Commonwealth v. Cullen

Brown, J.

(concurring in result). Although this appeal suggests a myriad of intriguing questions of constitutional dimension — (1) was the stop based on reasonable suspicion; (2) (a) was the frisk warranted, (b) did it exceed permissible *404limits; and (3) was there probable cause to arrest? — upon review of the entire scenario, I do not think there is a need to stitch all the events into a linear sequence. From all that appears, the police had probable cause to arrest the defendant at the time of the show-up in the victim’s hospital room. Concluding as I do, I pretermit the questions whether the patfrisk exceeded the limits of Terry v. Ohio, 392 U.S. 1 (1968), and whether there was probable cause to arrest the defendant at the time of the initial stop.1

I am merely obliged to examine whether the stop, detention, and transport to the show-up were legally justified. I think they were. The stop was permissible under the authority of Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974), and Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 196-199 (2003). See Commonwealth v. Johnson, 6 Mass. App. Ct. 944, 945-946 (1978).

The show-up identification was not fatally flawed. See Commonwealth v. Barros, 425 Mass. 572, 585 (1997). On my reading of the motion hearing transcript, contrary to the defendant’s assertion, I do not believe Officer Royster’s actions prior to the show-up necessarily amounted to an arrest. See Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 826-827 (1999). Despite the use of handcuffs to restrain the defendant, see Commonwealth v. Varnum, 39 Mass. App. Ct. 571, 575 (1995) (use of handcuffs does not automatically convert Terry stop into arrest), I conclude that Officer Royster was still acting within the limits of a Terry stop. Thus, I need not reach the defendant’s argument that probable cause to arrest did not arise during the stop of the defendant’s car. I conclude that reasonable suspicion sufficient to justify the challenged police conduct was present at the time Elliott stopped the defendant’s car.2

The view I take would make it unnecessary for the court to consider whether Minnesota v. Dickerson, 508 U.S. 366 (1993), is implicated in the instant circumstances. See Commonwealth v. Wilson, 441 Mass. 390, 396-398 (2004).

Whether the coins could properly have been seized at the time of the stop by the officers is not a matter of consequence, and there is no need to factor that into the calculus of the conviction. The requisite reasonable suspicion for the police actions leading to the show-up was present before the seizure, and the nature of the coins was a matter of inevitable discovery. See Commonwealth v. O’Connor, 406 Mass. 112, 115-119 (1989).