Opinion
10-P-1990
05-10-2012
COMMONWEALTH v. HENRY RODRIGUEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was found guilty of unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a loaded firearm, and resisting arrest. On appeal, the defendant argues that his motion to suppress the firearm should have been allowed, and that his conviction of unlawful possession of ammunition was duplicative of his conviction of unlawful possession of a loaded firearm. We agree on the latter point and vacate the conviction of unlawful possession of ammunition. The remaining convictions are affirmed.
The conviction of resisting arrest was placed on file and is not before us.
1. Motion to suppress. The propriety of the denial of the motion to suppress turns on whether the police engaged in a permissible routine inquiry or in an investigative stop of the defendant in violation of the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. DePeiza, 449 Mass. 367, 370 (2007); Commonwealth v. Kitchings, 40 Mass. App. Ct. 591, 595 (1996). 'When reviewing motions to suppress, we accept the judge's findings of fact unless clearly erroneous, but independently review her conclusions of law.' Commonwealth v. Charles, 81 Mass. App. Ct. 901, 901 (2012). The implied findings and supplemental findings of the motion judge are unfortunately sparse, but the denial of the motion indicates that the judge credited the essential testimony of Officer Curtis, the sole witness who testified. The Framingham police department received a report at approximately 11:00 P. M. of a 'possible fight' in a brown Toyota Corolla automobile at a nearby Burger King. When the police arrived they saw a car matching the description and license plate parked some forty to fifty feet away in the adjacent parking lot of the Metro West Regional Transit Authority, which was closed for business at that hour. One officer pulled his cruiser behind the Corolla and the other officer parked his vehicle to one side. The first officer turned on a searchlight and the officers approached the car, one on each side. According to the supplemental findings of the judge, the Corolla's movement was impeded, but it was not totally blocked in by the cruisers. An officer asked the two men in the car if they were okay and if there had been any problems. He then asked for identification, which the defendant agreed to provide. As the defendant reached for his wallet, the officer saw a firearm just under his thigh, with the barrel pointed toward the dashboard. The officer immediately grabbed the defendant by the arm and seized the gun. The defendant was then ordered from the car and placed under arrest.
At the hearing on the motion to suppress the Commonwealth argued that the police were engaged in a community caretaking function when they approached the defendant's car. On appeal, the Commonwealth's theory is that the police were making an investigative inquiry, and no stop in the constitutional sense occurred until the police saw that the defendant was sitting on a weapon. See Commonwealth v. Va Meng Jo, 425 Mass. 99, 102 (1997); Commonwealth v. Colon, 81 Mass. App. Ct. 8, 21 n.13 (2011) (appellate court may affirm ruling on grounds different from those argued below).
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A stop in the constitutional sense occurs when a vehicle is blocked in place, such that a reasonable person would not feel free to leave. See Commonwealth v. King, 389 Mass. 233, 241 (1983); Commonwealth v. Sanderson, 398 Mass. 761, 766-767 (1986); Commonwealth v. Helme, 399 Mass. 298, 300 (1987); Commonwealth v. Thompson, 427 Mass. 729, 733 (1998); Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 286 n.1 (2003). Here the judge found that the vehicle in which the defendant was a passenger was not totally blocked in, and he denied the motion.
Until the moment when the officer saw the gun, there was no show of authority that would have suggested that the defendant was not free to leave. The officers did not engage in any threatening behavior or aggressive questioning, and the use of white lights to illuminate a darkened parking lot does not constitute a stop in the constitutional sense. See Commonwealth v. Clark, 452 Mass. 1022 (2008). Likewise, the officer's request for identification does not constitute a stop. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, 387- 388, cert. denied, 515 U.S. 1146 (1995); Commonwealth v. Lyles, 453 Mass. 811, 815 (2009). Once the officer saw the firearm he was entitled to seize it in light of reasonable concerns regarding his safety and that of his fellow officer. See Commonwealth v. Almeida, 373 Mass. 266, 271 (1977); Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782 (2005). The motion to suppress was properly denied.
The defendant now argues, in the alternative and for the first time on appeal, that mere possession of a weapon does not constitute probable cause to arrest, see Commonwealth v. Edwards, 71 Mass. App. Ct. 716, 720 (2008), and that counsel was ineffective for failing to seek suppression of the firearm on this ground as well. The firearm was properly seized for the reasons stated above. We therefore need not reach the question of probable cause to arrest.
2. Duplicative convictions. The Commonwealth has conceded that the illegal possession of ammunition under G. L. c. 269, § 10(h), is a lesser included offense of illegally carrying a loaded firearm under G. L. c. 269, § 10(n), where, as here, the only ammunition in question was in the loaded firearm. See Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011); Commonwealth v. Charles, 81 Mass. App. Ct. at 902. The judgment on the lesser included offense of unlawful possession of ammunition is accordingly vacated, the finding is set aside, and that count of the complaint shall be dismissed. The remaining judgments are affirmed.
So ordered.
By the Court (Grasso, Fecteau & Sullivan, JJ.),