's initial suspicion. The defendant's conduct took place subsequent to and as a direct result of the unlawful order to stop. It cannot justify the decision to make the stop. See Commonwealth v. Borges, 395 Mass. 788, 796 (1985) (defendant's attempt to swallow evidence and flee did not dissipate the taint of the initial illegal detention by police); Commonwealth v. Wren, 391 Mass. 705, 708 n.2 (1984) (a suspect's attempt to escape does not justify the officer's initial decision to signal a stop).

It is well-settled law that any evidence obtained through an illegal stop or seizure is a "fruit of the poisonous tree" which may not be admitted into evidence against a defendant. Wong Sun v. United States, 371 U.S. 471, 485- 486 (1963). This rule applies to all evidence stemming from the illegal stop. Commonwealth v. LeBlanc, 407 Mass. 70, 75 (1990). It applies to both physical evidence, Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978), and statements which follow the illegal stop. Commonwealth v. O'Connor, 21 Mass. App. Ct. 404, 406 (1986). In this case, the rule entitles the defendant to suppression of all of the physical evidence, as well as all statements made by him. See Commonwealth v. Badore, 47 Mass. App. Ct. 600, 601-602 (1999); Commonwealth v. Medeiros, 45 Mass. App. Ct. 240, 242-243 (1998).

II. Conclusion

Based on the authorities cited and the reasons aforesaid, the defendant requests that his motion to suppress be allowed.

Respectfully submitted,

Jeff Santiago,
By his attorney,

Joseph J. Machera
B.B.O. # 311160
220 Beach Street
Revere, MA 02151
(781) 289-8646

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