NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-1400 Appeals Court
COMMONWEALTH vs. CAJOU JOHNSON.
No. 14-P-1400.
Essex. September 14, 2015. - December 9, 2015.
Present: Green, Wolohojian, & Hanlon, JJ.
Firearms. Practice, Criminal, Motion to suppress, Findings by
judge. Constitutional Law, Search and seizure,
Investigatory stop, Reasonable suspicion. Search and
Seizure, Reasonable suspicion, Clothing.
Indictments found and returned in the Superior Court
Department on November 8, 2012.
A pretrial motion to suppress evidence was heard by Timothy
Q. Feeley, J, and the cases were heard by Howard J. Whitehead,
J.
Patrick Levin for the defendant.
Philip Anthony Mallard, Assistant District Attorney, for
the Commonwealth.
WOLOHOJIAN, J. At issue is whether there was reasonable
suspicion to stop and frisk the defendant, who did not match the
particularized aspects of the descriptions provided by
eyewitnesses who called 911 to report that there had been a
2
shoot-out on a residential street. The defendant was, however,
among the trees in a closed public park well after dark, close
to the scene of the crime within minutes of its occurrence,
wearing a "hoodie" pulled tightly around his face. In the
circumstances presented, as described more fully below, we
conclude that the seizure was reasonable and therefore there was
no error in the denial of the defendant's motion to suppress.1
Background. We recite the facts as found by the motion
judge.
"On October 19, 2012, the [Lynn police department
(LPD)] received eight 911 calls within a four minute span
of time, starting at 10:09 pm. Each of the calls related
to a 'shots fired' incident on Harwood Street. Several
reported hearing the shots fired, but reported no
observations of the actual shooting. Those calls could not
pinpoint the exact location of the shooting. As many as
twelve discharges were reported, involving at least two
different weapons. A caller from Harwood Street reported
seeing people shooting on that street. He reported the
people to include black and/or Spanish, with a shooter
observed to run toward Common Street. A caller from 82
Harwood Street reported guys in her backyard shooting guns,
but it appeared that her neighbor had actually made the
observations. Another caller reported observing shots
fired at 66 Harwood Street. He observed the shooter as
being a black male, wearing a black jacket and red bandana,
shooting at another black male, and then running toward
Western Avenue.
"The first LPD dispatch occurred at 10:09 pm,
reporting two reports of shots fired in the Whiting/Harwood
1
After a bench trial, the defendant was convicted of
carrying a firearm without a license, as a second offense, and
carrying a loaded firearm. He was sentenced to five to six
years in prison, followed by three years' probation. The only
issue raised in this direct appeal is the denial of his motion
to suppress.
3
Streets area. At 10:10 pm, dispatch reported a black male,
wearing a black jacket, and red bandana, heading toward
Western Avenue from Harwood. At 10:12 pm, Officer James
McIntyre ('McIntyre') in Car 8 reported himself to be
driving along the Commons. Shortly thereafter, and before
10:14 pm, McIntyre reported he had a party with a gun, and
gave his location as the Commons near 170 South Commons.
"McIntyre is a twenty-eight year veteran of the LPD.
At 10:09 pm on October 19, 2012, he was on the Lynnway near
the entrance to the GE plant. He heard the first dispatch
about shots fired in the area of Whiting/Harwood Streets,
and immediately responded in that direction in his marked
cruiser, Car 8. He used his lights and siren to travel the
couple of minutes it took to drive from the Lynnway to the
Commons. He deactivated his lights and siren as he arrived
at the Commons and turned right onto South Commons. He
reported his location at the Commons to dispatch at 10:12,
less than three full minutes from the first dispatch of
shots fired.
"The Commons is a long narrow park area, somewhat in
the shape of a fish. It extends eight to ten blocks in
length, and is bordered by North and South Common Streets.
. . . Harwood Street is one of many streets that runs
perpendicular to and ends at North Common[] Street. . . .
Although the center of the Commons is largely free of trees
and shrubs, each end has numerous trees throughout the park
area. There is no artificial lighting within the Commons,
and it can be very dark, particularly in the areas of the
trees.
"McIntyre observed two females and a male, later
identified as Gabriel Smith ('Smith'), inside the Commons.
They were opposite 170 South Common[] Street. McIntyre
exited his police cruiser and approached the three
individuals. He directed Smith to place his hands on the
top of his head, to which Smith responded with yelling and
screaming. Smith was later determined to be intoxicated
and was arrested for disorderly conduct. Although Smith
looked to be either a black or Spanish man, McIntyre did
not approach further or attempt to pat frisk him. As
McIntyre looked to his left, he saw the silhouette of a
person walking away from him near the tree area of the
Commons, within twenty-five feet of where he was standing.
McIntyre used his flashlight to illuminate the individual,
and saw him to be a black male, with a gray hoodie pulled
4
tightly around his face. McIntyre saw the man's hands at
his sides, and ordered him to place his hands on the top of
his head. The man did not comply until McIntyre repeated
his order, and then unsnapped his holstered weapon. After
his hands were raised, McIntyre approached the man, later
identified as [the defendant], and patted him down.
McIntyre felt an object he believed to be a handgun in [the
defendant's] left front pocket. McIntyre then controlled
[the defendant] by means of an arm bar and reported to
dispatch that he had a party with a gun on the Commons,
near 170 South Common[] Street. [The defendant] was not
wearing a black jacket or a red bandana. Dispatch received
McIntyre's report just seconds before 10:13 pm, almost
exactly three and one-half minutes after the first dispatch
about the shots fired incident."
On these facts, the judge denied the defendant's motion to
suppress, and held that
"reasonable suspicion existed to conclude that [the
defendant] was involved in the shots fired incident on
Harwood Street and was armed and dangerous. The court
finds the following specific facts persuasive on the issue.
Only a very short time (less than three and one-half
minutes) had passed from the multiple reports of shots
fired on Harwood Street to McIntyre's observations of [the
defendant]. [The defendant] was in a closed public park
well after dark. [The defendant's] presence among the
trees was suggestive of trying to stay hidden from police
observation, particularly with police lights and sirens in
the area. [The defendant's] hoodie was pulled tightly
around his face, also suggestive of a desire to hide or
disguise his facial features. The Commons is only a short
distance from Harwood Street, easily reached within the
time frame established by the record. [The defendant] is a
black male, consistent with the most detailed of the eye
witness descriptions. A witness said the shooter fled
toward Western Avenue, and [the defendant's] location at
the far end of the Commons is consistent with leaving
Harwood Street and heading through the Commons to Western
Avenue."
The judge also stated in a footnote
"The fact that [the defendant] was not wearing a black
jacket and red bandana does not negate or prevent
5
articulable suspicion from being present. Outer clothing,
such as a jacket and bandana, are easily discarded, and
probably not uncommon when a person is fleeing a shots
fired incident."
Discussion. The defendant argues first that two of the
judge's findings are clearly erroneous. The Commonwealth
concedes the point with respect to the finding that the
defendant's location in the Commons was "consistent with leaving
Harwood Street and heading through the Commons to Western
Avenue." Indeed, the evidence (which included a map of the
area) admitted during the suppression hearing showed that
Western Avenue is located on one end of Harwood Street and the
Commons is located on the other.2
The Commonwealth does not concede that the judge's finding
that a caller from Harwood Street reported that the shooters
were "people to include black and/or Spanish" was clearly
erroneous. However, the Commonwealth acknowledges that, because
this finding is based entirely on the contents of a recording of
2
The defendant moved for reconsideration based on the
erroneous finding. That motion was denied, and the judge's
margin endorsement states that
"the direction of travel is only one of several factors
relied on by the court -- and from the lower end of Harwood
St., the far end of the Commons is consistent with heading
toward Western Ave. -- the court did not say or find it was
the most direct path or only path to Western Avenue."
In fact, there was no evidence that the defendant was at the
"far end of the Commons." Instead, Officer McIntyre placed the
defendant opposite 170 South Common Street, and he indicated the
location on the map that was admitted in evidence.
6
a 911 call, our review is independent and de novo. Commonwealth
v. Thomas, 469 Mass. 531, 539 (2014). We have listened to the
recordings of the 911 calls, as well as the dispatch recordings.
In fact, no single caller reported that the shooters were "black
and/or Spanish." The caller on Harwood Street to which the
judge's finding apparently relates reported that there were
multiple shooters and that they were Spanish and running towards
the Commons. That caller did not report seeing anyone black.
However, another caller did report seeing a black man "shooting
at another black gentleman."
Excluding those two erroneous findings from our
consideration, but adopting the remaining findings, we turn to
"independently determin[ing] whether the judge correctly applied
constitutional principles to the facts as found." Commonwealth
v. Isaiah I., 450 Mass. 818, 821 (2008).
"Pursuant to the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights, a 'seizure' occurs when, 'in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.' United
States v. Mendenhall, 446 U.S. 544, 554 (1980). See
Commonwealth v. Stoute, 422 Mass. 782, 785–789 (1996) (adopting
Mendenhall standard for purposes of art. 14). If a suspect was
seized in the constitutional sense, we ask whether the stop was
7
based on an officer's reasonable suspicion that the person was
committing, had committed, or was about to commit a crime.
Commonwealth v. Wilson, 441 Mass. 390, 394 (2004), citing
Commonwealth v. Silva, 366 Mass. 402, 405 (1974)." Commonwealth
v. Martin, 467 Mass. 291, 302-303 (2014). Here, that question
is whether, at the moment when he ordered the defendant to put
his hands on his head, Officer McIntyre had a reasonable
suspicion that the defendant had been involved in the shootings
on Harwood Street.3,4 That suspicion had to be based on
objective, specific, and articulable facts. See Commonwealth v.
Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v.
Grandison, 433 Mass. 135, 139 (2001) ("Reasonable suspicion may
not be based on good faith or a hunch, but on specific,
3
Neither party challenges the judge's conclusion that the
defendant was seized in a constitutional sense when Officer
McIntyre ordered him to place his hands on his head. Nor does
the defendant challenge the reasonableness of the patfrisk. His
challenge is limited to the reasonableness of the stop. See
Commonwealth v. Narcisse, 457 Mass. 1, 6-7 (2010) (stop and
frisk must be independently analyzed, even if facts relevant to
each occur almost simultaneously).
4
The Commonwealth also argues (as it did in the trial
court) that Office McIntyre had a reasonable suspicion that the
defendant was committing a criminal trespass in the park, which
was closed after dark. The motion judge did not consider this
alternate ground, nor did he make any of the findings that would
be necessary (such as whether notice of the park's closure and
its consequences was posted and, if so, where). We, therefore,
do not consider this alternate theory, nor is it necessary to
our decision.
8
articulable facts and inferences that follow from the officer's
experience. . . . The test is an objective one").
Where, as here, "police officers on the street stop a
defendant in reliance on a police dispatch alone, the stop is
lawful only if the Commonwealth establishes both that the
information on which the dispatch was based had sufficient
indicia of reliability, and that the description of the suspect
conveyed by the dispatch had sufficient particularity that it
was reasonable for the police to suspect a person matching that
description." Commonwealth v. Depina, 456 Mass. 238, 243
(2010). See Commonwealth v. Mubdi, 456 Mass. 385, 395 (2010).
The defendant does not challenge the veracity or reliability of
the 911 callers. And, indeed, having listened to the tape
recordings of the 911 calls, we conclude there would have been
no basis for him to have done so with respect to the two callers
who provided descriptions of the shooters, even though both
callers were anonymous. Both callers were eyewitnesses,
contemporaneously reporting their firsthand observations of an
ongoing crime, and the details and circumstances of their
reports provided sufficient indicia of the callers' reliability.
See generally Commonwealth v. Depina, supra at 243-244.
But the particularity of the callers' descriptions is a
separate question. "To make an investigatory stop based solely
on a physical description, the description need not be so
9
particularized as to fit only a single person, but it cannot be
so general that it would include a large number of people in the
area where the stop occurs." Id. at 245-246. Here, one caller
described the shooters as "Spanish," with nothing more. Another
caller described the shooter as "black," also with no further
detail. Neither of these descriptions was sufficiently
particularized to support reasonable suspicion. See
Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (description of
suspect as "black male with a black 3/4 length goose" jacket not
sufficiently particularized to support reasonable suspicion).
Another caller described the shooter as a black man wearing a
black jacket and a red bandana who went in the direction of
Western Avenue. Regardless of whether this is a sufficiently
particularized description, it could not support reasonable
suspicion in this case because the defendant did not match it
except with respect to his race. He wore neither a black jacket
nor a red bandana, and he was stopped in a location opposite the
direction of Western Avenue. As the officer himself candidly
admitted when questioned by the judge at the suppression
hearing, nothing connected the defendant to the shooting other
than being a black or Hispanic male.5
5
The court: "What, if anything, did you observe, Officer,
that connected the man by the trees to the shooting
reported by dispatch?"
10
That said, in the immediate aftermath of a shooting, even
where there is no particularized description of the suspect, the
police may nonetheless stop someone when circumstances make the
seizure reasonable under the Fourth Amendment and art. 14. See
Commonwealth v. Depina, 456 Mass. at 247 ("The gravity of the
crime and the present danger of the circumstances may be
considered in the reasonable suspicion calculus"). See also
Commonwealth v. Grant, 57 Mass. App. Ct. 334, 339 (2003). Such
circumstances exist here. The police had several reliable
reports of a gunfight at night on a residential street,
involving multiple people fleeing on foot in separate
directions. At least one person was wounded. The immediacy of
the gunfight, its occurrence in a residential neighborhood, and
the participation by multiple shooters who dispersed in
different directions made this a public safety emergency. One
group involved in the shootings was reported to have fled in the
direction of the Commons, a public park that, at that time of
night, was closed. The defendant was observed in the Commons
three and one-half minutes after the shootings, not far from
Harwood Street. The defendant's position and clothes suggested
a desire to conceal himself: he was standing among the trees in
the unlit interior of the park, wearing a hoodie "tightly"
The witness: "Other than being a black or Hispanic
male, nothing really. Just stood out. No bandana or
nothing like that."
11
pulled around his face. In these circumstances, Officer
McIntyre had a reasonable suspicion to justify an investigatory
stop of the defendant. "Physical proximity, closeness in time,
the defendant's [efforts to conceal himself], and the danger to
public safety supplemented the less than distinctive physical
description relayed in the police dispatch. Taking these
elements together, we conclude that, at the time of the Terry
stop [see Terry v. Ohio, 392 U.S. 1 (1968)], [Officer McIntyre]
had a reasonable suspicion that the defendant had been involved
in the shooting." Commonwealth v. Depina, 456 Mass. at 247.
See Commonwealth v. Stoute, 422 Mass. at 791, quoting from
United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994) ("test for
determining reasonable suspicion should include consideration of
the possibility of the possession of a gun, and the government's
need for prompt investigation"). Accordingly, the judge did not
err in denying the defendant's motion to suppress.
Judgments affirmed.