Terry stop in Massachusetts

2015Taking 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 .

2012A weapons frisk is permissible in a Terry stop if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968).

2012An investigatory stop, i.e., a brief detention and inquiry, is justified under art. 14 of the Massachusetts Declaration of Rights if the police have “ ‘reasonable suspicion’ to conduct the stop.” Commonwealth v. Cheek, 413 Mass. 492, 494 (1992), citing Commonwealth v. Lyons, 409 Mass. 16, 18 (1990).

2005In evaluating the propriety of a Terry stop, inquiry must be made whether the initiation of the stop was proper in the circumstances and whether the scope was justified by the circumstances. ‘To meet the ‘reasonable suspicion’ standard,” to which Massachusetts adheres, “police action must be ‘based on specific, articulable facts and reasonable inferences therefrom’ rather than on a ‘hunch.’ ” Commonwealth v. Lyons, 409 Mass. 16,19 (1990).

2010See Commonwealth v. Torres, 433 Mass. at 675 n.6, citing Commonwealth v. Silva, 366 Mass. at 408 . 10 That does not mean, however, that an officer engaged in a Terry stop and frisk must evaluate the least available alternative before acting.

2001“In evaluating the propriety of a Terry stop, we inquire whether the initiation of the stop was proper in the circumstances and whether the scope was justified by the circumstances.” Commonwealth v. Watson, 430 Mass. 725, 729 (2000), citing Commonwealth v. Silva, 366 Mass. 402, 405 (1974).

2010We are mindful that a report of an armed man warrants serious police attention, see Commonwealth v. Fraser, 410 Mass. 541 , 544 n.4 (1991), and that hindsight consideration of the reasonableness of actions of police officers in the field must extend deference to the danger such encounters pose, since “the answer might be a bullet.” Commonwealth v. Silva, supra at 407 , quoting from Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring).

2001Cf. Commonwealth v. Rock, 429 Mass. 609, 611 (1999) (police asking, “Can I talk to you for a second?” not seizure); Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (no Terry stop when officer asks defendant to “hold up a minute,” see Terry v. Ohio, 392 U.S. 1 [1968]); Commonwealth v. Fraser, 410 Mass. 541, 543 (1991).

2005Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (investigative stop of a vehicle by police is “analogous to a so-called ‘Terry stop’ ”).

2000See Berkemer v. McCarty, 468 U.S. at 439 (in Terry stop officer “may ask the detainee a moderate number of questions to determine his identity”).

2005If the police conduct an investigatory stop based on an informant’s tip, our evaluation of the tip’s indicia of reliability will be focused on the informant’s reliability and his or her basis of knowledge Id., citing Commonwealth v. Wren, 391 Mass. 705, 707 (1984).

1990Moreover, in some circumstances, the blocking of a suspect’s automobile with one or more cruisers so that the auto *143 mobile cannot move would not be, by itself, so intrusive as to change an otherwise lawful Terry stop into an arrest. 6 See Commonwealth v. Wren, 391 Mass. 705, 707 (1984); Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974).

2013Restraint, including handcuffs, do not automatically invalidate a Terry stop or convert it to an arrest, but there must be a legitimate and genuine reason for it, based on factors “including the length of the encounter, the nature of the inquiry, the possibility of flight, and the danger to the safety of the officers.” Commonwealth v. Williams, 422 Mass. 111, 118 (1996).

2013See Commonwealth v. Willis , 415 Mass, at 819-820; Commonwealth v. Williams, 422 Mass. 111, 117-119 (1996); Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) (“use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest”).

2025See Gordon, 47 Mass. App. Ct. at 828 (indicating that police may ask defendant, who is placed in custody during Terry stop, preliminary questions to determine identity without implicating Miranda).

2003Compare Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999), quoting from United States v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (“Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere”).

2012The defendant argues that, when the officers took out their badges and approached him, they did not have specific and articulable facts sufficient to conduct a Terry stop. 5 Thus, we begin our analysis by determining whether the interaction in question constitutes a stop (a seizure) for purposes of the Fourth Amendment and art. 14. “[N]ot every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions.” Commonwealth v. Stoute, 422 Mass. 782, 789 (1996).

2001Cf. Commonwealth v. Rock, 429 Mass. 609, 611 (1999) (police asking, “Can I talk to you for a second?” not seizure); Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) (no Terry stop when officer asks defendant to “hold up a minute,” see Terry v. Ohio, 392 U.S. 1 [1968]); Commonwealth v. Fraser, 410 Mass. 541, 543 (1991).

1997Commonwealth v. Moses, 408 Mass. 136 (1990) (police may make protective search of suspect in a Terry stop).

1993The motion judge found that under the circumstances the police acted reasonably in order to protect themselves and others and that the conduct of the police was reasonable and proportional to the degree of suspicion and, consequently, did not exceed the permissible limits of a Terry stop. 2 Compare Commonwealth v. Moses, 408 Mass. 136, 141 (1990).

2013The majority characterizes those measures as “reasonable and proportional to the escalating risk [which the trooper] faced at each passing moment in this rapidly unfolding encounter,” citing, inter alia, Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) (“use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest”).

2013See Commonwealth v. Willis , 415 Mass, at 819-820; Commonwealth v. Williams, 422 Mass. 111, 117-119 (1996); Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) (“use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest”).

2004Commonwealth v. Borges, 395 Mass. 788, 790-791 (1985) (where police had reasonable suspicion for Terry stop, but not probable cause for an arrest, ordering that the defendant remove his shoes to prevent flight was an illegal seizure).

2002Second, it took just one minute for the police to arrive and see (before the Terry stop) two men hurriedly exiting from the very building identified by the caller. “[T]he description here was not stale news, but right up to the hour, if not to the minute.” Commonwealth v. Borges, 395 Mass. 788, 798 (1985) (Hennessey, J., concurring).

2000Other examples of dangerous exigent circumstances justifying a stop are Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 930-931 (1990) (anonymous caller told police that man who appeared to be drunk was getting into a described automobile containing three small children); and Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 307 (1986) (defendant conceded that police had grounds for a Terry stop where anonymous call that driver of described car had “pointed a handgun, perhaps an automatic weapon, at a group of citizens”).

2000“The distinguishing feature of a Terry stop is that the intrusion is temporary, and in degree it is not excessive or incommensurate with the accomplishment of its purpose.” Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 306 (1986).

2018This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exist." We have applied this same standard of objective reasonableness when assessing, for instance, the validity of a Terry -type investigatory stop, Commonwealth v. Smigliano , 427 Mass. 490 , 493, 694 N.E.2d 341 (1998) ("Because the facts and circumstances known to the officer are sufficient to create a reasonable suspicion ... in a reasonable police officer, a Terry stop is justified regardless of the officer's subjective state of mi

2018This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exist." We have applied this same standard of objective reasonableness when assessing, for instance, the validity of a Terry -type investigatory stop, Commonwealth v. Smigliano , 427 Mass. 490 , 493, 694 N.E.2d 341 (1998) ("Because the facts and circumstances known to the officer are sufficient to create a reasonable suspicion ... in a reasonable police officer, a Terry stop is justified regardless of the officer's subjective state of mi

2005See also Commonwealth v. Ferguson, 410 Mass. 611, 615 (1991) (conviction reversed; evidence and statement should have been suppressed on other grounds than Terry stop); Commonwealth v. Helme, 399 Mass. 298, 299-300 (1987) (order allowing motion to suppress affirmed).

1991Although we conclude that the initiation of the investigation approached the “outer limits” of the Terry privilege, see Commonwealth v. Helme, 399 Mass. 298, 301 (1987), Lieutenant Merlini did not exceed those limits.

2003Compare Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999), quoting from United States v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (“Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere”).

1999“Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere.” United States v. Bautista, 684 F.2d at 1291 .

1990Moreover, in some circumstances, the blocking of a suspect’s automobile with one or more cruisers so that the auto *143 mobile cannot move would not be, by itself, so intrusive as to change an otherwise lawful Terry stop into an arrest. 6 See Commonwealth v. Wren, 391 Mass. 705, 707 (1984); Commonwealth v. Riggins, 366 Mass. 81, 86-87 (1974).

1986The defendant (appropriately in view of the quick confirmation of the tip by the appearance of the defendant headed outbound minutes after the dispatch) expressly conceded in the trial court and concedes here that the police had grounds that rose to the level of reasonable, articulable suspicion under Terry analysis. 3 The same was implicitly held in Commonwealth v. Riggins, 366 Mass. 81 (1974), where a blocking stop by two police cruisers was treated as justified under Terry principles. 4 The officers soon realized that he differed in weight and clothing.

2007If a police officer conducts a Terry stop, Terry v. Ohio, 392 U.S. 1 (1968), and a defendant subsequently files a pretrial motion to suppress evidence seized as a result of the stop, the Commonwealth bears the burden of proving that the officer had reasonable suspicion to believe that “a person has committed, is committing or about to commit a crime.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004), quoting Commonwealth v. Watson, 430 Mass. 725, 729 (2000).

2001“In evaluating the propriety of a Terry stop, we inquire whether the initiation of the stop was proper in the circumstances and whether the scope was justified by the circumstances.” Commonwealth v. Watson, 430 Mass. 725, 729 (2000), citing Commonwealth v. Silva, 366 Mass. 402, 405 (1974).

2004See Commonwealth v. Rodriguez, 430 Mass. 577, 583-585 (2000) (roadblock does not comport with art. 14 when it is nothing more than a “generalized search for evidence of criminal activity conducted without probable cause or reasonable suspicion”); Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999) (police should not prolong routine traffic stops “in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime”).

2004The Commonwealth has conceded, as it must, that the stop of the defendant’s vehicle constituted a “seizure,” see Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000), and cases cited, and that the trooper had no articulable suspicion concerning the defendant or his vehicle that would justify a Terry stop.

2003Compare Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999), quoting from United States v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (“Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere”).

1993See also United States v. Bautista, 684 F.2d 1286, 1289-1290 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (handcuffing permitted for investigative stop where two armed robbery suspects appeared nervous and one suspect was pacing up and down); United States v. Laing, 889 F.2d 281, 285-286 (D.C.

1997Compare Commonwealth v. Silva, 366 Mass. 402, 406-408 (1974); Commonwealth v. Willis, 415 Mass. 814, 817-818 (1993).

1995If at that moment Rodday was conducting a Terry stop, see Terry v. Ohio, 392 U.S. 1, 20-22 (1968), the stop was justified because he “had a reasonable suspicion, based on specific, articulable facts and reasonable inferences, that the defendant [s] had committed, w[ere] committing, or w[ere] about to commit a crime.” Commonwealth v. Willis, 415 Mass. 814, 817 (1993), and cases therein cited.

1996Accord Adams v. Williams, 407 U.S. 143, 144-146 (1972) (brief stop of defendant who was reported as carrying narcotics and a concealed weapon and sitting alone in a high crime area in the early morning hours held permissible to determine defendant’s identity); Brown v. Texas, 443 U.S. 47, 51 (1979) (officer may detain suspect for brief questioning where he has reasonable suspicion to believe that individual is involved in criminal activity); United States v. Hensley, 469 U.S. 221, 229 (1985) (Terry stop permissible to investigate the suspicion that the defendant was wanted in connection with a

1988See Adams v. Williams, supra at 147 . 7 The judge’s comments about the failure of the police to obtain a search warrant when there was, in his view, adequate opportunity to do so are curious.

1995See United States v. Laing, 889 F.2d 281, 285-286 (D.C.

1993See also United States v. Bautista, 684 F.2d 1286, 1289-1290 (9th Cir. 1982), cert. denied, 459 U.S. 1211 (1983) (handcuffing permitted for investigative stop where two armed robbery suspects appeared nervous and one suspect was pacing up and down); United States v. Laing, 889 F.2d 281, 285-286 (D.C.

2025The court further finds that the length of time the youths were detained did not transform the Terry stop into an arrest. "' In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."' Commonwealth v. Feyenord, 445 Mass. 72 , 81 - 82 (2005), quoting United States v. Sharpe, 470 U.S. 675,686 (1985); see Commonwealth v. Barros, 425 Mas

2009See Commonwealth v. Feyenord, 445 Mass. 72, 76 (2005), cert. denied, 546 U.S. 1187 (2006); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 527-528 (1995).

2019For purposes of the Terry analysis, as discussed infra , we accept the judge's premise that the officers might have eventually allowed the defendant to return to the minivan. 18 See Santiago , 53 Mass. App. Ct. at 571 , 760 N.E.2d 800 (reasonable under Terry for officer to check vehicle for weapons "when the driver and vehicle matched descriptions arising from recent attacks in the area by an individual armed with a dangerous weapon"); Lantigua , 38 Mass. App. Ct. at 528 , 649 N.E.2d 1129 (officer properly conducted " Terry -type search" based on "particular danger to an officer when the perso

2019For purposes of the Terry analysis, as discussed infra , we accept the judge's premise that the officers might have eventually allowed the defendant to return to the minivan. 18 See Santiago , 53 Mass. App. Ct. at 571 , 760 N.E.2d 800 (reasonable under Terry for officer to check vehicle for weapons "when the driver and vehicle matched descriptions arising from recent attacks in the area by an individual armed with a dangerous weapon"); Lantigua , 38 Mass. App. Ct. at 528 , 649 N.E.2d 1129 (officer properly conducted " Terry -type search" based on "particular danger to an officer when the perso

2008Commonwealth v. Thibeau, 384 Mass. 762, 763 (1981), quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974).

1995In Thibeau , we held that officers may not pursue a suspect without the reasonable suspicion required for a Terry stop because “pursuit that appears designed to effect a stop is no less intrusive than a stop itself.” Id. at 764 .

2002L. c. 41, § 99); Commonwealth v. Andrews, 34 Mass. App. Ct. 324, 330 (1993) (officer from East Bridgewater, sworn in as special police officer in Whitman, had same authority as a Whitman police officer to make a Terry stop of the defendant in Whitman without any specific request from Whitman to investigate).

1995Cir. 1989), cert, denied, 494 U.S. 1008 (1990); Commonwealth v. Robbins, 407 Mass. 147, 151-152 (1990); Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) (“the use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest”); Commonwealth v. Andrews, 34 Mass. App. Ct. at 329 .

1996Accord Adams v. Williams, 407 U.S. 143, 144-146 (1972) (brief stop of defendant who was reported as carrying narcotics and a concealed weapon and sitting alone in a high crime area in the early morning hours held permissible to determine defendant’s identity); Brown v. Texas, 443 U.S. 47, 51 (1979) (officer may detain suspect for brief questioning where he has reasonable suspicion to believe that individual is involved in criminal activity); United States v. Hensley, 469 U.S. 221, 229 (1985) (Terry stop permissible to investigate the suspicion that the defendant was wanted in connection with a

1991In United States v. Hensley, 469 U.S. 221 (1985), the Supreme Court addressed the question whether an officer of a police department may make a Terry stop in reliance on a “wanted flyer” issued by a neighboring police department indicating that the defendant was suspected of robbery.