Commonwealth v. McCauleyCommonwealth v. McCauley
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MсCauley was found guilty in a District Court on July 1, 1980, of unlawfully carrying on his person a .22 caliber semi-automatic pistol.
About 11:55 p.m. on April 21, 1980, two Somerville police officers were in a cruisеr near Teele Square. They received word to call the station by telephone. They did so. The dispatching officer told them (a) that a white malе,
The officers went to the café and soon picked McCauley (from thirty to fifty patrons present) as fitting the description receivеd from the dispatching officer. The officers approached McCauley, asked a female companion to step away, told McCauley to raise his hands above his head, and gave him a “pat down.” As a consequence, the officers took from McCauley’s left side a .22 caliber pistol “which had been stuffed in a belt attached to” McCauley’s trousers.
Prior to the “pat down,” McCauley said nothing to the two officers. They did not assert that they had seen the firearm prior to the pat down or that he was acting suspiciously, or that he consented to the pat down. No evidence was offered at the suppression hearing to warrant a finding that the officers were “apprehensive of harm at the time of the” pat down. No guns were drаwn. The judge allowed the motion to suppress. The Commonwealth sought interlocutory review.
The Commonwealth relies on
Terry
v.
Ohio,
392 U.S. 1 (1968), and cases which follow it as justifying the brief inquiry and pat down. That reliance is proper. These officers on patrol in a cruiser had received word from their dispatcher that an armed man, described in considerable detail, was present in the café just before midnight. He had dropped his gun at least twice. The dispatcher had to act on an anonymous telephone report. The hour and the place gave reason for suspicion that the suspect had been drinking in the café. The account of dropping a pistol strongly suggested carelessness with firearms and perhaps even intoxication. The officers had no time to deliberate and promptly
The facts do not as strongly support the officer’s action as those in Terry v. Ohio, 392 U.S. 1, and Adams v. Williams, 407 U.S. 143 (1972), but we think that the officers’ prompt, restrained, threshold search was justified by the hour, the location of the inquiry, the risks to other patrons, and the specificity of the anonymous report in describing Mc-Cauley. The “specificity of the information supplied” may be relevant in determining an informant’s credibility. See Commonwealth v. Fleurant, 2 Mass. App. Ct. 250, 253 (1974); State ex rel. H.B., Juvenile, 75 N.J. 243, 248-249 (1977).
The case seems to us much closer to Commonwealth v. Anderson, 366 Mass. 394, 397-399 (1974), than to Commonwealth v. Antobenedetto, 366 Mass. 51, 55-56 (1974). This search did not go beyond what was “minimally necessary to learn whether . . . [McCauley was] armed and to disarm him once the weapon [was] discovered.” Commonwealth v. Silva, 366 Mass. 402, 408 (1974).
“The touchstone of . . . analysis [оf an inquiry or search] under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security’ [citing Terry v. Ohio, 392 U.S. at 19], Reasonableness, of course, depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’” Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977). Here the police officers, in our opinion, probably could not have done other than substantially what they did and still have complied with their public duty.
The record in this case does not show that anything was known about the identity of the informant, nor does it suggest that the defendant was known to the police in advance of the pat down. The anonymous report did give the policemen sound ground to fear the defendant to be armed and
No case in this troublesome area of threshold searches is precisely like any other case and very slight indicia confirming suspicion have often been relied оn to support sensible police conduct.. Even in the absence of such slight indicia, the police sometimes must take prompt and effectivе action. Decisions generally supporting these officers’ prompt, and only moderately intrusive action, in a great variety of circumstancеs, include
Commonwealth
v.
Ballou,
350 Mass. 751 (1966), cert. denied, 385 U.S. 1031 (1967);
United States
v.
Gorin,
564 F.2d 159, 160-161 (4th Cir. 1977), cert. denied, 434 U.S. 1080 (1978);
United States
v.
Sierra-Hernandez,
581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936 (1978, direct presence of informant);
United States
v.
Mireles,
583 F.2d 1115, 1117 (10th Cir.), cert. denied, 439 U.S. 936 (1978);
Hetland
v.
State,
387 So.2d 963 (Fla. 1980);
In re Boykin,
39 Ill. 2d 617, 618-619 (1968);
State
v.
Jernigan, 377
So.2d 1222, 1224-1225 (La. 1979), cert. denied, 446 U.S. 958 (1980, dealing with a situation similar to the present case described as presenting “an immediate danger to the public . . . aggravated by its occurrence in an occupied alcoholic beverage outlet”);
State ex. rel. H.B., Juvenile,
75 N.J. at 248-252. See
People
v.
Taggart,
20 N.Y.2d 335, 337-340 (1967), modified, 21 N.Y.2d 729, appeal dismissed, 392 U.S. 667 (1968), where Judge Breitel described the officers’ dilemma (at 339-340): “There are exigencies affecting life, limb, or grave property damage in which the police receive information of crime, not sufficient to establish probablе cause for arrest and incidental search, and yet which, to any reasonable man, demand the taking of police action to prevent sеrious harm. In such cases it is not enough to say that nothing should be done,
Three very recent cases are plainly distinguishable. These officers, because of the information received from the dispatching оfficer, had at least “a reasonable suspicion, based on objective facts, that” McCauley was “involved in criminal activity” (Brown v. Texas, 443 U.S. 47, 51 [1979]), that is, the possession of a pistol, in circumstances which might easily prove to be dangerous to others. Compare and contrast Brown v. Texas, 443 U.S. at 51-52. Compare also Delaware v. Prouse, 440 U.S. 648, 658-663 (1979); Reid v. Georgia, 448 U.S. 438, 440 (1980).
The order suppressing the pistol as evidence is reversed. The case is remanded to the District Court for further proceedings.
So ordered.