COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss.

SUPERIOR COURT No. 10-24-38

v.

COMMONWEALTH

ANTHONYBAYE

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.

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The defendant had two interactions with the police in the early-morning hours of

December 27, while the fires raged. The first OCCUlTed 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

made 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 a "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 nonetheless. 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 criminal activity.

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Facts

On December 27,2009, between the hours of2:00 a.m. and 3:30 a.m., over a dozen arson fires blazed within a two-mile radius in the City of NOli hampton. 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.

Shortly thereafter, Trooper David Paul's cruiser was stopped at a stop sign on Arlington

The first call reporting a fire came in at 1 :58 a.m. Forty-five minutes later, at 2:43 a.m.,

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 his 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.

Street at the intersection with Arlington Place. 1 He saw a car traveling toward him on Arlington

Place. The car's headlights suddenly dipped down, as if the driver had quickly hit the brakes.

The car slowed down and crossed in front of the trooper. It then turned 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 car - a Camry - and

illuminated it with his cruiser'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

1 At 3:13 a.m., a fire was reported at Franklin Street, which is off of Arlington Place. 3

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(and was either wet or greasy). In response to the trooper's question concerning what he was "up to," 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 Franldin 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 girlfriend'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 learned 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 girlfriend 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 Bic-style lighter and a pack of cigarettes. Detective Robinson left the scene soon thereafter.

Argument

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 v. Ohio, 392 U.S. 1,19 n.l6 (1968). Indeed, "police officers may approach individuals on the

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street to ask them about their business without implicating the balance between State power and individual freedom." Commonwealth v. Narcisse, 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 v. 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 turned 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 aid 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), affinning 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

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the 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 v. Evans, 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." rd. And the subsequent requests also lacked a coercive element. The defendant freely dialed his girlfriend'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 liberty

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restrained "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 broadcast 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 a 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 defendant had been spotted three times within 45 minutes in the concentrated area associated

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with 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, "[t]he 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 girlfriend'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 "collective knowledge" rule, the police could consider the defendant's lie that he was going to see 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

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his 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 midst 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 particularized 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. Especially 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.), affd, 428 Mass. 760 (1999) (involving "community caretaking" function of police). Relatedly, if anyone

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Respectfully submitted,

outside 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.

THE COMMONWEALTH

David E. Sullivan District Attorney Northwestern District

-ztZu£-

Brett V ottero

Special Assistant District Attorney Thomas H. Townsend

Assistant District Attorney

One Gleason Plaza

Northampton, MA 01060

(413) 586-9225

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5-'-9-- I)

Date

)

Certificate of Service

I, 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, Turnbull, 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.

Brett V ottero

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