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18-P-1195 Appeals Court

COMMONWEALTH vs. MAURICE JONES.

No. 18-P-1195.

Suffolk. January 10, 2019. - July 22, 2019.

Present: Wolohojian, Neyman, & Singh, JJ.

Search and Seizure, Protective frisk, Reasonable suspicion, 

Fruits of illegal search, Threshold police inquiry. 

Threshold Police Inquiry. Constitutional Law, Search and 

seizure, Reasonable suspicion, Admissions and confessions. 

Practice, Criminal, Motion to suppress, Admissions and 

confessions. Evidence, Admissions and confessions, Result 

of illegal search.

Indictments found and returned in the Superior Court 

Department on June 26, 2013. 

Pretrial motions to suppress evidence were heard by Linda 

E. Giles, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by David A. Lowy, J., in the Supreme Judicial 

Court for the county of Suffolk, and the appeal was reported by 

him to the Appeals Court.

Ian MacLean, Assistant District Attorney (Julie S. Higgins, 

Assistant District Attorney, also present) for the Commonwealth.

James L. Sultan (Catherine J. Hinton also present) for the 

defendant.
2

WOLOHOJIAN, J. This interlocutory appeal stems from 

motions to suppress1 that the defendant filed in anticipation of 

his third trial on indictments charging murder in the first 

degree and other charges relating to the April 17, 2012 fatal 

shooting of Dinoriss Alston and nonfatal shooting of Ashley 

Platt.2 After conducting an extensive evidentiary hearing,3 a 

Superior Court judge allowed4 the defendant's motions and 

suppressed statements that the defendant and his mother had made 

 

1 The defendant's initial motion sought to suppress his own 

statements to police. After the evidentiary hearing on that 

motion, the defendant filed a posthearing memorandum seeking to 

suppress his mother's statements to police.

2 On June 26, 2013, the defendant was indicted on charges of 

murder in the first degree, G. L. c. 265, § 1, armed assault 

with intent to murder, G. L. c. 265, § 18 (b), assault and 

battery by means of a dangerous weapon, G. L. c. 265, § 15A, and 

unlawful possession of a firearm, G. L. c. 269, § 10 (a). The 

case was first tried in 2014, ending in a mistrial after the 

jury failed to reach a verdict. The case was retried in 2015, 

and a jury convicted the defendant of all charges except for the 

armed assault with intent to murder. In 2017, the Supreme 

Judicial Court vacated the convictions because of irregularities 

in the jury selection process, and remanded for a new trial. 

See Commonwealth v. Jones, 477 Mass. 307 (2017). The motions 

that underlie this appeal were filed after that remand and in 

anticipation of the third trial.

3 The hearing took place over the course of five days and 

testimony was received from eight witnesses.

4 In her initial order the judge suppressed only the 

defendant's statements during the first encounter and the 

mother's statements during the second encounter. However, after 

the defendant moved for reconsideration, the judge amended the 

order and suppressed the defendant's statements during the third 

encounter as well. This appeal is from the motion judge's 

amended memorandum and order.
3

during three encounters with police on the day of the shooting. 

The first encounter occurred when police stopped the defendant 

nearly one-half hour after the shooting to ask him if he knew 

anything about it. At the beginning of this encounter, the 

police pat frisked the defendant without reasonable suspicion. 

The defendant then made certain exculpatory statements, which we 

conclude the motion judge properly suppressed as fruit of the 

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 

487-488 (1963). The second encounter occurred minutes later at 

the defendant's home, where police went to speak with his mother 

to see if she would confirm what the defendant had just told 

them. Unlike the motion judge, we conclude that the mother's 

statements were sufficiently attenuated from the initial 

illegality that they should not be suppressed as fruit of the 

poisonous tree. The third encounter occurred later the same day 

when police, having additional information tying the defendant 

to the description of the shooter, located him to ask further 

questions. These statements did not fall within the "cat-outof-the-bag" doctrine, see Commonwealth v. Mahnke, 368 Mass. 662, 

686 (1975), cert. denied, 425 U.S. 959 (1976), as the motion 

judge concluded, nor was suppression required under the other 

theories raised by the defendant.
4

Background.5 At around 4 P.M. on April 17, 2012, Dinorris 

Alston and his girlfriend, Ashley Platt, were sitting in a car 

parked near a park located between Dunreath and Copeland Streets 

in the Roxbury section of Boston. Shots were fired into the 

car, killing Alston and wounding Platt, who managed nonetheless 

to drive to a nearby gas station for help. As she drove from 

the scene of the shooting, Platt saw a man walking away.

When an officer arrived at the gas station, Platt told him

that the shooter was a black male wearing a white T-shirt and 

khaki pants. That description was broadcast over police radio 

at 4:08 P.M. Hearing that description and a report that shots 

had been fired, Officer Brian Johnson decided to look for the 

defendant in order to speak with him. He knew that the 

defendant frequented the park and the area where the shooting 

had occurred, and he had many times before conducted a field 

interrogation and observation6 of the defendant in the area of 

Dunreath and Copeland streets, including the week before. But 

 

5 We summarize the motion judge's detailed findings, 

supplementing them with additional uncontroverted facts from 

testimony the motion judge implicitly credited. See 

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 

Mass. 818 (2008).

6 "A 'field interrogation [and] observation' has been 

described as an interaction in which a police officer identifies 

an individual and finds out that person's business for being in 

a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813 

n.6 (2009).
5

Johnson had never seen the defendant with a gun and did not know 

him to have any prior firearm convictions. Moreover, Johnson

had never had any problems with the defendant and had no 

information connecting the defendant to the shooting. At the 

time he went looking for the defendant, Johnson was in an 

unmarked car, and he was wearing plainclothes and his badge.

Johnson located the defendant around 4:25 P.M. about one

mile away from Dunreath Street. The defendant, a young black

man, was walking by himself and wearing a white T-shirt with a 

red and grey graphic design of a winged unicorn on the front 

bearing the word "Temptation." He wore khaki cargo-style 

shorts, a black baseball cap with a small red pony logo on the 

front, and black sneakers.

Johnson pulled over, got out of his car, and asked the 

defendant, "What's up?" in a conversational, nonconfrontational 

manner. The defendant answered in a calm and natural tone with 

"[h]ey," or a similar expression. At this point, Johnson patted 

down the defendant's waist and pockets but found nothing. 

Johnson then asked the defendant casually what he was doing and 

where he was going. The defendant replied that he had been at 

his house earlier and that he was going to meet his mother at 

Walgreens to add minutes to his cell phone. Officer Michael 

Fanning joined Johnson during this conversation, but neither 

displayed his firearm or attempted to restrain or handcuff the 
6

defendant. The conversation lasted about five minutes in total, 

and after a brief consultation with his superior officer by 

telephone, Johnson ended the encounter.

The two officers then immediately went around the corner to 

the defendant's home, intending to speak to his mother to see if 

she would verify what the defendant had told them.7 The officers 

did not tell her that they had just spoken to the defendant. 

She denied that she was going to accompany the defendant to 

Walgreens and said she had not spoken with her son since that 

morning. She confirmed that the defendant frequented the area

where the shooting had taken place.

Meanwhile, Platt gave police a more detailed description of 

the shooter, which was broadcast: a young black male with khaki 

shorts, black "Chuck Taylor" sneakers,8 a white shirt with some 

red in it, and a black and red baseball cap.9 Johnson and 

 

7 The mother was not home when the officers arrived but 

arrived shortly thereafter and spoke with the officers on the 

porch of her home.

8 Although the defendant was wearing black sneakers at the 

time he was observed by officers, they were not Chuck Taylor 

sneakers.

9 In two subsequent interviews that day, Platt's description 

varied slightly. In the first of these interviews, she did not 

mention any red in the white shirt. In the second, she 

described the hat as black with a red brim.
7

Fanning were ordered to look for the defendant again given this 

new description.

They found him at around 5:30 P.M., wearing the same 

clothing as before and walking with another man around the 

corner from his home. In response to the officers' request, the 

defendant agreed to wait to speak with detectives, who arrived 

shortly thereafter and engaged the defendant in a cordial 

conversation conducted at a normal speaking volume. The 

officers did not pat frisk the defendant (who seemed a little 

nervous, jittery, and excitable), restrain him, display weapons, 

or make any show of authority. During this conversation, the 

defendant said that he had not been in the area of the shooting

but instead had been home for the day. He agreed to have his 

photograph taken and to submit to a gunshot residue test, but he 

declined to be transported to the hospital for Platt to view. 

The defendant ultimately ended the encounter, which lasted 

between eight and ten minutes.

Discussion. The Commonwealth argues that the motion judge 

erred in allowing the defendant's motions to suppress, because

(1) reasonable suspicion justified the initial patfrisk of the 

defendant,10 (2) even if the frisk was unlawful, the mother's 

 

10 Although the Commonwealth argued below that the patfrisk 

did not constitute a seizure of the defendant for constitutional 

purposes, it does not make this argument on appeal.
8

later statements were not fruit of the poisonous tree, and (3)

the motion judge improperly applied the "cat-out-of-the-bag" 

doctrine to the defendant's statements during the third 

encounter. In reviewing the judge's ruling, we accept the 

judge's subsidiary findings unless clearly erroneous, see 

Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 

U.S. 280 (1978), but make an "independent determination on the 

correctness of the judge's 'application of constitutional 

principles to the facts as found,'" Commonwealth v. Haas, 373 

Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), quoting 

Brewer v. Williams, 430 U.S. 387, 403 (1977).

1. First encounter. "[P]olice officers may not escalate a 

consensual encounter into a protective frisk absent a reasonable 

suspicion that an individual has committed, is committing, or is 

about to commit a criminal offense and is armed and dangerous."

Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). "That

suspicion must be grounded in 'specific, articulable facts and 

reasonable inferences [drawn] therefrom' rather than on a 

'hunch.'" Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),

quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). 

"[T]he totality of the facts on which the seizure is based must 

establish 'an individualized suspicion that the person seized by 

the police is the perpetrator' of the crime under 

investigation." Commonwealth v. Meneus, 476 Mass. 231, 235 
9

(2017), quoting Commonwealth v. Warren, 475 Mass. 530, 534 

(2016).

For the reasons that we set out below, we are not persuaded 

by the Commonwealth's argument that the following factors 

provided reasonable suspicion to pat frisk the defendant: (i) 

the "match" between the defendant and the initial broadcast 

description of the shooter, (ii) the defendant's geographic and 

temporal proximity to the location of the shooting, (iii) the 

fact that the defendant frequented the area where the shooting 

occurred, and (iv) the nature of the offense being investigated. 

We examine each of these factors in turn.

First, when the defendant was pat frisked, the description 

of the shooter was nonspecific, consisting only of a black male 

wearing a white T-shirt and khaki pants. A description of a 

perpetrator sought by police "need not be so particularized as 

to fit only a single person, but it cannot be so general that it 

would include a large number of people in the area where the 

stop occurs." Commonwealth v. Depina, 456 Mass. 238, 245-246 

(2010). The description here did not meaningfully narrow the 

range of possible suspects and, thus, did not substantially

contribute to the reasonable suspicion analysis. See Warren, 

475 Mass. at 534-537 (no reasonable suspicion where defendant 

and another individual "matched" description of two black males

wearing dark clothing); Commonwealth v. Cheek, 413 Mass. 492, 
10

496 (1992) (description of suspect as "black male with a black 

3/4 length goose" jacket not sufficiently particularized to 

support reasonable suspicion where defendant was one-half mile 

from the scene of the reported stabbing).

Moreover, to the extent the defendant's "match" to the 

general description had any value, it was largely offset by the

aspects of his appearance tending to exclude him from the 

description: the defendant wore shorts, not pants, and wore a 

shirt with a distinctive unicorn graphic that was not mentioned 

in the initial description. See Meneus, 476 Mass. at 237

(distinctive clothing of defendant not mentioned in description 

of perpetrator detracted from reasonable suspicion analysis). 

"Unless the police were able to fortify the bare-bones

description of the perpetrator[] with other facts probative of 

reasonable suspicion, the defendant was entitled to proceed 

uninhibited" down the street. Warren, 475 Mass. at 536.

Second, the defendant was stopped about one mile away from 

the scene of the crime, and about twenty-five minutes 

afterwards, as was the precise case in Commonwealth v. Warren, 

475 Mass. at 536. As in Warren, which also involved a crime in 

the Roxbury section of Boston, we note that "given the nearly 

thirty-minute time period between [the offense] and the stop

. . . , the suspect[] could have traveled on foot within a two 
11

mile radius of the crime scene." Id. at 536-537.11 Thus, 

although temporal and geographic proximity to the crime can 

contribute to the reasonableness of a stop, see Commonwealth v. 

Doocey, 56 Mass. App. Ct. 550, 554-555 (2002), it was not 

particularly meaningful here. Indeed, Officer Johnson went to 

look for the defendant on Cobden Street because he knew it was 

near the defendant's home, not because it was near the shooting. 

The defendant's presence on a sidewalk right around the corner 

from his home on a spring afternoon cannot be said to add much

to the reasonable suspicion calculus.

In addition, nothing about the defendant's appearance or 

behavior at the time of the stop gave any reason to think that 

he was connected to the crime, fleeing from it, or attempting to 

conceal himself. Contrast Commonwealth v. Johnson, 88 Mass. 

App. Ct. 705, 712 (2015) (defendant standing among trees in 

unlit park that was closed "wearing a hoodie 'tightly' pulled 

around his face"). He did not engage in any suspicious 

behavior, and he "did not make any furtive gestures or reach 

into his pockets in a manner that would suggest that he was 

carrying a weapon." Commonwealth v. Villagran, 477 Mass. 711, 

 

11 Although no map was included in the record on appeal, in 

Warren, the court noted that depending on the direction taken 

from the Roxbury crime scene, various "paths of flight would 

lead to different Boston neighborhoods, Dorchester or Jamaica 

Plain, in different areas of the city." Warren, 475 Mass. at 

537.
12

718 (2017). Instead, he was simply walking on a sidewalk near 

his home.

Third, the fact that the defendant was known by police to 

frequent the area where the crime took place is of only moderate

value where the area in question is a public park about one mile 

from his home. Although the officers knew that the defendant 

visited the park frequently, they had nothing connecting him to 

the crime or to firearms more generally, and "[he] was not known 

to the officers as someone having previously been arrested for 

criminal activity." Commonwealth v. Martin, 457 Mass. 14, 21 

(2010).

Finally, although we acknowledge that "[t]he gravity of the 

crime and the present danger of the circumstances may be 

considered in the reasonable suspicion calculus," Depina, 456 

Mass. at 247, and that where, as here, shots have been recently 

fired, or there is otherwise an imminent threat presented by a 

gun, "there is an edge added to the calculus upon which that 

reasonable suspicion may be determined," Doocey, 56 Mass. App. 

Ct. at 557, the gravity of the crime is not dispositive, see 

Meneus, 476 Mass. at 239, and cannot compensate for the absence

of information connecting the defendant to it.12

 

12 The Commonwealth argues that the motion judge erred in 

finding that shell casings discovered near the crime scene did 

not demonstrate that the weapon used in the shooting "likely 

contained additional unused ammunition." We need not resolve 
13

Thus, the motion judge correctly determined that the 

patfrisk was not supported by reasonable suspicion that the 

defendant had committed, was committing, or was about to commit 

a crime and was armed and dangerous. The motion judge 

accordingly suppressed as fruit of the poisonous tree the 

defendant's statements made immediately after the patfrisk 

during his initial encounter with the police. See Wong Sun, 371 

U.S. at 487-488. The Commonwealth did not argue below, and does 

not now argue on appeal, that the defendant's statements during 

this first encounter were "sufficiently attenuated from the 

underlying illegality [of the patfrisk] so as to be purged from 

its taint."13 Commonwealth v. Damiano, 444 Mass. 444, 454 

(2005). Instead, the Commonwealth argues that the motion judge 

erred in concluding that the mother's statements were also fruit 

of the poisonous tree. We turn to that question next.

2. Second encounter. "Evidence obtained by exploiting 

unlawful police conduct must be suppressed." Commonwealth v. 

Nickerson, 79 Mass. App. Ct. 642, 649 (2011). Nevertheless, 

"[e]vidence obtained subsequent to unlawful police conduct does 

 

the issue because, even assuming without deciding that the 

Commonwealth is correct, our analysis would be unchanged.

13 Accordingly, we do not consider the issue. See 

Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006)

(arguments not raised below urging reversal of trial court's 

ruling are generally not considered on appeal).
14

not automatically become sacred and inaccessible." Commonwealth

v. Fredette, 396 Mass. 455, 459 (1985). Instead, in each case,

we examine "whether, granting establishment of the primary 

illegality, the evidence to which instant objection is made has 

been come at by exploitation of that illegality or instead by 

means sufficiently distinguishable to be purged of the primary 

taint." Wong Sun, 371 U.S. at 488. "To determine whether the 

connection between the evidence and the improper conduct has 

become so attenuated as to dissipate the taint, the facts of 

each case must be examined in light of three factors: the 

temporal proximity of the [unlawful conduct] to the obtaining of 

the evidence; the presence of intervening circumstances; and the 

purpose and flagrancy of the misconduct" (citation and quotation 

omitted). Commonwealth v. Lunden, 87 Mass. App. Ct. 823, 826-

827 (2015). See Commonwealth v. Fredericq, 482 Mass. 70, 81-82 

(2019); Commonwealth v. Johnson, 58 Mass. App. Ct. 12, 14 

(2003). We examine the first two factors "in conjunction with 

each other." Damiano, 444 Mass. at 455. As to the third 

factor, "we ask, first, whether the police performed the illegal 

act for the purpose of obtaining the evidence that the defendant 

seeks to suppress, and second, whether the police knew that 

their actions were illegal but proceeded anyway (flagrancy)." 

Commonwealth v. Long, 476 Mass. 526, 537-538 (2017). With these 
15

general principles in hand, we turn to the specifics of the 

mother's encounter with the police.

Although the record does not reflect the precise amount of 

time that elapsed between the patfrisk and the officers' 

conversation with the mother, it appears to have been quite 

brief. The officers went directly to the defendant's nearby 

home after their conversation with him, and his mother arrived 

at the home shortly after the officers. This temporal proximity 

certainly ties the second encounter to the first, but it alone 

is not dispositive. See, e.g., Johnson, 58 Mass. App. Ct. at 14

(identification "followed closely" upon illegal stop, but taint 

extinguished by intervening circumstances); Commonwealth v. 

Manning, 44 Mass. App. Ct. 695, 698-700 (1998) (taint of illegal 

arrest dissipated despite short time between arrest and taking 

of booking photograph, with no intervening circumstances).

Although the second encounter followed on the temporal and 

geographic heels of the first one, other factors separated them. 

The officers ended their interaction with the defendant before 

beginning the encounter with the mother. The mother was not 

involved in the first encounter. And the officers did not tell 

the mother anything they learned from the first encounter, or 

even say that it had occurred. Contrast Fredericq, 482 Mass. at 

82 (officer used unlawfully obtained information to obtain 

defendant's consent to search). These intervening circumstances 
16

contribute to attenuate any connection between the second 

encounter and the illegal patfrisk. See Commonwealth v. 

Pearson, 90 Mass. App. Ct. 289, 294 (2016) (temporal attenuation 

found where following defendant's arrest and transport to police 

headquarters officers conversed with house owner while securing 

premises). See also Commonwealth v. Gallant, 381 Mass. 465, 

470-471 (1980) (dissipation of taint more likely where 

statements at issue are those of third-party witness whose 

constitutional rights were not violated).

As to the third factor, the defendant has made no showing 

that the purpose of the illegal patfrisk was to obtain the 

statements later made by the mother, and in fact, logic and the 

record would undermine such an argument. The defendant is on 

stronger ground with respect to "flagrancy" in the sense that 

every officer can be presumed to know that reasonable suspicion 

is required to conduct a patfrisk. However, as the motion judge 

reasoned, "the officer's hunch about the defendant being armed, 

although legally insufficient, was not unfounded," because "in 

the immediate aftermath of a deadly shooting, the defendant was 

encountered only about a mile from the scene of the shooting, a 

park he frequented, and [partially] matched the minimal 

description of the shooter." Thus, although there is no "'good 

faith' exception to either the exclusionary rule or the 

attenuation doctrine," Fredericq, 482 Mass. at 84, we do not see 
17

any error in the judge's conclusion that the patfrisk, although

not supported by reasonable suspicion, was not flagrant 

misconduct in the aftermath of a fatal shooting. "In sum, the 

third factor of the analysis . . . , which is especially 

significant because it is tied to the purpose underlying the 

exclusionary rule, does not favor suppression of the evidence." 

Commonwealth v. Suters, 90 Mass. App. Ct. 449, 460 (2016).

Although "the exclusionary rule should be invoked with much 

greater reluctance where the claim [as here] is based on a 

causal relationship between a constitutional violation and the 

discovery of a live witness than when a similar claim is 

advanced to support suppression of an inanimate object," 

Commonwealth v. Caso, 377 Mass. 236, 244 (1979), quoting United 

States v. Ceccolini, 435 U.S. 268, 280 (1978), the defendant

contends that his mother was "coerced into [providing a 

statement] by police exploitation of illegal acts." Caso, supra

at 242. In general, "a truly voluntary decision by a witness to 

testify should not be overridden unless the extreme 

circumstances of a particular case require the suppression of 

the testimony as a deterrent to further resort to the unlawful 

conduct which resulted in the discovery of the witness." Id. at 

241.

Here, although the officers concealed from the mother that 

they had already spoken to the defendant, they were otherwise 
18

candid and truthful about the incident they were investigating 

and its location. The conversation with the mother took place 

just outside her home during the afternoon and did not involve 

any show of police authority, threats, confrontations, or 

promises. Nor did the police imply or suggest that the mother 

had any criminal liability or fault. In short, the record is 

essentially devoid of evidence suggesting that the mother's 

statements were not voluntary.

For these reasons, the mother's statements to officers were 

sufficiently distinguishable from the defendant's unlawful pat 

frisk "to be purged of the primary taint." Wong Sun, 371 U.S. 

at 488.

3. Third encounter. The motion judge suppressed the 

defendant's statements made during the third encounter under the 

"cat-out-of-the-bag" theory. That doctrine suppresses 

statements made after a Miranda violation, see Miranda v. 

Arizona, 384 U.S. 436 (1966), because a defendant may believe 

that, "after a prior coerced statement, his effort to withhold 

further information would be futile and he [has] nothing to lose 

by repetition or amplification of the earlier statement[]." 

Mahnke, 368 Mass. at 686. We assume for our purposes here --

but expressly do not conclude -- that the defendant's statement 

made during the first encounter was obtained in violation of his
19

Miranda rights; nonetheless, the "cat-out-of-the-bag" doctrine 

does not apply.

The "cat-out-of-the-bag" doctrine does not apply where 

either "(1) after the illegally obtained statement, there was a 

break in the stream of events that sufficiently insulated the 

post-Miranda statement from the tainted one; or (2) the 

illegally obtained statement did not incriminate the defendant, 

or, as it is more colloquially put, the cat was not out of the 

bag." Commonwealth v. Thomas, 469 Mass. 531, 551 (2014), 

quoting Commonwealth v. Prater, 420 Mass. 569, 580 (1995). The 

"focus and ultimate goal" of this analysis is "a determination 

of the voluntariness of the later confession." Thomas, supra, 

quoting Prater, supra at 581.

Here, there was a substantial break in the stream of events 

between the defendant's encounters with officers: one hour 

during which the defendant was not in custody and had no contact 

with police. More importantly, the defendant's initial 

statement was not inculpatory. The statement "did not place him 

at the scene of the crime . . . [and] the fact that the police 

had no evidence contradicting the initial statement when it was 

made negates the possibility that it was inculpatory because it 

evidenced consciousness of guilt." Commonwealth v. Sarourt Nom, 

426 Mass. 152, 156 (1997). Contrast Commonwealth v. Smith, 412 

Mass. 823, 835-836 (1992) (suppression of second statement 
20

required where police knew defendant's initial statement to be 

false when made during interrogation). Accordingly, the motion 

judge erred in excluding the defendant's statements during the 

third encounter based on the "cat-out-of-the-bag" theory.

Alternatively, the defendant argues that the motion judge's 

conclusion may be supported on two other grounds. See 

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate 

court may "affirm a ruling on grounds different from those 

relied on by the motion judge if the correct or preferred basis 

for affirmance is supported by the record and the findings"). 

First, he contends that the third encounter constituted an 

unlawful seizure without reasonable suspicion. But the record 

shows that the officers informed the defendant that detectives 

wanted to speak with him, and he agreed to wait for them. A

"'request to speak with the defendant and ask questions' . . . 

does not rise to the level of a seizure." Commonwealth v. 

Martin, 467 Mass. 291, 303 (2014), quoting Commonwealth v. 

Nestor N., 67 Mass. App. Ct. 225, 228-229 (2006). See 

Commonwealth v. Lopez, 451 Mass. 608, 610, 614 (2008) (officer's 

request, "Can I speak with you?" not seizure); Commonwealth v. 

Barros, 435 Mass. 171, 172, 174 (2001) (officer's statement,

"Hey you . . . I want to speak with you," not seizure); 

Commonwealth v. Rock, 429 Mass. 609, 611-612 (1999) (officer's 

request, "Guys, can I talk to you for a second?" not seizure). 
21

There is no evidence that the tone of any officer involved "was 

aggressive, that [any] officer physically blocked the defendant 

from leaving, or that the officers issued any orders or commands 

to the defendant." Lopez, supra at 612. The defendant was not 

pat frisked or otherwise searched during the conversation, and 

he ended the encounter of his own volition, after refusing the 

officers' request to take him to the hospital for potential 

identification.

Second, the defendant argues that his statements during the

third encounter were the fruit of the initial unlawful patfrisk. 

We are not persuaded. After the patfrisk, the defendant was at 

liberty for one hour, during which time officers obtained new 

reasons to wish to speak with him: Platt's more detailed 

description of the shooter, the mother's statements 

contradicting the defendant, and the resulting inference that 

the defendant's false exculpatory statement during the first 

encounter reflected consciousness of guilt. These intervening 

circumstances sufficiently attenuated the third encounter from 

the first to dissipate any taint.

Conclusion. For these reasons, we reverse so much of the 

amended order as allows suppression of the mother's statements

and the defendant's statements made during his second encounter 

with the police. In all other respects, the amended order is 

affirmed.
22

So ordered.