427 Mass. 277 | Mass. | 1998
The defendant was charged in the Holyoke Division of the District Court Department under G. L. c. 269, § 10 (a), with carrying a firearm without having a license to do so. He filed a motion to suppress “evidence seized by the police
1. The judge found the following facts. On March 7, 1994, at 4:30 p.m., Christopher Hopewell, a paramedic employed by the Holyoke Hospital Emergency Medical Services (EMS), stood on High Street in Holyoke after responding to an emergency call, when he saw a car containing four men drive slowly past him. Hopewell noticed that a man in the front passenger seat of the car, subsequently identified as the defendant, was slumped over and holding what Hopewell described as a “foot to two foot long ‘cylinder-ish’ pipe which reflected light.” Hopewell followed the car, and made contact with the dispatcher at the Holyoke police department by radio. Hopewell described the registration number of the car, the number of occupants, and the perception of what he saw, namely, a sawed-off shotgun.
Henry Wielgosz, a Holyoke police officer on cruiser patrol at the time, heard the radio communications between Hopewell
Based on these findings of fact, the judge concluded that, “[wjhen Manuel Alvarado, the defendant, exited the motor vehicle at gun point and [was] searched; he was not free to go and [was] effectively [placed] under arrest.” The judge went on to conclude that the information furnished to the police by Hopewell was not reliable enough to establish probable cause for the police to stop and search the car in which the defendant was riding. Consequently, the judge suppressed both the handgun and the defendant’s statement to DiNapoli as fruits of an illegal search.
In reaching these conclusions, the judge relied on our decision in Commonwealth v. Couture, 407 Mass. 178, cert. denied, 498 U.S. 951 (1990), in which we upheld the suppression of a handgun seized from the defendant’s pickup truck based on information received by the police that the defendant had been seen earlier inside a convenience store with a handgun protrud
2. The issue is whether the police had a constitutionally sufficient basis to stop the car, order the four men out and frisk them for weapons, and then examine the car’s interior for a weapon which had been described as a possible sawed-off shotgun. In Commonwealth v. Alvarado, 423 Mass. 266 (1996), the police received an anonymous tip that several Hispanic men had been seen inside a blue car at a specified address with a handgun wrapped in a towel. The police located and stopped the car with six people inside at the designated address, received permission from the defendant (the driver of the car) to search the car, and found and seized an unlicensed handgun from the car. Id. at 267-268. We considered the situation in Alvarado (where the defendant’s claim was made, as is the case here, under both the Federal and State Constitutions), under the standards developed under art. 14 for an investigatory stop. We described those standards as follows:
“The investigatory stop was justified if the Commonwealth proved that the police had a reasonable*281 suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the blue motor vehicle had committed, was committing, or was about to commit a crime. Commonwealth v. Alvarado, [38 Mass. App. Ct. 650,] 652 [1995], citing Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990), and Commonwealth v. Wren, 391 Mass. 705, 707 (1984). See United States v. Hensley, 469 U.S. 221, 229 (1985); United States v. Cortez, 449 U.S. 411, 417 (1981). In this Commonwealth, under art. 14, the legality of the stop, that is, the existence of reasonable suspicion, is not determined by the imprecise Federal totality of the circumstances standard but rather by application of the principles stated in determining the existence of probable cause in Commonwealth v. Upton, 394 Mass. 363, 373-375 (1985) (reliability of informant and basis of his or her knowledge). Commonwealth v. Lyons, supra. ‘Because the standard is reasonable suspicion father than probable cause, a less rigorous showing in each of these areas is permissible.’ Id. at 19. See Commonwealth v. Willis, 415 Mass. 814, 819 (1993).”
Alvarado, supra at 268-269. We went on to conclude in Alvarado, in reliance on the analysis about information concerning the sighting of a handgun as set forth in Commonwealth v. Couture, supra, that, “[b]ecause the tip [about the handgun] did not disclose any imminent threat to public safety, we are reluctant to relax our established rule that the report of the carrying of a firearm is not, standing alone, a basis for having a reasonable suspicion of criminal activity.” Alvardo, supra at 271.
We apply these standards to the facts found by the judge in this case to determine on our own whether an objectively reasonable police officer would have been warranted in stopping the car in which the defendant was riding and looking for a specific type of weapon. We conclude that the information received by the police justified their conduct because reliable information that someone might be carrying a sawed-off shotgun stands on a much different footing than a report that someone might be carrying a handgun.
A sawed-off shotgun is an extremely lethal weapon which poses “an ominous threat in and [of] itself.” United States v. McKinney, 477 F.2d 1184, 1186 (D.C. Cir. 1973). The weapon has virtually no legitimate use outside, perhaps, of uses by law
While we have no controlling opinion on police investigation of a report about possession of a sawed-off shotgun, the Legislature has taken express cognizance of the highly dangerous nature of a sawed-off shotgun by providing for a sentence of up to life imprisonment for its unlawful possession (or for the unlawful possession of a machine gun). G. L. c. 269, § 10 (c). In Commonwealth v. Ghee, 414 Mass. 313, 320-321 (1993), we held that a sentence of from eighteen to twenty years for unlawful possession of a sawed-off shotgun (consecutive to a life senteúce for murder) was not disproportionate to the crime. In Cepulonis v. Commonwealth, 384 Mass. 495, 499 (1981), appeal dismissed, 455 U.S. 931 (1982), we held that a sentence of from forty to fifty years for the unlawful possession of a
The report received here by the police from Hopewell conformed to constitutional requirements. The information was furnished by a disinterested citizen, who identified himself and relayed his personal observations. See Commonwealth v. Atchue, 393 Mass. 343, 347 (1984); Commonwealth v. Bowden, 379 Mass. 472, 477 (1980). Hopewell’s description of what he had seen (a “foot to two foot long ‘cylinder-ish’ pipe which reflected light”) fit what the police could reasonably believe was the unique appearance of a sawed-off shotgun,
3. The judge concluded that the defendant had been unlawfully arrested when he was ordered out of the stopped car at gunpoint by the police. Based on this conclusion, the judge suppressed not only the handgun, but also the defendant’s answer, in response to Lt. DiNapoli’s question about the presence of a gun, that, “It’s dangerous out there.” This response, while ambiguous, could be considered by a fact finder as an admission by the defendant reflecting his knowledge of the handgun, and, if so viewed, the response furnishes some proof that the defendant possessed the weapon.
The governing standard, as we have explained above, was one of reasonable suspicion under which the police were justified in conducting an investigatory stop of the car and the men in it. The armed show of force by the police in ordering the men out of the stopped car, frisking them for weapons, and then examining the interior of the car for weapons did not necessarily place the men under arrest. In a justified stop, as this was, the police may take reasonable precautions to protect themselves and the public, and these precautions will not turn an investigative inquiry into an arrest so long as the force used by the police is commensurate with the extent of the danger. See Commonwealth v. Willis, 415 Mass. 814, 819-820 (1993). Reliable information that the men may have possessed a sawed-off
To determine the admissibility of the defendant’s statement, it is necessary to know when the defendant was actually placed under arrest or at least in custody, because at that point he would have been entitled to Miranda warnings. See Commonwealth v. Bryant, 390 Mass. 729, 736 (1984). The testimony at the hearing on the motion to suppress did not establish this fact. Lt. DiNapoli testified that the defendant was not under arrest when he responded to DiNapoli’s question. On cross-examination, however, DiNapoli conceded that he asked the defendant about the presence of a gun after the handgun had been seized, and he had focused on the defendant in particular because the defendant had been sitting in the front passenger seat where the handgun had been found.
4. The order allowing the motion to suppress is vacated, and a new order is to be entered denying the motion with respect to the handgun. The case is remanded to the District Court for further proceedings on the motion to suppress with respect to the defendant’s statement, and such other evidentiary issues that may be encompassed within the motion.
So ordered.
The defendant was also charged with the unlawful possession of heroin, G. L. c. 94C, § 34, and the unlawful possession of heroin with intent to manufacture, distribute, or dispense, G. L. c. 94C, § 32. The hearing on the motion to suppress was directed primarily at the seizure of the handgun that is the basis for the charge under G. L. c. 269, § 10 (a). The record does not disclose the circumstances involving the seizure of the heroin. The judge’s ruling on the motion to suppress simply ordered that “the fruits of the illegal search are suppressed.”
The defendant refers to testimony by Hopewell that he told the police dispatcher that he had seen a “possible weapon.” Hopewell also testified that
The defendant in Commonwealth v. Couture, 407 Mass. 178, cert. denied, 498 U.S. 951 (1990), appears not to have raised a claim under art. 14.
See G. L. c. 140, § 121 (“A ‘Sawed-off shotgun’ shall mean any weapon made from a shotgun, whether by alteration, modification or otherwise, if such weapon as modified has one or more barrels less than eighteen inches in length or as modified has an overall length of less than twenty-six inches”).
Hopewell also testified, although the judge did not refer to the testimony in his decision, that the defendant “held it [the perceived sawed-off shotgun] in a — in a position, pre-positioned fashion.”
As we stated recently in Commonwealth v. Morse, ante 117, 123 (1998), the primary consideration in determining whether a person is in custody for the purposes of Miranda warnings is whether a reasonable person in the position of the individual being questioned would not feel free to leave the place of questioning. Evidence that an investigation had begun to focus on the suspect is material only to the extent that the officer’s suspicions influenced the objective perception of the circumstances. Id. at 124.