COMMONWEALTH vs. ANTHONY SPAGNOLO (and three companion cases [Note 1]).

BROWN, J. Each defendant was indicted on two counts of unlawfully carrying a firearm under his control in a motor vehicle. The weapons in question were seized as a result of a warrantless search. A judge of the Superior Court allowed the defendant's motions to suppress the evidence. In

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allowing the motions to suppress, the judge concluded that the Commonwealth had not shown a "sufficient foundation for a suspicion that unknown occupants of an automobile were engaged in wrongdoing." Pursuant to Mass.R.Crim.P. 15 (b) (2), 378 Mass. 884 (1979), the case was reported to the Appeals Court by a single justice of the Supreme Judicial Court, who, after hearing, allowed the Commonwealth's application for leave to appeal from the allowance of the defendants' motions to suppress.

Specific and articulable facts and reasonable inferences which flow therefrom are necessary to justify a stop motivated by suspicion that a crime has been, is being, or will be committed. See Commonwealth v. Almeida, 373 Mass. 266, 270-272 (1977). In addition, where the stop is of an automobile, such information must be shown to have been available before the automobile is stopped. In this regard, a stop of a vehicle will be deemed to have begun once the pursuit calculated to effect that stop has begun. Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). Where a trial judge has made factual findings in support of his denial or allowance of a motion to suppress, "they will be accepted by an appellate court absent clear error." Commonwealth v. Jones, 375 Mass. 349, 354 (1978). In addition, while a trial "judge's ultimate legal conclusion . . . is entitled to substantial deference, . . . such an ultimate legal conclusion, . . . drawn from the facts developed at the suppression hearing, is a matter for review . . . , particularly where the conclusion is of constitutional dimensions." Commonwealth v. Jones, supra. Thus, a trial judge's ruling on a motion to suppress may be reversed where the facts found are clearly erroneous or "where justice requires [that the appellate court] substitute its judgment for that of a trial judge at the final stage." Commonwealth v. Moon, 380 Mass. 751, 756 (1980).

The clear error standard is a very limited form of review in this context. Where there has been conflicting testimony as to a particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted.

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Commonwealth v. Jones, supra at 354. "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of [an appellate] court." Commonwealth v. Moon, supra at 756.

With regard to the motion judge's findings, there is no question, with perhaps one exception, that his subsidiary findings were warranted by the evidence. The critical problem here relates to an absence in the judge's findings of a particular event which allegedly occurred and for which there is no contradictory testimony. In this regard, it is unclear whether the judge's failure to mention this event was inadvertent or whether he chose not to believe that the event occurred so that his failure to mention it was purposeful. Compare Commonwealth v. Jones, 9 Mass. App. Ct. 83, 90-91 (1980). The event in question is crucial in determining whether the officer's decision to follow and subsequently stop the automobile in which the defendants were riding was based upon a reasonable inference drawn from specific and articulable facts or whether it was based upon a constitutionally impermissible hunch or guess. Compare Commonwealth v. Almeida, 373 Mass. at 272.

We summarize the judge's findings. On September 4, 1981, Detective Michael Cutillo, a Revere police officer with eight years of experience, three in the rank of detective, was in an unmarked police vehicle with his partner, Detective Nunez, both in plain clothes. At some time during the early evening hours Detectives Cutillo and Nunez received a radio report of a disturbance at Zeke's Lounge. In response, Cutillo and Nunez drove to Zeke's Lounge, where they observed a large crowd of approximately twenty persons drunk and disorderly outside of the lounge. The detectives also observed that one Maureen Simone had been injured. She was bleeding and appeared to have a broken nose. Detectives Cutillo and Nunez spoke with Simone in an effort to learn the identity of her assailant, but they had no success. Prior to the officers' arrival Simone had been inside Zeke's Lounge. As she was attempting to make her

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way through a crowd which had assembled, she was struck and knocked down. Apparently she lost consciousness. She could not recall either who struck her or what occurred after she had been struck. Cutillo did learn that Simone had been kicked in the nose by another woman. The lounge's proprietor, one Zalenda, had telephoned the Revere police department as a consequence of the disturbance, although he had not observed the events which had occurred outside the lounge. Cutillo and Nunez dispersed the crowd and left.

Approximately twenty minutes later, Cutillo and Nunez received another radio communication of yet another disturbance at Zeke's, and they returned to the lounge. Upon their arrival the officers observed a large crowd outside which included the four defendants who, because of their neat attire, "stuck out like a sore thumb." In response to Cutillo's question whether "there had been any problem with the four defendants," Zalenda said "no." Zalenda further stated that "they were friends of his" and that everything was "fine." As the two officers began to disperse the crowd, Cutillo observed the four defendants and Zalenda go around the corner out of his view. About five minutes later, Zalenda returned, bleeding from the left ear. Cutillo asked Zalenda what had occurred. Zalenda denied that the defendants had struck him and denied that the defendants had guns. As Detective Cutillo was leaving the scene, after having dispersed the crowd and after the defendants had left, he heard a female voice yell, "they got guns." From another person in the crowd the officers learned that one of the four defendants was the injured woman's brother-in-law.

Deciding that it would be important to determine whether the four defendants in fact possessed guns and whether they were looking for Simone's assailant, Detectives Cutillo and Nunez began to drive around searching for the defendants. After driving around the area for a few minutes, Cutillo observed a 1980 Lincoln Continental travelling in a direction away from the Lounge. That

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vehicle was proceeding at a moderate rate of speed south on Ocean Avenue and was not engaged in any activity which would have alerted Cutillo's suspicions. Despite that, Cutillo began to follow that vehicle, "guessing" that the four defendants were riding in it. Cutillo then radioed ahead to alert another police vehicle. Cutillo directed the other officers to follow the Lincoln and to put on the blue flashing lights when both of their vehicles were behind the Lincoln. When Cutillo's vehicle and the other police vehicle were appropriately positioned, the operator of the other police vehicle turned on the flashing lights, and as the Lincoln pulled over it was cut off by Cutillo's vehicle. As Cutillo was passing the Lincoln he recognized the four defendants. Detective Cutillo had previously learned from a radio communication from the other police vehicle that four persons were in the Lincoln. [Note 2] Just before Detective Cutillo pulled over in front of the Lincoln, he observed that the driver was one of the four suspects and that a person sitting in the front passenger seat leaned forward as if to place something under the front seat.

As the four defendants left the Lincoln, leaving the front and rear doors open, Cutillo and his partner approached them with drawn guns and ordered them to raise their hands. Cutillo pat-searched the defendants and found nothing. He then looked into the front seat of the Lincoln and observed the butt of a pistol sticking out from under the front seat and retrieved it. Nunez then searched under the front seat from the rear and seized another pistol.

At the time he arrested the defendants, Detective Cutillo testified that he feared for his own personal safety, and the judge found his testimony credible. Cutillo testified further that he stopped the Lincoln to determine if the four men were the same men who were at Zeke's Lounge, and to determine if they had guns and whether they were looking for Simone's assailant.

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Based on these findings the judge determined that the detectives' reason for pulling over the defendants' car was because it was "the first car they guessed [emphasis supplied] the defendants might be riding in." [Note 3] Notwithstanding the judge's finding that the totality of the circumstances "may arguably have provided the detectives with the quantum of articulable suspicion necessary to support an investigatory stop of the defendants," [Note 4] the judge concluded that, since "the Detectives [had] observed nothing suspicious about either the car or its occupants . . . [and since] there [was nothing] peculiar about the car and its direction of travel which would tie it to what happened at Zeke's," the detectives' action in stopping the car was essentially random and unsubstantiated by any reasonable suspicion that the car indeed contained the defendants.

Apart from the unsettling determination that the stop was not "in any way connected to the event at Zeke's," there is a more significant problem with the findings. There was testimony that Detective Cutillo, simultaneously with hearing that "they got guns," observed a Lincoln turn the corner of Shirley Avenue and approach his location at the corner of Garfield Avenue. Cutillo made this observation prior to entering his vehicle. Cutillo and his partner initially drove off in the direction the four men had taken on foot with Zalenda and, not finding them still in that general area, decided to follow the Lincoln previously sighted in order to ascertain whether it contained the four men.

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The judge found that, after hearing the shout "they got guns" the detectives "began to drive around searching for the defendants [and] after driving around . . . for a few minutes . . . observed a . . . Lincoln . . . travelling in a direction away from the lounge." That finding, however, is contextually and chronologically deficient. Cutillo never testified nor did the judge find that the first time Cutillo observed the Lincoln was after he and his partner began to drive around searching for the defendants. [Note 5] Thus, Cutillo's testimony that he had first observed the Lincoln while standing on the corner of Garfield Avenue stood uncontradicted. [Note 6] The judge should have made a specific finding indicating his belief or disbelief of the testimony. The confusion caused by this deficiency is compounded by the judge's conclusion that there was nothing "peculiar about the car and its direction of travel which would tie it to what happened at Zekes." Certainly, sighting the Lincoln coming from the direction which the four men and Zalenda had taken on foot, viewed in the context of a simultaneous shout -- "They got guns" -- and a subsequent check of the area to make sure the four men were not still on foot, could reasonably be said to warrant Detective Cutillo's "guess" that the car probably contained the four men and should, therefore, be followed. [Note 7] It is to be noted that, prior to the point at which a stop can be said to have begun, see Commonwealth

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v. Thibeau, 384 Mass. at 764, Cutillo learned, as the judge found, that the Lincoln did contain four men. [Note 8] These facts warranted the police officer's inference [Note 9] that the Lincoln contained the four men whom the judge found were "arguably" the reasonable objects of a Terry-type [Note 10] stop and frisk.

Finally, taking into account Detective Cutillo's experience, it seems highly (we would hope) unlikely that he or any other police officer would have begun stopping cars at random in order to find the four men eventually. The stop here would plainly have been justified if the officer, by his first observation, indeed had connected the Lincoln in time

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and proximity with criminal activity which may have occurred, [Note 11] was likely occurring, [Note 12] or which might occur. [Note 13]

In view of the foregoing, the motion judge must make additional findings. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.