Opinion
19-P-1012
07-01-2020
COMMONWEALTH v. JAYQUAN JONES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with possession of a firearm in violation of G. L. c. 269, § 10 (a), as a third offense, carrying a loaded firearm in violation of G. L. c. 269, § 10 (n), and possession of ammunition in violation of G. L. c. 269, § 10 (h). The defendant filed a motion to suppress the evidence obtained by Boston police during the stop, search, and arrest of the defendant on November 14, 2017. This motion was denied on July 20, 2018, as was his motion to reconsider that denial on September 13, 2018. The defendant ultimately entered a conditional plea of guilty to carrying a firearm without a license, second offense, in violation of G. L. c. 269, § 10 (a), and carrying a loaded firearm in violation of G. L. c. 269, § 10 (n). Pursuant to Commonwealth v. Gomez, 480 Mass. 240, 252 (2018), he was permitted to plead guilty but reserve his right to pursue the instant appeal from the denial of his motion to suppress, and the denial of his motion for reconsideration of that denial. We affirm.
1. Facts. The relevant facts as found by the motion judge, supplemented by the testimony he explicitly credited, are as follows: On November 14, 2017, Boston Police Sergeant Bissonnette was working a private paid detail at a construction site, directing traffic for the construction company, near 40 River Street in Mattapan. The defendant walked out of the building at 40 River Street, his residence, and began walking down the sidewalk in the direction of Bissonnette. The officer had numerous previous interactions with the defendant, encountering him approximately twenty-five times prior to that date. Bissonnette was aware of two prior arrests of the defendant for unlawful possession of a firearm, in October of 2015 and April of 2016, and had participated in the first arrest. He knew the defendant had been acquitted of the charges arising from the first arrest, and convicted of the charges arising from the second arrest. He was also aware that in 2012, as a juvenile, the defendant had been found guilty of a firearms offense.
The defendant, who again was walking on the sidewalk toward Bissonnette, made eye contact with the officer. Upon making eye contact with Bissonnette, the defendant abruptly turned and headed in the other direction. The defendant wore a sweatshirt with a front pocket by his waist. Bissonnette observed the defendant repeatedly move his right hand toward his waist, near the front pocket of his sweatshirt. Such movements, the officer testified, were consistent with what he believed, based on his training and experience, to be firearm retention checks. Bissonnette testified that these retention checks were "behavioral changes that are associated with someone who carries an unholster[ed] firearm . . . it's an instinctual reaching toward the gun to make sure that it doesn't fall out, or become dislodged." He also saw a cell phone in the defendant's hand.
The defendant walked back toward the steps in front of 40 River Street, stopping on the stoop. Bissonnette followed him for 100 to 150 feet. As Bissonette walked up the stoop, he observed that the defendant's front sweatshirt pocket appeared to be heavily weighted, and he had a cell phone in one of his hands. When Bissonnette reached the defendant, he asked, "[Y]ou wouldn't happen to have [a] gun on you now, would you?"
Appearing nervous, the defendant then immediately reached his right hand, holding his cell phone, into his front pocket. Bissonnette instructed him to keep his hands out of his pockets and the defendant complied, leaving his cell phone in his pocket. Bissonnette then asked the defendant if he "had something on him" to which the defendant responded, "[J]ust some weed" and pulled a jar of what looked like marijuana out of his front sweatshirt pocket, which nonetheless still appeared weighted to the officer. Bissonnette asked the defendant if he had something that the officer would "need to be concerned with," and the defendant again reached into his sweatshirt pocket. Though the tone of the conversation had felt casual to Bissonnette up until that point, he testified that he became concerned for his safety as the defendant reached into his pocket for the third time. Bissonnette said "no," grabbing the defendant's hands, and the defendant turned away from Bissonnette, reaching for his waist. Bissonnette grappled with the defendant and felt what he believed to be a firearm in the defendant's waist area. As they wrestled, the defendant tried to run inside 40 River Street, but a construction worker arrived from the site nearby and blocked his path. Two officers arrived thereafter and arrested the defendant. Upon searching his person, they found two cell phones in the defendant's sweatshirt pocket, and a sock containing a firearm and ammunition looped around the defendant's belt.
2. Discussion. The defendant contends that he was seized when the officer asked him, "[Y]ou wouldn't happen to have a gun on you now, would you?" in front of his residence. We need not decide the precise point at which the defendant was seized, however, because, even assuming without deciding that the defendant is correct that this was the point at which he was seized, the facts known to Bissonnette at that point gave rise to a reasonable suspicion that the defendant was armed and dangerous. Therefore, stopping and pat frisking the defendant for a firearm was, at that point, justified and lawful. Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020) ("a patfrisk is permissible only where an officer has reasonable suspicion that the suspect is armed and dangerous").
In reaching our determination, we consider all the facts and circumstances. These included the defendant's evasive behavior, although, of course, that alone would be insufficient to give rise to reasonable suspicion, see Commonwealth v. Cordero, 477 Mass. 237, 243-244 (2017); the officer's knowledge of the defendant's prior firearms offenses, which he knew had continued even after the defendant was arrested and convicted in 2012; his observation of the defendant's behavior that Bissonnette concluded, based on his experience and training, was consistent with firearm retention checks one might make if one were carrying an unholstered firearm; and the weighted appearance of the defendant's front sweatshirt pocket.
These articulable facts suffice to support reasonable suspicion that the defendant was committing a crime, justifying a stop, see Commonwealth v. Depiero, 473 Mass. 450, 457-458 (2016), and that the defendant was armed and dangerous, justifying a patfrisk. The officer's subjective belief about his own relative safety and the circumstance is irrelevant. Commonwealth v. Jones, 83 Mass. App. Ct. 296, 299 (2013). Nor was Bissonnette required to undertake the patfrisk immediately upon encountering the defendant, rather than asking him some preliminary questions that might have served to confirm or dispel Bissonnette's suspicion. See id. at 299-300.
Based on the foregoing, the motion to suppress and the motion to reconsider were both properly denied.
Judgments affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 1, 2020.