A lawyer for accused arsonist Anthony Baye said this morning that police tried to trick him into confessing by telling him he wouldn't be charged with a crime. Baye, 26, of 85 Hawley St., has pleaded innocent to two counts of murder and multiple other charges connected to a string of suspicious fires around Northampton Dec. 27, 2009. Two state police investigators, Trooper Michael Mazza and Sgt. Paul Zipper, told Baye they had already "conclusively proven" that Baye set the fires, said defense attorney David Hoose. All they wanted to know, Hoose said, was why. Special prosecutor Brett Vottero said Baye voluntarily admitted setting the fires. Vottero described Baye's requests for a lawyer as "equivocal." Vottero said the state troopers told Baye he could leave the police station at any time, but he agreed to continue speaking with them, Vottero said.
A lawyer for accused arsonist Anthony Baye said this morning that police tried to trick him into confessing by telling him he wouldn't be charged with a crime. Baye, 26, of 85 Hawley St., has pleaded innocent to two counts of murder and multiple other charges connected to a string of suspicious fires around Northampton Dec. 27, 2009. Two state police investigators, Trooper Michael Mazza and Sgt. Paul Zipper, told Baye they had already "conclusively proven" that Baye set the fires, said defense attorney David Hoose. All they wanted to know, Hoose said, was why. Special prosecutor Brett Vottero said Baye voluntarily admitted setting the fires. Vottero described Baye's requests for a lawyer as "equivocal." Vottero said the state troopers told Baye he could leave the police station at any time, but he agreed to continue speaking with them, Vottero said.
A lawyer for accused arsonist Anthony Baye said this morning that police tried to trick him into confessing by telling him he wouldn't be charged with a crime. Baye, 26, of 85 Hawley St., has pleaded innocent to two counts of murder and multiple other charges connected to a string of suspicious fires around Northampton Dec. 27, 2009. Two state police investigators, Trooper Michael Mazza and Sgt. Paul Zipper, told Baye they had already "conclusively proven" that Baye set the fires, said defense attorney David Hoose. All they wanted to know, Hoose said, was why. Special prosecutor Brett Vottero said Baye voluntarily admitted setting the fires. Vottero described Baye's requests for a lawyer as "equivocal." Vottero said the state troopers told Baye he could leave the police station at any time, but he agreed to continue speaking with them, Vottero said.
A lawyer for accused arsonist Anthony Baye said this morning that police tried to trick him into confessing by telling him he wouldn't be charged with a crime. Baye, 26, of 85 Hawley St., has pleaded innocent to two counts of murder and multiple other charges connected to a string of suspicious fires around Northampton Dec. 27, 2009. Two state police investigators, Trooper Michael Mazza and Sgt. Paul Zipper, told Baye they had already "conclusively proven" that Baye set the fires, said defense attorney David Hoose. All they wanted to know, Hoose said, was why. Special prosecutor Brett Vottero said Baye voluntarily admitted setting the fires. Vottero described Baye's requests for a lawyer as "equivocal." Vottero said the state troopers told Baye he could leave the police station at any time, but he agreed to continue speaking with them, Vottero said.
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, ss. SUPERIOR COURT
No. 10-24-38
COMMONWEALTH
v.
ANTHONY BAYE
COMMONWEALTH’S OPPOSITION TO DEFENDANT’S MOTION
TO SUPPRESS “FRUITS” OF INTERACTIONS WITH POLICE
The Commonwealth opposes the defendant’s motion to suppress. At 1:58 in the morning
of December 27, 2009, a 911 caller reported a fire at a home on Union Street in Northampton.
Within moments, the owner of the home located at 26 Union Street, Henry Siegal, also called
911 to report the fire. Over the next 75 minutes, the Northampton Public Safety dispatch center
was overwhelmed by numerous reports from residents and public safety officers reporting fires
on Highland Avenue, Fair Street, William Street, Northern Avenue, Pomeroy Terrace, Crescent
Street, and Franklin Street, One of those fires took the lives of the lives of Paul Yeskie, Sr., and
his son, Paul Yeskie, Jr., who died after being trapped inside the first floor of their home at 17
Fair Street, After daylight broke on the city, additional fires were discovered and reported by
city residents.
The defendant had two interactions with the police in the early-morning hours of
December 27, while the fires raged. The first occurred at about 3:23 a.m., at Arlington Place,
near the scene of a fire that had been reported ten minutes earlier. The second occurred about
five minutes later, in the vicinity of another fire. ‘The defendant claims that these interactions
with the police were “stops” that required either a warrant or probable cause. But as will be
1made clear during the hearing, these were not “stops” in the constitutional sense, In both
instances, the defendant brought his car to a halt on his own accord — the first by pulling into a
driveway, and the second by parking on the roadside — prior to any action by the police. The
individual officers’ ensuing approaches of and conversations with the defendant did not involve
“seizure” of the defendant — no sirens, flashing lights, or oppressive shows of authority
accompanied these encounters. Both times the officers left the defendant within minutes and
moved on. Moreover, although a “reasonable suspicion” of criminal activity was unnecessary to
justify these actions, the officers had it nonetheles
‘The defendant's repeated documented
presence in the midst of this unprecedented string of fires, combined with his evasive and
suspicious behavior, at a minimum warranted a threshold inquiry by the police. In any event, in
light of the severe emergency confronting the officers that early morning, they were justified in
conducting a threshold inquiry of anyone in that area even in the absence of a reasonable
suspicion of eriminal
On December 27, 2009, between the hours of 2:00 a.m, and 3:30 a.m., over a dozen
arson fires blazed within a two-mile radius in the City of Northampton, Several homes and
vehicles were engulfed by flames. An inferno at 17 Fair Street took the lives of Paul Yeskie, Sr.
and his son, Paul, Jr. Due to the multitude and severity of the fires, Northampton required the
assistance of fire departments from several other cities and towns, including Holyoke,
Williamsburg, Hadley, South Hadley, Amherst, and Greenfield, Local and State police,
including members of the Fire and Explosion Investigation Unit, also frantically tried to keep
pace with the mounting number of reported fires.‘The first call reporting a fire came in at 1:58 a.m. Forty-five minutes later, at 2:43 am.,
in the midst of the spree of fires, Northampton police officer Justin Houten had left a vehicle fire
at 25 Williams Street to respond to another fire on Elizabeth Street when he saw a Camry with a
single occupant take a right-hand tum onto Williams Street from Holyoke Street. He ran the
license plate (38CB67) through
is laptop computer and received the registered owner's
information: Anthony Baye, 85 Hawley Street, Northampton, The Camry took a right onto
Hockanum Road then a left onto Pleasant Street, heading south.
Forty minutes later, at 3:23 a.m., Trooper Brian Pearl of the Massachusetts State Police,
saw the Camry in the area of Crescent Street. He too ran the license plate and learned of the
registered owner's information,
Shortly thereafter, Trooper David Paul’s cruiser was stopped ata stop sign on Arlington
Street at the intersection with Arlington Place.' He saw a car traveling toward him on Arlington
Place. The car’s headlights suddenly dipped down, as ifthe driver had quickly hit the brakes,
the car slowed down and crossed in front of the trooper. It then tured into a driveway at 15
Arlington Place, Although the driveway extended along the right side of the residence to a
garage at the rear, the car stopped near the mouth of the driveway, not where a vehicle would
normally park to access the residence, Trooper Paul pulled up to the ear—a Camry — and
illuminated it with his eruiser’s spotlight, He queried the car’s license-plate number (38CB67)
at 3:25 a.m,, obtaining the registered owner's information, including a photograph, ‘Trooper Paul
exited his cruiser and sought to speak with the driver (the defendant). He noticed that the driver
‘was the registered owner as depicted in the photograph, though his hair was presently longer
* At3:13 am.,a fire was reported at Franklin Street, which is off of Arlington Place.
3(and was either wet or greasy). In response to the trooper’s question concerning what he was “up
10,” the defendant stated, “I’m coming over my girlfriend’s house.” When Trooper Paul said that
there were numerous fires in the area, the defendant had a surprised look on his face. The
‘trooper did not see any suspicious materials in plain view. He asked for and received the
defendant's consent to look in the trunk. ‘There was nothing of note in there, save a baseball bat.
Trooper Paul, who could tell that the defendant had been drinking, advised him to go inside and
not to drive for the rest of the night. Trooper Paul then left the defendant there and resumed his
patrol.
Minutes later, at 3:32 a.m., Detective Corey Robinson of the Northampton Police
Department was on Bancroft Road (between Crescent and Franklin streets) when he saw a
Camry tum left onto Bancroft from Franklin Street, Parked vehicles on the side of the road
prohibited the simultaneous passage of two vehicles. The Camry immediately pulled to the side
of the road as if to park, and Detective Robinson drove forward and stopped alongside the
Camry. He asked the driver —the defendant — what he was doing. The defendant, pointing to the
duplex in front of which he parked at 9-11 Bancroft, replied that he was going to his girlftiend’s
house for the night. He appeared to be very nervous, had bloodshot eyes, and smelled of alcohol.
Asked for his own address, the defendant stated that he lived on the second floor of his parents?
home at 85 Hawley Street. The detective asked who his girlfriend was and where she lived. ‘The
defendant responded that his girlfriend was Solena James and that she lived in the duplex at 9-11
Bancroft Road. ‘The defendant claimed that he had just left his friend Zach’s house. The
detective asked the defendant why he was so wet, to which the defendant replied that he had to
walk from his friend’s house to the car.Detective Robinson received the defendant's license, which he turned over to Officer
Bazer, who had just arrived, for license confirmation. Officer Bazer did so at 3:35 a.m. Officer
Bazer also ran a license and registration check for the defendant's girlfriend, Solena James, and
Jeamned that she owned a gray Honda Accord, but that her registered address was 113 Market,
Street. Suspecting that Ms. James may have moved but not notified the RMV, Detective
Robinson checked the street and behind the duplex for her car, but was unable to locate it, Still
seeking confirmation that she lived there, he asked the defendant if he could call her. The
defendant dialed a number, but explained that she was not picking up. Detective Robinson then
asked if the defendant could run inside and have his girlfriend come outside to speak with him.
‘The defendant ran around the comer of the duplex and returned a short time later. He explained
that his girlfriend was not answering the door. The detective stated that he did not think the
defendant was being completely truthful with respect to the girlftiend and asked for consent to
search his car, noting that there had been a recent rash of fires, The defendant consented and
assisted by opening the trunk, Detective Robinson found nothing suspicious, He asked the
defendant if he smoked. In response, the defendant produced a Bie-style lighter and a pack of
cigarettes. Detective Robinson left the scene soon thereafter.
Argu
‘The defendant’s motion is premised on the notion that the defendant was “seized” by
Trooper Paul and later by Detective Robinson. ‘The motion must be denied because the premise
is faulty. Neither officer “seized” the defendant during their brief interactions with him.
“Obviously, not all personal intercourse between policemen and citizens involves
‘seizures’ of persons.” Commonwealth v. Leonard, 422 Mass. 504, 508 (1996), quoting Terry
Ohio, 392 U.S. 1, 19 n.16 (1968), Indeed, “police officers may approach individuals on thestreet to ask them about their business without implicating the balance between State power and
individual freedom.” Commonwealth v, Nareisse, 457 Mass. 1, 5 (2010). “Only when the
officer, by means of physical force or show of authority, has in some way restrained the liberty
of a citizen may [a court] conclude that a ‘seizure’ has occurred.” Leonard, supra, quoting Terry
-¥.Ohio, supra. Short of that, such interactions “properly are deemed consensual encounters
because the individual approached remains free to terminate the conversation at will. That is,
they are constitutionally insignificant, and a police officer may initiate such an encounter without
any information indicating that the individual has been or is presently engaged in criminal
activity.” Narcisse, supra, at 6 (citation excised),
‘Trooper Paul's interaction with the defendant never rose to the level of a seizure. The
defendant tuned the Camry into a driveway on his own accord. When Trooper Paul pulled up to
the car, he did not activate the cruiser’s siren or flashing lights. Instead, he used a spotlight to
id in illumination. “Use of the spotlight to enhance visibility was reasonable in the
circumstances and qualitatively, quite unlike the use of a siren, flashers or blue lights.”
Commonwealth v. Scott, 52 Mass. App. Ct. 486, 493 (2001) (Lenk, J.). Accord Commonwealth
v. Clark, 452 Mass. 1022 (2008), affirming sub nom, Commonwealth v, Briand, 71 Mass. App.
Ct. 160, 162-163 (2008) (involving white “take down lights”). Nor was there a seizure when he
approached the driver and asked what he was “up to.” As noted, “police officers may approach
individuals on the street to ask them about their business without implicating the balance
between State power and individual freedom.” Narcisse, 457 Mass
at 5, The trooper told him
that there had been numerous fires in the area, which he was permitted to do. Compare id., at 6
(no seizure for officer to inform “men that there had been ‘activity’ nearby and ask{] what the
‘two men were doing in the area”). He asked for, and received, the defendant’s consent to look in
6the trunk, There is no indication that this consent was anything but voluntary, Trooper Paul
soon thereafter left the defendant with the sage advice to go inside and to leave driving for
another day.
Likewise, Detective Robinson’s interaction with the defendant minutes later did not
constitute a seizure, ‘The defendant pulled the Camry over to the side of the road as if to park it.
Detective Robinson drove up alongside and engaged him in conversation. ‘That was proper. No
seizure results if an officer pulls up to the driver’s side of a car that is “already stopped” and
makes inquiry of the driver. Commonwealth v. McHugh, 41 Mass. App. Ct. 906, 907 (1996).
Nor did the ensuing conversation transform the encounter into a seizure, The detective asked the
defendant what he was doing (answer: visiting his girlfriend), where he lived (85 Hawley Street),
the identity of his girlfriend, (Solena James), and why he was so wet (he had to walk from his
friend’s house to the car), Compare Commonwealth v, Thinh Van Cao, 419 Mass. 383, 387-388
(1995) (no seizure where uniformed officer approached defendant in public and asked several
questions), Similarly, the request to see the defendant's license was proper. See Commonwealth
ans, 436 Mass. 369, 375 (2002) (“the trooper’s request for the defendant's license and
registration was not a seizure”). “There is no evidence that by requesting the defendant's
license{,] the officer restrained the defendant through any physical force or authority.” I
the subsequent requests also lacked a coercive element. The defendant freely dialed his
girlftiend’s number (or at least pretended to do so) and sought to fetch her from inside the
residence, reporting after both instances that she was unresponsive. As he had for Trooper Paul,
he consented to a search of his trunk, even assisting by opening it. Asked if he smoked, the
defendant produced a lighter and a pack of cigarettes, At no point was the defendant’s libertyrestrained “by means of physical force or show of authority.” Leonard, 422 Mass. at 508,
quoting Terry v. Ohio, 392 U.S. at 19 n.16.
Although these encounters did not require that the police have a reasonable suspicion of
criminal activity, it was present nonetheless. In evaluating this question, the “collective
knowledge” of the police must be considered, Commonwealth v, Bell, 78 Mass. App. Ct. 135,
139 (2010), and the fragmentary information possessed by different officers must be combined
and imputed to the officer on the scene. To take the most recent case as an example, in Bell,
supra, two separate callers reported a gunman to a 911 dispatcher and described the man and his
vehicle, including the license-plate number. Id., at 136. The dispatcher did not include the
license-plate number in the broadeast to the officers in the field, one of whom stopped the
defendant's car based on the physical descriptions alone, Id., at 136-137. In determining the
validity of the stop, the Court held that the license-plate information must be considered
(although never imparted to the field officer) under “the collective knowledge rule.” Id, at 139.
Here, before Trooper Paul approached the defendant, the defendant had twice been seen
in the fire-zone by other officers within a 45-minute span. At 2:43 a.m., Officer Houten had left
a vehicle fire at 25 Williams Street to respond to another fire on Elizabeth Street when he saw
the defendant's car take
right-hand turn onto Williams Street from Holyoke Street. He ran the
license plate and received the defendant's information. ‘The defendant's car took a right onto
Hockanum Road then a left onto Pleasant Street, heading south, Forty minutes later, at 3:23
a.m., Trooper Pearl saw the defendant's car in the area of Crescent Street and ran the plate.
Shortly after that, Trooper Paul saw the defendant’s car traveling on Arlington Place (which is
off of Franklin Street, where a fire had been reported about ten minutes earlier). So the
on
\dant had been spotted three times within 45 minutes in the concentrated area associated
8with the fires. ‘There are certain people that would be traveling in that particular area for that
length of time: emergency personnel responding to the fires, and the arsonist or arsonists setting
the fires. It is difficult to conceive of anyone unconnected to the fires who would follow a
similar course, especially given the odd hour. In any event, “[tJhe standard of ‘reasonable
suspicion’ does not require that an officer exclude all possible innocent explanations of the facts
and circumstances.” Commonwealth v. Deramo, 436 Mass. 40, 44 (2002).
‘The defendant's behavior while in Trooper Paul’s presence augments the reasonable
suspicion, While the trooper was waiting at the intersection, he saw the defendant's car driving
toward him. The car's headlights suddenly dipped, as if the driver hastily hit the brakes. ‘The car
then slowly passed in front of the cruiser and pulled into a driveway at 15 Arlington Place.
Although the driveway extended along the right side of the residence to a garage at the rear, the |
car stopped near the mouth of the driveway, not where a vehicle would normally park to access
the residence. These strange actions could only serve to heighten a suspicion that the defendant
‘was up to wrongdoing, |
Detective Robinson's interaction with the defendant was even more justifiable because
the analysis incorporates the information gained by Trooper Paul minutes earlier, The defendant
told Trooper Paul that his girlfriend lived at 15 Arlington Place, thereby explaining his presence
in that driveway, He said, “I’m coming over my girlfti
nd’s house.” The defendant did not stay
there, but drove to Franklin Street and then turned onto Bancroft Road, where Detective
Robinson saw him, Under the “colle:
ve knowledge” rule, the police could consider the
defendant's
e that he was going to sec his girlfriend at 15 Arlington Place, Moreover, Detective
Robinson’s conversation with the defendant revealed a further lie - one concerning the residence
of his girlfriend (assuming he didn’t have multiple “girlfriends”). He now told the detective that
9his girlfriend lived at 9-11 Bancroft Road, which, incorporating Trooper Paul’s knowledge,
demonstrates an untruth to one or both of the officers. Such fabrication would justify Detective
Robinson’s requests that the defendant verify his girlfriend’s address, telephonically or in person.
The circumstances ~ a person lying about his presence in the n
st of ongoing conflagrations
also permitted the further inquiry concerning whether the defendant was a smoker.
In any event, the magnitude of the ongoing emergency would have justified a threshold |
inquiry of anyone seen in that area, at that time. There exist “‘limited exceptions’ to the
‘requirement that seizures be based on probable cause or reasonable suspicion.””
Commonwealth v. Grant, 57 Mass, App. Ct. 334, 337 (2003), quoting Commonwealth v.
Rodriguez, 430 Mass. 577, 579 (2000). A suspicionless seizure is permissible “where an
intrusion is limited and serves a pressing public purpose.” Id., at 338. For example, an
emergency roadblock aimed at apprehending a fleeing, dangerous suspect is constitutionally
justifiable, even in the absence of particul
ed suspicion. Id., at 339.
Here, there was a comparable “pressing public purpose.” Id., at 338. Within one and
one-half hours, over a dozen fires, including a fatal one, blazed within a two-mile radius in
Northampton, Several homes and vehicles were engulfed by flames. Dealing with the disaster
was beyond the means of local emergency personnel. Assistance came from as far away as
Greenfield, Espe
lly given the early hour, few people would be expected to be on the streets
who were unconnected with the crisis. People had been driven from their homes due to fires,
and others could find themselves in a similar situation, and thus in need of help. The police
should not have to wait to be flagged down before checking on those potentially in need of aid,
‘See Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738-739 (1998) (Spina, J.), aff'd, 428
Mass. 760 (1999) (involving “community caretaking” function of police). Relatedly, if anyone
10outside were unaware of the fires, the officers could alert them to the danger so they could take
care and also be on the lookout. In fact, Trooper Paul did just that in his interaction with the
defendant, informing him that there had been numerous fires in the area. And obviously, the
police had an interest in locating and incapacitating the arsonist. As in Grant, there was “an
undeniable ... serious danger and public threat”; “the police were confronted with a rapidly |
developing situation that required an immediate response,” and “the police had abundant reason
to be apprehensive of the possibility of violence and were understandably concerned for public
safety.” Grant, 57 Mass. App. Ct. at 340. So even in the absence of a reasonable suspicion of
criminal activity, the officers’ interactions with the defendant were proper.
For these reasons, the Commonwealth respectfully requests that this Honorable Court
deny the defendant’s motion to suppress.
Respectfully submitted,
THE COMMONWEALTH
David E. Sullivan
District Attorney
Northwestern District
Breit Vottero
Special Assistant District Attomey
Thomas H. Townsend
Assistant District Attomey
One Gleason Plaza
Northampton, MA 01060
(413) 586-9225
1Certificate of Service
1, Brett Vottero, hereby certify that one copy of the Commonwealth's Opposition was
sent, via first-class mail, postage prepaid, to David P. Hoose, Esq., Sasson, Tumbull, Ryan &
Hoose, 100 Main Street, Third Floor, Northampton, MA 01060, and Thomas Lesser, Esq.,
Lesser, Newman & Nasser, 39 Main Street, Northampton, MA 01060, counsel for the defendant,
on this date,
_
Date Brett Vottero
2