Commonwealth v. Willis

¶1(dissenting). In Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980), this court stated a fundamental principle of appellate review of rulings by a trial judge on a motion to suppress. That standard is: “The evidence before the judge at the hearing on the motions to suppress consisted entirely of oral testimony. The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. In such a situation, where subsidiary findings of fact have been made by the trial judge, they will be accepted by this court, and we do not substitute our judgment for his, absent clear error.” Further, we have stated in Commonwealth v. Bottari, 395 Mass. 777 (1985): “We begin our review with the well-settled proposition that the judge’s find*822ings of fact are ‘binding in the absence of clear error . . . and [we] view with particular respect the conclusions of law which are based on them.’ Commonwealth v. Correia, 381 Mass. 65, 76 (1980). While the judge’s ultimate findings of fact and rulings of law, as they bear on issues of constitutional dimension, are open for reexamination by this court, such ultimate findings are ‘entitled to substantial deference by this court.’ Commonwealth v. Bookman, 386 Mass. 657, 661 n.6 (1982). Questions of credibility are, of course, for the trial judge to resolve. Commonwealth v. Meehan, 377 Mass. 552, 557 (1979).” Bottari, supra at 780.

¶2Nowhere in its opinion does the court make reference to these well-settled principles of appellate review. The motion judge in this case took the time, as he should, to make extensive written findings of fact which the Commonwealth does not contend to be unwarranted by the extensive oral evidence. Additionally, the motion judge wrote at length on the relevant legal principles and reached, in my view, appropriate conclusions of law in ordering the evidence suppressed. Thus, I am troubled by the court’s disregard for the findings of the judge and its willingness to “supplement” critical findings with contrary conclusions. The court concludes that the encounter at issue was an investigatory stop and not an arrest. I must dissent because I believe the judge correctly ruled that the encounter was an arrest without probable cause. I perceive no reasoned basis for ignoring the motion judge’s findings and conclusions in this regard. See Bottari, supra at 780.

¶3For four hours, the Boston police did nothing to verify the teletype implicating Willis beyond placing one fruitless phone call to Michigan. Another call or two might well have yielded information sufficient to support a search warrant, for which there was plenty of time to apply. When Willis’s bus arrived, he walked calmly and at a normal pace away from the bus terminal. Surrounded in an alleyway by four police officers with their guns drawn, and ordered to stop, Willis complied. Willis raised his arms overhead; an officer forcibly raised them higher. The force used to restrain and *823search Willis was similar to the force used by the officers in Bottari, supra,where we held that the encounter constituted an arrest. In one significant respect, the force used here was greater: unlike Bottari, where two officers confronted four people, the officers here outnumbered the defendant four to one. See Commonwealth v. Sanderson, 398 Mass. 761, 766-767 (1986).1

¶4The court bases its conclusion that this encounter was an investigatory stop and not an arrest, and thus distinguishable from Bottari, on the fact that the officers in this case feared for their safety. See ante at 820. The court bases this conclusion on the testimony of one of the officers that he had his gun drawn because “[w]e had expected the suspect to have a loaded firearm on him.” Thus, the court feels “entitled to conclude . . . that the officers drew their weapons because they were concerned for their safety . . . [and] that their concern was reasonable.” Ante at 817.2 Even if the court’s view is correct, we have held that “the fact that the officers suspected that one of the occupants may have had an illegal gun does not justify their use of force, without the presence of other fear-provoking circumstances . . . .” Bottari, supra at 782. Bottarithus states a clear principle: fear-provoking circumstances other than suspecting that the defendant might *824possess a firearm are necessary to justify a search of the type executed on Bottari and on Willis.3

¶5What were the fear-provoking circumstances present here? Apart from the “concern for safety,” that the court extracts from the officers’ suspicion that Willis had a gun (which is insufficient under Bottari), there are none. By all accounts, and as the judge below found: “The officers’ use of force was not precipitated here by any suspicious action by the defendant. There was no evidence or testimony at the hearing on the motion to suppress indicating that the defendant’s actions [led] to the officers’ fear for their safety or for the safety of the public. Upon Mr. Willis’ arrival at the Greyhound bus station, he walked out of the bus and began to leave the station area: his stride was normal, his head was down and he was alone.” I see no reason to disturb the judge’s conclusion that no fear-provoking circumstances justified the intrusion on Willis’s liberty.

¶6The court’s fact-finding takes an even more dangerous turn when it considers Officer Reynolds’s acquaintance with Willis. Relying on Reynolds’s testimony, given at the suppression hearing and briefly mentioned in the judge’s decision, the court “supplements” the judge’s findings with the detail that Reynolds had arrested Willis twice on outstanding default warrants and once for armed robbery and assault and battery with a dangerous weapon, a knife. Ante at 816. As the court *825notes, the armed robbery charge had been dismissed well before the encounter at issue. The court nonetheless bolsters its conclusion that the intrusion was justified as a stop and not an arrest by stating that the officers “reasonably believed [Willis had] engaged in violent criminal conduct.” Such conjecture is utterly inappropriate, and sends a frightening message that once a person has been accused of any violent conduct, even when it is completely unproven, he shall forevermore be susceptible to intrusive police action. I note my vigorous disagreement with any such suggestion.

¶7I believe that the judge correctly concluded that encounter constituted an arrest. I agree with the court, the motion judge, and the Commonwealth that there was no probable cause to support an arrest. I would affirm the decision of the motion judge.