A jury convicted the defendant, Peter Cantelli, of possession of an infernal machine (explosive device), G. L. c. 266, § 102A,
1. The motion to suppress, a. Background. Prior to trial, the defendant moved to suppress the guns and explosive device seized when, according to the defendant, the police illegally entered his apartment on March 17, 2008. Police were at the defendant’s apartment to assist and protect a constable, who had a civil summons and a civil restraining order to serve on the defendant, and maintenance personnel, who were assigned to shut off the gas to the defendant’s stove pursuant to the civil
The motion judge concluded that the defendant’s behavior when the police knocked on his door provided them with a reasonable suspicion that he had a gun in his possession and posed a danger to the safety of the police and the civilians who had accompanied the police to the apartment. The motion judge further concluded that the defendant’s behavior justified the “initial intrusion of grabbing the defendant’s hands” and seizing his person. The motion judge ruled that “[i]t was only after this lawful seizure of the defendant that the police made certain plain view observations of weapons which they reasonably believed to be [improperly stored]” as well as the explosive device.
We affirm the denial of the motion to suppress, but on different grounds. See Commonwealth v. Va Meng Joe,
To fully understand the circumstances confronting the police on March 17, 2008, it is necessary to consider events leading to their encounter with the defendant.
On Sunday, March 16, 2008, Calvin Gil, a maintenance employee at Avalon Ledges apartments (Avalon Ledges or complex), was called to the defendant’s apartment in that complex to determine if it was the source of a gas smell in the building.
At about 11:30 a.m., Officer Dawn Larkin and Sergeants Wayne Barrows and Marie Farrell arrived.
The defendant was angry and repeatedly told them to get out of his apartment and not to touch anything. After about ten to twenty minutes, Coyne determined that the gas had dissipated and that the air quality was safe. Coyne asked the defendant “what the heck is going on here” and he replied that “he was moving furniture around and . . . must have hit the burner part, and then he went to bed.” No one who entered the apartment
Once outside the apartment, Officer Larkin and Sergeant Farrell discussed the situation. Larkin told Farrell that she would file a “police report for officer safety” to ensure that other police officers would use caution if they had to return to the unit. Sergeant Farrell indicated that she would ask management to replace the defendant’s gas stove with an electric unit.
When Jill Hopkins, the senior community manager at Avalon Ledges, returned to work on Monday, March 17, 2008, the maintenance manager asked her to call Sergeant Farrell about the incident the previous day. Farrell explained what had occurred and told Hopkins that she “need[ed] to do something about this,” particularly given that this was not the first incident. Hopkins was also informed by the police that they had had another encounter with the defendant, about a month earlier, during which the police were concerned about his behavior.
Specifically, on February 14, 2008, the defendant had a motor vehicle accident to which the police and emergency medical technicians responded. The defendant struggled with the emergency personnel until they were able to safely remove him from the vehicle. The defendant was carrying a firearm, as well as ammunition. When the police asked him for the weapon while they ascertained what had occurred, the defendant refused and clamped down hard on his right elbow in an effort to block the officers’ access to his right front jacket pocket. The police had to tackle him to the ground to wrest it away from him. The responding officer reported that the defendant was “as strong as a bull.”
After talking with Sergeant Farrell on March 17, Hopkins
Avalon Ledges’s attorney filed a complaint in Superior Court and requested emergency relief pending a hearing on its request for a preliminary injunction. A judge issued a temporary restraining order that day, and scheduled a hearing three days later for a preliminary injunction. The restraining order commanded the defendant “to allow management and/or its agents to: enter [his apartment] for the purpose of immediately shutting of[f] the gas to the stove.” This order and the “stack” of other court documents that were to be served on the defendant were turned over to Hopkins.
Hopkins called the constable, Gary Dunham, Jr., who arrived at the complex at about 4:30 p.m. to serve the court documents. Dunham’s boss had told him that the emergency shut off notice had to be served in hand. Hopkins called the police to protect the constable as well as maintenance personnel who were assigned to shut off the gas to the stove inside the apartment. Sergeant John Burke and at least two other officers arrived at the management office. They discussed what had to be done, the types of weapons the defendant would likely have in the apartment (which, based on a review of the defendant’s gun licenses on file in the police department, included a machine gun), and a strategy regarding their approach. The police initially tried subterfuge to get the defendant out of his apartment. They parked an unmarked vehicle in his handicap parking space, hoping that he would come outside to complain as he had done in the past. When this did not work, Sergeant Burke asked Hopkins if this was something that could wait until the defendant left his apartment on his own accord. Hopkins replied that it could not wait because the defendant “kc[pt] filling [his] apartment with gas” and did not go out much.
Sergeant Burke could see only one of the defendant’s hands holding the door. Burke asked to see the defendant’s other hand and did not believe the defendant’s assertion that it was holding the door, because Burke felt the defendant’s foot pressing against the door, not his hand. Rather, Burke suspected from the defendant’s position that he was holding a gun with the other hand. Sergeant Burke continued to urge the defendant to show him the other hand and the defendant finally complied. At that moment, Burke pressed on the door and grabbed the defendant’s left hand while another officer moved in and grabbed his right hand. A third officer grabbed the weapon that the defendant had in a holster on his right side. The gun was loaded and in a position “ready to be fired.” Burke tried to handcuff the defendant, but he resisted. Burke “kept telling him it’s only for our safety, it’s only for our safety, let us handcuff you.” The defendant continued to resist. Burke told him they had a court order. Finally, Burke was able to handcuff the defendant and seat him in a nearby wheelchair.
Directly behind the wheelchair were cases of water jugs, and Burke noticed a “loaded, unsecured” firearm on top of those cases. Looking straight back into the apartment, Burke saw
Once the weapons closest to the defendant were secured, the constable served the defendant, placing the documents on a table next to him and showing him where they were. Calvin Gil entered the apartment, disconnected the gas to the stove, and left. The defendant was arrested for improper storage of firearms and was removed from the apartment.
Sergeant Burke, who by his own account did not know how to make the weapons completely safe, summoned Officer Ficarra, a certified firearms instructor with the Weymouth police department, to do so. While performing this task, Ficarra observed a partially open backpack in the living room and inside he recognized what he believed to be a bomb. The apartment building was evacuated and the State police bomb disposal squad was called.
b. Discussion. The defendant argues, largely based on Commonwealth v. Narcisse,
The motion judge relied primarily on the second prong of Terry (see note 8, supra), concluding that the police had a reasonable suspicion in the circumstances presented here that the defendant had a firearm and posed a threat to the police and civilians who were at his door, and that the police did not have a less intrusive means available to ensure their safety and the safety of the civilians with them.8
The police encounter with the defendant did not begin with the suspicion of criminal activity but with an emergency court order that had been obtained in a civil action. Of course, the Fourth Amendment and art. 14 are not limited to criminal investigations, but are applicable in all situations involving a governmental intrusion. See Camara v. Municipal Ct.,
In circumstances of emergency or where the police are exercising their community caretaking functions, however, police may enter premises or make a seizure without a warrant or probable
Here, the police were confronted with an emergency similar to a burning building. The day before their entry, “explosive levels” of gas had filled the defendant’s apartment because he had left the stove burner on. Whether the defendant turned the burner on accidentally or purposefully, the risk created by the defendant’s proximity to the gas stove was identical. Regardless of whether the defendant bumped one of the knobs, accidentally turning it on, as he claimed, his subsequent inability to recognize
When this situation was presented to management, supplemented with additional information that there had been a previous similar incident and that the defendant had recently had a physical altercation with police when they tried to secure his handgun upon responding to his motor vehicle accident, the attorney for Avalon Ledges sought immediate relief from the court to have the gas turned off. The attorney for the complex recognized what the defendant denies on appeal, that as long as the defendant could freely access the gas to the stove in his apartment, the risk of danger was enormous and the defendant’s ongoing defiant behavior only heightened that risk.
The attorney for the complex filed a civil complaint and requested a temporary restraining order pursuant to Mass.R.Civ.P. 65(a),
Viewing the court order together with the circumstances underlying the order, an emergency of sufficient proportions was presented to render a warrantless entry reasonable. The emergency exception “applies when the purpose of the police [action] is
Once at the door, the evidence that in response to their knocking the police heard the defendant walking from the front to the rear of the apartment and back to the front door, in conjunction with knowledge of a history of defiant behavior and his possession of firearms, created a reasonable suspicion that when the defendant finally cracked open the door two inches, he was armed. In these circumstances, it was reasonable for the police to seize the defendant, secure him with handcuffs, and seat him in the nearby wheelchair until the purpose for their visit could be accomplished. See Commonwealth v. Young,
Thus, under the plain view doctrine, the firearms and explosive device were lawfully seized. See Commonwealth v. Santana,
We pause to note that there is no merit to the defendant’s contention that his exercise of his Second Amendment right to keep and bear arms was the catalyst for police action in this case or that those rights protected his conduct in this case. The facts establish that the police were acting in circumstances that left them with virtually no discretion but to assist those who were required to enter the apartment. The defendant’s response to the police knocking on his door and his behavior upon cracking open the door raised a reasonable suspicion that he had armed himself with a weapon and that he was prepared to use that weapon. See Commonwealth v. Haskell,
2. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to show that the explosive device was “primed,” meaning capable of detonation, or that he improperly stored the firearms. As the evidence at trial was substantially similar to the facts established at the motion to suppress hearing, we need not repeat those facts here. We supplement that evidence with the following additional facts established at trial, in the light most favorable to the Commonwealth and focusing on evidence relevant to the defendant’s specific attack on particular elements of the Commonwealth’s case.
a. The explosive device. When the defendant was removed from the apartment, Officer Ficarra was called to the scene because of his special expertise with firearms, for the purpose of “mak[ing the firearms] safe.” After Ficarra had secured at least seven firearms, he returned to the living room, where he saw five rifle cases on the floor and, after examining them, found some loaded magazines. Near these cases, Ficarra noticed a partially open backpack, in which he saw a gray metal container with a rag and a lengthy coil of hobby fuse on top. Alarmed by the possibility that the object was an explosive device, Ficarra lifted the rag from the top of the can and saw the fuse going inside the can. He immediately reported that he had found a bomb and had everyone, including tenants in other units, evacuate the apartment building. Ficarra held the bag open for a police photographer to take a picture of the device. The police waited outside.
Trooper Scott Fahey, a certified bomb technician with extensive experience in explosive devices, arrived at about 8:00 p.m.
Once the explosive device had been removed, Sergeant Burke went into the apartment and picked up the defendant’s court documents because he would need them for his report, as well as for the defendant, who Burke anticipated would not likely be returning to the apartment in the immediate future. Burke also noticed something that looked like a manuscript. Part of that manuscript read, “I have explosives, booby traps, fuse igniters, . . . IED explosives. [T]hey have been placed in a 100-mile radius. ... I am ready to die. ... If the following people [including, among others, Jill Hopkins] are [not] delivered to me . . . everybody dies.”
Meanwhile, the explosive device was transported by the bomb squad in a sand-filled dump truck to an area where it could be safely “disrupted.” There, the cap was separated from the canister and Trooper Fahey testified that he looked inside and saw two one-pound cans of “Go-Ex,” a type of gunpowder referred to as “black powder,” and the hobby fuse going into the interior of each can. Fahey gave an opinion that, based on his training and experience, the device was an improvised explosive device. He explained that the hobby fuse provided the means by which the device could be initiated, causing the explosive black powder to ignite within the two small cans that were contained in the larger canister. By igniting the black powder in a container, a deadly explosion would result and the effects of that explosion would have been significantly exacerbated by the inclusion of shrapnel in the form of the sheet rock screws.
The testimony of both Trooper Fahey and Officer Ficarra
b. Improper storage. The evidence was sufficient to sustain the charges of improper storage under G. L. c. 140, § 131L(a) (statute).
“[A] firearm is within the ‘control’ of its owner . . . only when that person has it sufficiently nearby to prevent immediately its unauthorized use” (emphasis supplied). Commonwealth v. Patterson,
Here, when viewed in the light most favorable to the Commonwealth, a rational trier of fact could conclude beyond a reasonable doubt that neither the gun leaning against the outside bedroom wall, on the opposite side of the living room from the front door, nor the gun on the bedroom floor, yet further away from the front door, was within the immediate reach of the defendant. Commonwealth v. Latimore,
3. Second Amendment. There is no merit to the defendant’s argument that the statute’s requirement of “control,” as applied in these circumstances, infringed on his constitutionally protected right of self-defense. The defendant was not charged with any offense related to carrying a loaded firearm in a holster on his person when he answered the door, and he was not convicted of any crime related to the second loaded firearm that was immediately behind him. Thus, he was clearly able to protect himself, in stark contrast to the requirement, declared unconstitutional in District of Columbia v. Heller,
By the time the police arrived on the afternoon of March 17, after the inspection notice had been delivered to the defendant earlier in the day, at least three loaded firearms had been strategically placed in the apartment such that the defendant could retreat from the front door to his bedroom, with enough firepower
4. Jury instruction. Finally, the defendant argues that the judge should not have instructed the jury that the police had lawfully entered the defendant’s apartment because the instruction had the effect of improperly vouching for the credibility of the police.
Order denying motion to suppress affirmed.
Judgments affirmed.
Notes
An “infernal machine” for purposes of the statute is a piece of equipment assembled from more than one part. Commonwealth v. Carter,
The defendant was convicted of improper storage of a “Century Arms rifle” that was leaning against the outside of his bedroom wall, and a “Colt” semiautomatic weapon that was on his bedroom floor. He was acquitted on the two charges related to the “Browning” firearm that was on top of a stack of cases of water, and a “pen gun” that was in his bedroom closet.
The motion judge concluded that the Commonwealth could not rely on the civil summons and restraining order as justification for the police entry into and search of the defendant’s apartment because they had not informed the defendant of the court order prior to seeking entry. The Commonwealth did not make such an argument, and we do not consider whether this conclusion is correct.
The transcript initially indicates that Larkin agreed that she was dispatched to the apartment at “1 o’clock in the morning.” Because the other evidence uniformly reflects that it was 11:00 a.m., it appears this notation is a transcription error. In addition, the transcript first reflects that Sergeant Barrows responded to the scene with Larkin, but thereafter refers to Sergeant Farrell’s additional presence.
Hopkins, among others, testified that the defendant had some disability to the extent that he at times used crutches, a wheelchair, and oxygen, and he had a handicap parking placard.
In the apartment there were apparently two wheelchairs that the defendant used, although he was also able to walk on his own, at least some if not most of the time.
In his testimony, the officer described the process involved in securing the weapons.
The first prong of Terry requires that, in order to justify an investigatory stop, police must have a reasonable suspicion that a person is committing or has committed a criminal offense. The second prong of Terry requires that, to proceed from an investigatory stop to a frisk, police must reasonably suspect that the person is armed and dangerous. Commonwealth v. Narcisse,
Although we affirm the denial of the motion to suppress on other grounds (see discussion, infra), we note that such a conclusion was warranted by the facts and the law. See Commonwealth v. Narcisse,
The motion judge found that the police were engaged in a community caretaking function, and acknowledged that “on the previous day an emergency may well have existed,” but concluded that “on March 17, 2008, no similar emergency was present.” On this point, as we shall discuss, we disagree.
By acknowledging that the court order added a level of protection from an arbitrary intrusion, we do not suggest that without such an order, the entry would be improper in these circumstances.
The defendant did not challenge the seizure of this document.
General Laws c. 140, § 131L(a), inserted by St. 1998, c. 180, § 47, provides, in pertinent part:
“It shall be unlawful to store or keep any firearm ... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device .... For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner ...” (emphasis supplied).
The defendant concedes, at least implicitly, that neither of the two weapons in question were locked or secured, focusing solely on the claim that both weapons were under his control. The defendant also does not argue that the apartment was a “locked container.” See generally Commonwealth v. Parzick,
The judge instructed the jury that the pertinent time for determining whether the firearms were within the defendant’s control was “just before the police entered the apartment.”
The defendant did not object to this instruction before the jury retired to deliberate as required by Mass.R.Crim.P. 24(b),