Commonwealth v. Jones

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18-P-1195 Appeals Court

COMMONWEALTH vs. MAURICE JONES.

No. 18-P-1195.

Suffolk. January 10, 2019. - July 22, 2019.

Present: Wolohojian, Neyman, & Singh, JJ.

Search and Seizure, Protective frisk, Reasonable suspicion,
Fruits of illegal search, Threshold police inquiry.
Threshold Police Inquiry. Constitutional Law, Search and
seizure, Reasonable suspicion, Admissions and confessions.
Practice, Criminal, Motion to suppress, Admissions and
confessions. Evidence, Admissions and confessions, Result
of illegal search.

Indictments found and returned in the Superior Court
Department on June 26, 2013.

Pretrial motions to suppress evidence were heard by Linda
E. Giles, J.

An application for leave to prosecute an interlocutory
appeal was allowed by David A. Lowy, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
him to the Appeals Court.

Ian MacLean, Assistant District Attorney (Julie S. Higgins,
Assistant District Attorney, also present) for the Commonwealth.
James L. Sultan (Catherine J. Hinton also present) for the
defendant.
 2

WOLOHOJIAN, J. This interlocutory appeal stems from

motions to suppress1 that the defendant filed in anticipation of

his third trial on indictments charging murder in the first

degree and other charges relating to the April 17, 2012 fatal

shooting of Dinoriss Alston and nonfatal shooting of Ashley

Platt.2 After conducting an extensive evidentiary hearing,3 a

Superior Court judge allowed4 the defendant's motions and

suppressed statements that the defendant and his mother had made

1 The defendant's initial motion sought to suppress his own
statements to police. After the evidentiary hearing on that
motion, the defendant filed a posthearing memorandum seeking to
suppress his mother's statements to police.

2 On June 26, 2013, the defendant was indicted on charges of
murder in the first degree, G. L. c. 265, § 1, armed assault
with intent to murder, G. L. c. 265, § 18 (b), assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A, and
unlawful possession of a firearm, G. L. c. 269, § 10 (a). The
case was first tried in 2014, ending in a mistrial after the
jury failed to reach a verdict. The case was retried in 2015,
and a jury convicted the defendant of all charges except for the
armed assault with intent to murder. In 2017, the Supreme
Judicial Court vacated the convictions because of irregularities
in the jury selection process, and remanded for a new trial.
See Commonwealth v. Jones, 477 Mass. 307 (2017). The motions
that underlie this appeal were filed after that remand and in
anticipation of the third trial.

3 The hearing took place over the course of five days and
testimony was received from eight witnesses.

4 In her initial order the judge suppressed only the
defendant's statements during the first encounter and the
mother's statements during the second encounter. However, after
the defendant moved for reconsideration, the judge amended the
order and suppressed the defendant's statements during the third
encounter as well. This appeal is from the motion judge's
amended memorandum and order.
 3

during three encounters with police on the day of the shooting.

The first encounter occurred when police stopped the defendant

nearly one-half hour after the shooting to ask him if he knew

anything about it. At the beginning of this encounter, the

police pat frisked the defendant without reasonable suspicion.

The defendant then made certain exculpatory statements, which we

conclude the motion judge properly suppressed as fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471,

487-488 (1963). The second encounter occurred minutes later at

the defendant's home, where police went to speak with his mother

to see if she would confirm what the defendant had just told

them. Unlike the motion judge, we conclude that the mother's

statements were sufficiently attenuated from the initial

illegality that they should not be suppressed as fruit of the

poisonous tree. The third encounter occurred later the same day

when police, having additional information tying the defendant

to the description of the shooter, located him to ask further

questions. These statements did not fall within the "cat-out-

of-the-bag" doctrine, see Commonwealth v. Mahnke, 368 Mass. 662,

686 (1975), cert. denied, 425 U.S. 959 (1976), as the motion

judge concluded, nor was suppression required under the other

theories raised by the defendant.
 4

Background.5 At around 4 P.M. on April 17, 2012, Dinorris

Alston and his girlfriend, Ashley Platt, were sitting in a car

parked near a park located between Dunreath and Copeland Streets

in the Roxbury section of Boston. Shots were fired into the

car, killing Alston and wounding Platt, who managed nonetheless

to drive to a nearby gas station for help. As she drove from

the scene of the shooting, Platt saw a man walking away.

When an officer arrived at the gas station, Platt told him

that the shooter was a black male wearing a white T-shirt and

khaki pants. That description was broadcast over police radio

at 4:08 P.M. Hearing that description and a report that shots

had been fired, Officer Brian Johnson decided to look for the

defendant in order to speak with him. He knew that the

defendant frequented the park and the area where the shooting

had occurred, and he had many times before conducted a field

interrogation and observation6 of the defendant in the area of

Dunreath and Copeland streets, including the week before. But

5 We summarize the motion judge's detailed findings,
supplementing them with additional uncontroverted facts from
testimony the motion judge implicitly credited. See
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008).

6 "A 'field interrogation [and] observation' has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009).
 5

Johnson had never seen the defendant with a gun and did not know

him to have any prior firearm convictions. Moreover, Johnson

had never had any problems with the defendant and had no

information connecting the defendant to the shooting. At the

time he went looking for the defendant, Johnson was in an

unmarked car, and he was wearing plainclothes and his badge.

Johnson located the defendant around 4:25 P.M. about one

mile away from Dunreath Street. The defendant, a young black

man, was walking by himself and wearing a white T-shirt with a

red and grey graphic design of a winged unicorn on the front

bearing the word "Temptation." He wore khaki cargo-style

shorts, a black baseball cap with a small red pony logo on the

front, and black sneakers.

Johnson pulled over, got out of his car, and asked the

defendant, "What's up?" in a conversational, nonconfrontational

manner. The defendant answered in a calm and natural tone with

"[h]ey," or a similar expression. At this point, Johnson patted

down the defendant's waist and pockets but found nothing.

Johnson then asked the defendant casually what he was doing and

where he was going. The defendant replied that he had been at

his house earlier and that he was going to meet his mother at

Walgreens to add minutes to his cell phone. Officer Michael

Fanning joined Johnson during this conversation, but neither

displayed his firearm or attempted to restrain or handcuff the
 6

defendant. The conversation lasted about five minutes in total,

and after a brief consultation with his superior officer by

telephone, Johnson ended the encounter.

The two officers then immediately went around the corner to

the defendant's home, intending to speak to his mother to see if

she would verify what the defendant had told them.7 The officers

did not tell her that they had just spoken to the defendant.

She denied that she was going to accompany the defendant to

Walgreens and said she had not spoken with her son since that

morning. She confirmed that the defendant frequented the area

where the shooting had taken place.

Meanwhile, Platt gave police a more detailed description of

the shooter, which was broadcast: a young black male with khaki

shorts, black "Chuck Taylor" sneakers,8 a white shirt with some

red in it, and a black and red baseball cap.9 Johnson and

7 The mother was not home when the officers arrived but
arrived shortly thereafter and spoke with the officers on the
porch of her home.

8 Although the defendant was wearing black sneakers at the
time he was observed by officers, they were not Chuck Taylor
sneakers.

9 In two subsequent interviews that day, Platt's description
varied slightly. In the first of these interviews, she did not
mention any red in the white shirt. In the second, she
described the hat as black with a red brim.
 7

Fanning were ordered to look for the defendant again given this

new description.

They found him at around 5:30 P.M., wearing the same

clothing as before and walking with another man around the

corner from his home. In response to the officers' request, the

defendant agreed to wait to speak with detectives, who arrived

shortly thereafter and engaged the defendant in a cordial

conversation conducted at a normal speaking volume. The

officers did not pat frisk the defendant (who seemed a little

nervous, jittery, and excitable), restrain him, display weapons,

or make any show of authority. During this conversation, the

defendant said that he had not been in the area of the shooting

but instead had been home for the day. He agreed to have his

photograph taken and to submit to a gunshot residue test, but he

declined to be transported to the hospital for Platt to view.

The defendant ultimately ended the encounter, which lasted

between eight and ten minutes.

Discussion. The Commonwealth argues that the motion judge

erred in allowing the defendant's motions to suppress, because

(1) reasonable suspicion justified the initial patfrisk of the

defendant,10 (2) even if the frisk was unlawful, the mother's

10Although the Commonwealth argued below that the patfrisk
did not constitute a seizure of the defendant for constitutional
purposes, it does not make this argument on appeal.
 8

later statements were not fruit of the poisonous tree, and (3)

the motion judge improperly applied the "cat-out-of-the-bag"

doctrine to the defendant's statements during the third

encounter. In reviewing the judge's ruling, we accept the

judge's subsidiary findings unless clearly erroneous, see

Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439

U.S. 280 (1978), but make an "independent determination on the

correctness of the judge's 'application of constitutional

principles to the facts as found,'" Commonwealth v. Haas, 373

Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), quoting

Brewer v. Williams, 430 U.S. 387, 403 (1977).

1. First encounter. "[P]olice 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."

Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). "That

suspicion must be grounded in 'specific, articulable facts and

reasonable inferences [drawn] therefrom' rather than on a

'hunch.'" Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),

quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

"[T]he 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. Meneus, 476 Mass. 231, 235
 9

(2017), quoting Commonwealth v. Warren, 475 Mass. 530, 534

(2016).

For the reasons that we set out below, we are not persuaded

by the Commonwealth's argument that the following factors

provided reasonable suspicion to pat frisk the defendant: (i)

the "match" between the defendant and the initial broadcast

description of the shooter, (ii) the defendant's geographic and

temporal proximity to the location of the shooting, (iii) the

fact that the defendant frequented the area where the shooting

occurred, and (iv) the nature of the offense being investigated.

We examine each of these factors in turn.

First, when the defendant was pat frisked, the description

of the shooter was nonspecific, consisting only of a black male

wearing a white T-shirt and khaki pants. A description of a

perpetrator sought by police "need not be so 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." Commonwealth v. Depina, 456 Mass. 238, 245-246

(2010). The description here did not meaningfully narrow the

range of possible suspects and, thus, did not substantially

contribute to the reasonable suspicion analysis. See Warren,

475 Mass. at 534-537 (no reasonable suspicion where defendant

and another individual "matched" description of two black males

wearing dark clothing); Commonwealth v. Cheek, 413 Mass. 492,
 10

496 (1992) (description of suspect as "black male with a black

3/4 length goose" jacket not sufficiently particularized to

support reasonable suspicion where defendant was one-half mile

from the scene of the reported stabbing).

Moreover, to the extent the defendant's "match" to the

general description had any value, it was largely offset by the

aspects of his appearance tending to exclude him from the

description: the defendant wore shorts, not pants, and wore a

shirt with a distinctive unicorn graphic that was not mentioned

in the initial description. See Meneus, 476 Mass. at 237

(distinctive clothing of defendant not mentioned in description

of perpetrator detracted from reasonable suspicion analysis).

"Unless the police were able to fortify the bare-bones

description of the perpetrator[] with other facts probative of

reasonable suspicion, the defendant was entitled to proceed

uninhibited" down the street. Warren, 475 Mass. at 536.

Second, the defendant was stopped about one mile away from

the scene of the crime, and about twenty-five minutes

afterwards, as was the precise case in Commonwealth v. Warren,

475 Mass. at 536. As in Warren, which also involved a crime in

the Roxbury section of Boston, we note that "given the nearly

thirty-minute time period between [the offense] and the stop

. . . , the suspect[] could have traveled on foot within a two
 11

mile radius of the crime scene." Id. at 536-537.11 Thus,

although temporal and geographic proximity to the crime can

contribute to the reasonableness of a stop, see Commonwealth v.

Doocey, 56 Mass. App. Ct. 550, 554-555 (2002), it was not

particularly meaningful here. Indeed, Officer Johnson went to

look for the defendant on Cobden Street because he knew it was

near the defendant's home, not because it was near the shooting.

The defendant's presence on a sidewalk right around the corner

from his home on a spring afternoon cannot be said to add much

to the reasonable suspicion calculus.

In addition, nothing about the defendant's appearance or

behavior at the time of the stop gave any reason to think that

he was connected to the crime, fleeing from it, or attempting to

conceal himself. Contrast Commonwealth v. Johnson, 88 Mass.

App. Ct. 705, 712 (2015) (defendant standing among trees in

unlit park that was closed "wearing a hoodie 'tightly' pulled

around his face"). He did not engage in any suspicious

behavior, and he "did not make any furtive gestures or reach

into his pockets in a manner that would suggest that he was

carrying a weapon." Commonwealth v. Villagran, 477 Mass. 711,

11 Although no map was included in the record on appeal, in
Warren, the court noted that depending on the direction taken
from the Roxbury crime scene, various "paths of flight would
lead to different Boston neighborhoods, Dorchester or Jamaica
Plain, in different areas of the city." Warren, 475 Mass. at
537.
 12

718 (2017). Instead, he was simply walking on a sidewalk near

his home.

Third, the fact that the defendant was known by police to

frequent the area where the crime took place is of only moderate

value where the area in question is a public park about one mile

from his home. Although the officers knew that the defendant

visited the park frequently, they had nothing connecting him to

the crime or to firearms more generally, and "[he] was not known

to the officers as someone having previously been arrested for

criminal activity." Commonwealth v. Martin, 457 Mass. 14, 21

(2010).

Finally, although we acknowledge that "[t]he gravity of the

crime and the present danger of the circumstances may be

considered in the reasonable suspicion calculus," Depina, 456

Mass. at 247, and that where, as here, shots have been recently

fired, or there is otherwise an imminent threat presented by a

gun, "there is an edge added to the calculus upon which that

reasonable suspicion may be determined," Doocey, 56 Mass. App.

Ct. at 557, the gravity of the crime is not dispositive, see

Meneus, 476 Mass. at 239, and cannot compensate for the absence

of information connecting the defendant to it.12

12The Commonwealth argues that the motion judge erred in
finding that shell casings discovered near the crime scene did
not demonstrate that the weapon used in the shooting "likely
contained additional unused ammunition." We need not resolve
 13

Thus, the motion judge correctly determined that the

patfrisk was not supported by reasonable suspicion that the

defendant had committed, was committing, or was about to commit

a crime and was armed and dangerous. The motion judge

accordingly suppressed as fruit of the poisonous tree the

defendant's statements made immediately after the patfrisk

during his initial encounter with the police. See Wong Sun, 371

U.S. at 487-488. The Commonwealth did not argue below, and does

not now argue on appeal, that the defendant's statements during

this first encounter were "sufficiently attenuated from the

underlying illegality [of the patfrisk] so as to be purged from

its taint."13 Commonwealth v. Damiano, 444 Mass. 444, 454

(2005). Instead, the Commonwealth argues that the motion judge

erred in concluding that the mother's statements were also fruit

of the poisonous tree. We turn to that question next.

2. Second encounter. "Evidence obtained by exploiting

unlawful police conduct must be suppressed." Commonwealth v.

Nickerson, 79 Mass. App. Ct. 642, 649 (2011). Nevertheless,

"[e]vidence obtained subsequent to unlawful police conduct does

the issue because, even assuming without deciding that the
Commonwealth is correct, our analysis would be unchanged.

13Accordingly, we do not consider the issue. See
Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006)
(arguments not raised below urging reversal of trial court's
ruling are generally not considered on appeal).
 14

not automatically become sacred and inaccessible." Commonwealth

v. Fredette, 396 Mass. 455, 459 (1985). Instead, in each case,

we examine "whether, granting establishment of the primary

illegality, the evidence to which instant objection is made has

been come at by exploitation of that illegality or instead by

means sufficiently distinguishable to be purged of the primary

taint." Wong Sun, 371 U.S. at 488. "To determine whether the

connection between the evidence and the improper conduct has

become so attenuated as to dissipate the taint, the facts of

each case must be examined in light of three factors: the

temporal proximity of the [unlawful conduct] to the obtaining of

the evidence; the presence of intervening circumstances; and the

purpose and flagrancy of the misconduct" (citation and quotation

omitted). Commonwealth v. Lunden, 87 Mass. App. Ct. 823, 826-

827 (2015). See Commonwealth v. Fredericq, 482 Mass. 70, 81-82

(2019); Commonwealth v. Johnson, 58 Mass. App. Ct. 12, 14

(2003). We examine the first two factors "in conjunction with

each other." Damiano, 444 Mass. at 455. As to the third

factor, "we ask, first, whether the police performed the illegal

act for the purpose of obtaining the evidence that the defendant

seeks to suppress, and second, whether the police knew that

their actions were illegal but proceeded anyway (flagrancy)."

Commonwealth v. Long, 476 Mass. 526, 537-538 (2017). With these
 15

general principles in hand, we turn to the specifics of the

mother's encounter with the police.

Although the record does not reflect the precise amount of

time that elapsed between the patfrisk and the officers'

conversation with the mother, it appears to have been quite

brief. The officers went directly to the defendant's nearby

home after their conversation with him, and his mother arrived

at the home shortly after the officers. This temporal proximity

certainly ties the second encounter to the first, but it alone

is not dispositive. See, e.g., Johnson, 58 Mass. App. Ct. at 14

(identification "followed closely" upon illegal stop, but taint

extinguished by intervening circumstances); Commonwealth v.

Manning, 44 Mass. App. Ct. 695, 698-700 (1998) (taint of illegal

arrest dissipated despite short time between arrest and taking

of booking photograph, with no intervening circumstances).

Although the second encounter followed on the temporal and

geographic heels of the first one, other factors separated them.

The officers ended their interaction with the defendant before

beginning the encounter with the mother. The mother was not

involved in the first encounter. And the officers did not tell

the mother anything they learned from the first encounter, or

even say that it had occurred. Contrast Fredericq, 482 Mass. at

82 (officer used unlawfully obtained information to obtain

defendant's consent to search). These intervening circumstances
 16

contribute to attenuate any connection between the second

encounter and the illegal patfrisk. See Commonwealth v.

Pearson, 90 Mass. App. Ct. 289, 294 (2016) (temporal attenuation

found where following defendant's arrest and transport to police

headquarters officers conversed with house owner while securing

premises). See also Commonwealth v. Gallant, 381 Mass. 465,

470-471 (1980) (dissipation of taint more likely where

statements at issue are those of third-party witness whose

constitutional rights were not violated).

As to the third factor, the defendant has made no showing

that the purpose of the illegal patfrisk was to obtain the

statements later made by the mother, and in fact, logic and the

record would undermine such an argument. The defendant is on

stronger ground with respect to "flagrancy" in the sense that

every officer can be presumed to know that reasonable suspicion

is required to conduct a patfrisk. However, as the motion judge

reasoned, "the officer's hunch about the defendant being armed,

although legally insufficient, was not unfounded," because "in

the immediate aftermath of a deadly shooting, the defendant was

encountered only about a mile from the scene of the shooting, a

park he frequented, and [partially] matched the minimal

description of the shooter." Thus, although there is no "'good

faith' exception to either the exclusionary rule or the

attenuation doctrine," Fredericq, 482 Mass. at 84, we do not see
 17

any error in the judge's conclusion that the patfrisk, although

not supported by reasonable suspicion, was not flagrant

misconduct in the aftermath of a fatal shooting. "In sum, the

third factor of the analysis . . . , which is especially

significant because it is tied to the purpose underlying the

exclusionary rule, does not favor suppression of the evidence."

Commonwealth v. Suters, 90 Mass. App. Ct. 449, 460 (2016).

Although "the exclusionary rule should be invoked with much

greater reluctance where the claim [as here] is based on a

causal relationship between a constitutional violation and the

discovery of a live witness than when a similar claim is

advanced to support suppression of an inanimate object,"

Commonwealth v. Caso, 377 Mass. 236, 244 (1979), quoting United

States v. Ceccolini, 435 U.S. 268, 280 (1978), the defendant

contends that his mother was "coerced into [providing a

statement] by police exploitation of illegal acts." Caso, supra

at 242. In general, "a truly voluntary decision by a witness to

testify should not be overridden unless the extreme

circumstances of a particular case require the suppression of

the testimony as a deterrent to further resort to the unlawful

conduct which resulted in the discovery of the witness." Id. at

241.

Here, although the officers concealed from the mother that

they had already spoken to the defendant, they were otherwise
 18

candid and truthful about the incident they were investigating

and its location. The conversation with the mother took place

just outside her home during the afternoon and did not involve

any show of police authority, threats, confrontations, or

promises. Nor did the police imply or suggest that the mother

had any criminal liability or fault. In short, the record is

essentially devoid of evidence suggesting that the mother's

statements were not voluntary.

For these reasons, the mother's statements to officers were

sufficiently distinguishable from the defendant's unlawful pat

frisk "to be purged of the primary taint." Wong Sun, 371 U.S.

at 488.

3. Third encounter. The motion judge suppressed the

defendant's statements made during the third encounter under the

"cat-out-of-the-bag" theory. That doctrine suppresses

statements made after a Miranda violation, see Miranda v.

Arizona, 384 U.S. 436 (1966), because a defendant may believe

that, "after a prior coerced statement, his effort to withhold

further information would be futile and he [has] nothing to lose

by repetition or amplification of the earlier statement[]."

Mahnke, 368 Mass. at 686. We assume for our purposes here --

but expressly do not conclude -- that the defendant's statement

made during the first encounter was obtained in violation of his
 19

Miranda rights; nonetheless, the "cat-out-of-the-bag" doctrine

does not apply.

The "cat-out-of-the-bag" doctrine does not apply where

either "(1) after the illegally obtained statement, there was a

break in the stream of events that sufficiently insulated the

post-Miranda statement from the tainted one; or (2) the

illegally obtained statement did not incriminate the defendant,

or, as it is more colloquially put, the cat was not out of the

bag." Commonwealth v. Thomas, 469 Mass. 531, 551 (2014),

quoting Commonwealth v. Prater, 420 Mass. 569, 580 (1995). The

"focus and ultimate goal" of this analysis is "a determination

of the voluntariness of the later confession." Thomas, supra,

quoting Prater, supra at 581.

Here, there was a substantial break in the stream of events

between the defendant's encounters with officers: one hour

during which the defendant was not in custody and had no contact

with police. More importantly, the defendant's initial

statement was not inculpatory. The statement "did not place him

at the scene of the crime . . . [and] the fact that the police

had no evidence contradicting the initial statement when it was

made negates the possibility that it was inculpatory because it

evidenced consciousness of guilt." Commonwealth v. Sarourt Nom,

426 Mass. 152, 156 (1997). Contrast Commonwealth v. Smith, 412

Mass. 823, 835-836 (1992) (suppression of second statement
 20

required where police knew defendant's initial statement to be

false when made during interrogation). Accordingly, the motion

judge erred in excluding the defendant's statements during the

third encounter based on the "cat-out-of-the-bag" theory.

Alternatively, the defendant argues that the motion judge's

conclusion may be supported on two other grounds. See

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate

court may "affirm a ruling on grounds different from those

relied on by the motion judge if the correct or preferred basis

for affirmance is supported by the record and the findings").

First, he contends that the third encounter constituted an

unlawful seizure without reasonable suspicion. But the record

shows that the officers informed the defendant that detectives

wanted to speak with him, and he agreed to wait for them. A

"'request to speak with the defendant and ask questions' . . .

does not rise to the level of a seizure." Commonwealth v.

Martin, 467 Mass. 291, 303 (2014), quoting Commonwealth v.

Nestor N., 67 Mass. App. Ct. 225, 228-229 (2006). See

Commonwealth v. Lopez, 451 Mass. 608, 610, 614 (2008) (officer's

request, "Can I speak with you?" not seizure); Commonwealth v.

Barros, 435 Mass. 171, 172, 174 (2001) (officer's statement,

"Hey you . . . I want to speak with you," not seizure);

Commonwealth v. Rock, 429 Mass. 609, 611-612 (1999) (officer's

request, "Guys, can I talk to you for a second?" not seizure).
 21

There is no evidence that the tone of any officer involved "was

aggressive, that [any] officer physically blocked the defendant

from leaving, or that the officers issued any orders or commands

to the defendant." Lopez, supra at 612. The defendant was not

pat frisked or otherwise searched during the conversation, and

he ended the encounter of his own volition, after refusing the

officers' request to take him to the hospital for potential

identification.

Second, the defendant argues that his statements during the

third encounter were the fruit of the initial unlawful patfrisk.

We are not persuaded. After the patfrisk, the defendant was at

liberty for one hour, during which time officers obtained new

reasons to wish to speak with him: Platt's more detailed

description of the shooter, the mother's statements

contradicting the defendant, and the resulting inference that

the defendant's false exculpatory statement during the first

encounter reflected consciousness of guilt. These intervening

circumstances sufficiently attenuated the third encounter from

the first to dissipate any taint.

Conclusion. For these reasons, we reverse so much of the

amended order as allows suppression of the mother's statements

and the defendant's statements made during his second encounter

with the police. In all other respects, the amended order is

affirmed.
 22

So ordered.