Thе defendant was charged with carrying a firearm without a license in violation of G. L. c. 269, § 10(c), and possession of a firearm without a firearm identification card in violation of G. L. c. 269, § 10(h).
Facts on motion to suppress. The judge found the following facts
As Detectives Almeida and Delahoy approached the area in which Roman’s Bar is located, Almeida saw a black car with the reported license plate number, albeit a Grand Prix and not a Honda. The Grand Prix was behind five or six other cars stopped at a red light. Delahoy, having driven the unmarked cruiser just past the Grand Prix, circled back and came to a stop next to it. It is undisputed that thе cruiser at first pulled so close to the vehicle that the doors between the two cars could not be opened. The cruiser then repositioned itself, still next to the suspect vehicle. Almeida made eye contact with the back seat occupants of the vehicle, four in number, who began to move furtively, bending down and popping back up several times. Both officers then stepped out of their cruiser; Almeida positionеd himself behind the Grand Prix, where he was able to observe the occupants through the right rear passenger window and rear window.
Officer Gaucher arrived on the scene around this time in a marked cruiser, also with blue lights and sirens on, аnd pulled up behind the Grand Prix. At this point none of the officers had
With the officers so positioned, the passenger in the Grand Prix sitting nearest to the right rear door (later identified as the defendant) opened that door about half way and bent out of the car. Almeida then heard a metallic thud which he identified as steel hitting the pavement. He drew his gun and ordered everyоne in the vehicle to show their hands. The officers retrieved a firearm from under the right side of the car. The defendant was then escorted to the police cruiser, where he was read his Miranda rights. He made statements denying that the gun belonged to him and acknowledged that he did not have a license to carry a gun. Drugs were subsequently found in the Grand Prix after a search.
Discussion. 1. Motion to suppress. “In reviewing the denial of a motion to suppress, we accept the motiоn judge’s subsidiary findings of fact absent clear error,” Commonwealth v. Yesilci-man,
The judge determined that the “stop” of the vehicle did not occur until after the defendant had discarded thе gun and “Almeida yelled at the occupants of the car to stay in the car and keep their hands in view.” We disagree that this was the moment the stop occurred. Although the forward motion of the car was impeded by other traffic stopped at a red light and not by the police, the judge found in this case that “both police cars
In this case, however, we are faced with a variation, namely the fact that the lights and sirens had been activated before the cruisers were in any proximity to the Grand Prix. Thus, under our decisional law, the initial appearance of a cmiser with lights and sirens already activated does not necessarily send a message to stop to one particular car within a general traffic pattern. However, even if what happened here could initially be construed as a use of lights and sirens consistent with a police response to an emergency call somewhere else, it soon became clear that the focus was on the Grand Prix in question. After passing the defendant’s Grand Prix, Delahoy circled back and stopped next to it; indeed the cmiser was so close to the car that Almeida, intending to invеstigate, could not open the door of the cmiser. Delahoy then repositioned the cmiser, still alongside the vehicle, so that Almeida could open his door. By this time Almeida had made eye contact with the car’s back seat occupants and then placed himself behind the car. Delahoy also got out of the cruiser, and Gaucher had pulled up behind the Grand Prix in a marked cmiser, also with blue lights and sirens on. Given these circumstances — with one cmiser to the side of the car, another behind it, and the lights and sirens of the cruisers still activated — a reasonable person would not believe that he or she was free to leave. We conclude, under thеse facts, that a stop had occurred before the defendant opened the door of the car and dropped the gun onto the pavement. We turn, therefore, to examine the justification for the stoр.
In assessing an investigatory stop based on an anonymous tip, “our evaluation of the tip’s indicia of reliability will be focused on the informant’s reliability and his or her basis of knowledge.” Commonwealth v. Costa, supra at 514, quoting from Commonwealth v. Lyons,
Massachusetts law places greater reliability on an informant whose identity is known to police or who is identifiable and therefore places his anonymity at risk. See id. at 515-516. On this record, there is no evidence to support an inference that the caller or callers were known or identifiable to the police by meаns of caller identification, voice recording, or other method. Compare id. at 517. Nevertheless, the Commonwealth may compensate for the inability to provide evidence substantiating the informant’s reliability (and basis of knowledge) with police corroboration of details in the broadcast. See Commonwealth v. Lyons, supra at 19; Commonwealth v. Costa, supra at 515; Commonwealth v. Ancrum,
The calls to the police portrayed an immediate danger to public safety. A man was seen to have a gun in a bar. Shortly thereafter, gunshots were heard in the vicinity. Whether viewed as a report of a crime reasonably inferred to have been provided by a firsthand witness, see id. at 652, or an imminent danger to public safety, see Commonwealth v. Hurd,
“In determining whether an оfficer acts reasonably in initiating a threshold, or investigatory, stop, we view the circumstances as a whole, . . . and consider the ‘specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience.’ ” Commonwealth v. Stoute,
2. Jury instructions. The defendant asserts that a supplemental jury instruction, provided in respоnse to a question asked by the jury on the issue of possession, was error and created a substantial risk of a miscarriage of justice. We do not agree. The judge defined possession as having the firearm under one’s control without repeating the earlier complete charge that included reference to the intent to exercise control. The judge is not required on such an occasion to “repeat all aspeсts of his prior charge.” Commonwealth v. Sellon,
Judgments affirmed.
Notes
The defendant was charged with other crimes on which thе Commonwealth filed a nolie prosequi. See note 3, infra.
We have supplemented the judge’s findings with uncontested evidence from the motion hearing. See Commonwealth v. Costa,
The drugs were suppressed pursuant to the motion to suppress. The Commonwealth elected not to pursue the drug charges. See note 1, supra.