Commonwealth v. Harris (Lawyers Weekly No. 11-031-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 17-P-123 Appeals Court COMMONWEALTH vs. JESSE HARRIS. No. 17-P-123. Suffolk. December 18, 2017. – March 19, 2018. Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Firearms. Evidence, Firearm, Knife, Flight. Practice, Criminal, Stipulation, Motion to suppress. Indictments found and returned in the Superior Court Department on November 13, 2015. A pretrial motion to suppress evidence was heard by Robert N. Tochka, J., and the cases were heard by Robert B. Gordon, J., on a statement of agreed facts. Rosemary Daly for the defendant. Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth. ENGLANDER, J. This case raises an issue as to the reasonableness of police conduct when the police engaged with, and ultimately stopped and seized, persons walking in a public area. The defendant appeals from his convictions of illegal possession of a firearm and carrying a loaded firearm without a license, claiming that (1) the firearm was seized in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and (2) the trial judge failed to conduct the necessary waiver colloquy before convicting the defendant based upon stipulated facts. Because, as the Commonwealth acknowledges, the required colloquy did not occur, the judgments must be vacated and the findings set aside. That leaves the search and seizure issue, which has been fully briefed and argued and which bears on any future proceedings. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289 (2009). The seizure of the gun resulted from what began as a “casual” encounter between the defendant, his two companions, and the Northeastern University (university) police, outdoors on a September afternoon in the middle of the university’s campus. The defendant contends that he and his companions were stopped or seized, for constitutional purposes, without the required reasonable suspicion, and that the gun accordingly must be suppressed. A Superior Court judge denied the defendant’s pretrial motion to suppress the gun, concluding that the initial conversations with police were consensual and that no stop occurred until after the police officers had observed a knife on the defendant’s person, at […]