Search and seizure – Reasonable suspicion – Discarded drugs

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Where a defendant, following the denial of his motion to suppress, was convicted of possession of cocaine with the intent to distribute, a majority is of the view that the motion to suppress was properly denied, so the judgment of conviction should be affirmed.

“The defendant, Byron Palmer, was arrested outside an apartment complex in the Jamaica Plain section of Boston after fleeing from approaching police officers who sought to question him about an earlier robbery and shooting in the same location. A judge of the Superior Court denied a motion to suppress in which the defendant maintained that the officers lacked reasonable suspicion to question him. After a jury trial, the defendant was convicted of possession of cocaine with the intent to distribute, G.L.c. 94C, §32A(c). On appeal, the defendant challenges only the denial of the motion to suppress.

“Resolving this appeal requires that we determine first the moment of seizure and then whether the police had reasonable suspicion to seize the defendant at that moment. … As reflected in this opinion and the concurring and dissenting opinions that follow, eighteen Justices are of the view that, at the latest, the defendant was seized the moment he turned to flee and was pursued by the police — before he began to empty his pockets. These eighteen Justices join part 1 of the discussion, which is therefore a majority opinion of the court. Six Justices are of the view that the defendant was not seized until the police either physically detained him or blocked his path and would affirm the motion judge’s view that the cocaine and other items were discarded before this happened.

“On the question of reasonable suspicion, thirteen Justices are of the view that, assuming that the seizure occurred no later than when the police began to pursue the defendant, there was reasonable suspicion to believe that he had committed a crime and, therefore, to seize him. Twelve of these Justices join part 2 of the discussion, which is therefore a plurality opinion. Eleven Justices are of the view that the police did not have reasonable suspicion to seize the defendant at the time of the seizure. Accordingly, a majority of the court is of the view that the motion to suppress was properly denied, and the judgment of conviction should be affirmed.”

Concurring judge’s comments

Ditkoff, J. (concurring, with whom Meade, Neyman, Singh, Englander and Hodgens, JJ., join). “I concur because it is settled law that police officers do not seize a running defendant merely by running after that defendant. One does not need police authority to follow someone, even someone who is running. Instead, a seizure occurs when pursuit is accompanied by a command to stop or by other actions communicating the use of police authority to require the defendant to stop. …

“Because the defendant discarded the drugs before being seized, there is no basis for suppressing the drugs. … Moreover, once the defendant discarded drugs in plain view of the police officers, they unquestionably had reasonable suspicion to seize him. … Accordingly, the motion judge properly denied the motion to suppress.

I respectfully concur in affirming the judgment.”

Dissenting judges’ comments

Massing, J. (dissenting in part, with whom Rubin, Henry, Desmond, Sacks, Shin, D’Angelo, Smyth, Toone, Tan and Wood, JJ., join). “When a defendant files a motion to suppress alleging that the police unconstitutionally exercised their coercive powers to detain him for the purposes of investigating a crime, it is critical not only for the public’s confidence in the legitimacy of law enforcement, but also for the integrity of our criminal justice system, that prosecutors and the police come to court prepared to supply evidence of the specific, articulable facts that the police possessed and relied on to justify the seizure. ‘We do not blindly accept officers’ reliance on information obtained through police channels; the government must substantiate the basis of the information.’ United States v. Alvarez, 40 F.4th 339, 352 (5th Cir. 2022). The evidence adduced at the suppression hearing showed that the police stopped the defendant based on nothing more than his skin color, hairstyle, and hat — descriptive features that could fit any number of young men in the area where the stop occurred and did not rise to the level of reasonable suspicion that the defendant was the same man seen on video surveillance footage almost two weeks before. Because the Commonwealth failed to produce evidence demonstrating that the officers’ decision was based on anything more, and because in my view the majority draws unwarranted inferences to compensate for this absence of proof, I respectfully dissent from part 2 of the plurality’s opinion.”

Shin, J. (dissenting in part, with whom Rubin, Massing, Henry, Desmond, Sacks, D’Angelo, Smyth, Toone, Tan and Wood, JJ., join). “I join Justice Massing’s dissenting opinion in full. I write separately to underscore that the problem here lies not with the officers who made the stop but with the prosecution’s failure, in response to the defendant’s motion to suppress, to substantiate the basis of Sergeant Shannon O’Donnell’s information that the defendant was the suspected robber, which was the underpinning of the stop. Thus, the notion that it would have been ‘poor police work’ for the officers not to investigate the defendant based on O’Donnell’s report only serves to obscure the real issue in the case.”

Commonwealth v. Palmer (Lawyers Weekly No. 11-064-25) (44 pages) (Hershfang, J.) (Ditkoff, J., concurring, with whom Meade, Neyman, Singh, Englander and Hodgens, JJ., join) (Massing, J., dissenting in part, with whom Rubin, Henry, Desmond, Sacks, Shin, D’Angelo, Smyth, Toone, Tan and Wood, JJ., join) (Shin, J., dissenting in part, with whom Rubin, Massing, Henry, Desmond, Sacks, D’Angelo, Smyth, Toone, Tan and Wood, JJ., join) A pretrial motion to suppress evidence was heard by Michael P. Doolin, J., a motion for reconsideration was considered by him, and the cases were tried before James F. Lang, J., in Superior Court. Craig E. Collins on appeal for the defendant; Henry Drembus (Ian MacLean also present) for the commonwealth (Docket No. 24-P-365) (Sept. 19, 2025).

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