Opinion
14-P-662
03-19-2015
COMMONWEALTH v. RUBEN TORRES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After holding an evidentiary hearing and denying the defendant's motion to suppress evidence in written findings and rulings, at a nonevidentiary hearing on the defendant's motion for reconsideration, the motion judge reversed course and orally granted the motion. The Commonwealth appeals the allowance of the motion to suppress. We reverse.
Background. Responding to an anonymous tip that "three young males were having a gang meeting behind a brick multi-unit building" in Springfield, Trooper Williams conducted surveillance through binoculars from a distance of eighty yards for about fifteen minutes. The meeting took place in a high crime area where the trooper had responded to calls and conducted investigations in the past.
"Trooper Williams observed the male defendant lifting up his shirt and withdrawing an item by making a drawing motion, as if drawing a gun, and was then seen cradling the item to show the other two and then returning it to his waistband." The defendant looked over his shoulder several times as he displayed the object. Based on his observations of how the defendant was handling the item, his training, and his experience, Williams concluded that the defendant possessed a firearm.
Williams then drove his unmarked vehicle to a street corner where the defendant's group and about twenty other people were congregating. A second officer in an unmarked vehicle approached at the same time. When Williams, who was wearing a State police jacket with his badge displayed, opened his door, the defendant immediately started running away. Williams then pursued the defendant on foot. When the defendant appeared to reach for his gun, Williams, assisted by a third officer who blocked the defendant's way with his cruiser, tackled the defendant, dislodging a handgun.
Discussion. In reviewing the disposition of a motion to suppress, we accept the motion judge's findings of fact absent clear error, Commonwealth v. Welch, 420 Mass. 646, 651 (1995), but "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Based on the facts that the motion judge found, we conclude that Williams possessed a reasonable suspicion of criminal activity when he initiated his pursuit of the defendant.
As the parties agree, establishing the precise point when the seizure occurred is essential to the determination of whether the stop was valid. The motion judge found, and we agree, that the seizure occurred after the defendant began to flee and Williams initiated his pursuit. The police "made no show of authority before the defendant commenced his flight." Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 381 (2003). "Following or observing someone without more, such as using a siren or lights, attempting to block or control an individual's path, direction, or speed, or commanding the individual to halt, is not pursuit." Commonwealth v. Sykes, 449 Mass. 308, 313 (2007), quoting from Commonwealth v. Watson, 430 Mass. 725, 731 (2000). Accordingly, seizure of the defendant for constitutional purposes occurred when Trooper Williams began to chase the defendant, see Commonwealth v. Sykes, supra at 314, and we take the defendant's flight into account in our reasonable suspicion calculus.
In reconsidering her original ruling, the motion judge relied primarily on Commonwealth v. Dasilva, 56 Mass. App. Ct. 220 (2002), and decided that although the police had reasonable suspicion that the defendant was carrying a gun, they had no reason to believe he was not lawfully carrying the gun. We disagree. Based on the defendant's furtive glances when he displayed the object to his associates, Williams could reasonably conclude not only that the object was a gun, but also that the defendant's possession of the gun was illicit. See Commonwealth v. Jones-Pannell, 85 Mass. App. Ct. 390, 392 (2014) ("[A]n unlicensed carrier will be less likely to employ a holster and therefore more likely to be adjusting a weapon manually inside his clothes. Another characteristic will be his head movements in multiple directions in an effort to anticipate and avoid detection").
Williams's suspicion was confirmed when the defendant fled merely at the sight of a police officer. "Although such behavior is not enough standing alone to justify a reasonable suspicion, it may be considered along with other factors." Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 44 (2002). Indeed, as the motion judge originally concluded, "The defendant's subsequent flight provides a reasonable inference that the defendant was in possession of this firearm illegally."
The defendant's furtive behavior when he handled his gun, the fact this activity took place in a high crime area where the trooper had conducted previous criminal investigations, and the defendant's flight when the trooper arrived on the scene added up to a reasonable suspicion of criminal activity and justified a threshold inquiry. See Commonwealth v. Sykes, 449 Mass. at 314-315; Commonwealth v. Fisher, 54 Mass. App. Ct. at 44-46; Commonwealth v. Rupp, 57 Mass. App. Ct. at 381-382.
The order allowing the defendant's motion to suppress is reversed.
So ordered.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 19, 2015.