Opinion
10-P-600
12-05-2011
COMMONWEALTH v. ALEM A., juvenile.
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
The juvenile appeals from an adjudication of delinquency for carrying a dangerous weapon in violation of G. L. c. 269, § 10(b), entered in the Juvenile Court. He argues that the statute violates his right to bear arms under the Second Amendment to the United States Constitution and that the motion judge erroneously denied his motion to suppress. We affirm.
Background. Around 1:20 A. M. on February 23, 2008, Medford police Officer Mike Pellegrino was on routine patrol when he came upon three people standing in the street. It had just snowed, the streets had just been plowed, and it was extremely cold. Pellegrino approached the three individuals in his cruiser and made a general inquiry about what they were doing. He asked the juvenile how old he was, and the juvenile stated that he was sixteen.
The facts are taken from the motion judge's findings on the motion to suppress, which the juvenile does not challenge.
The three individuals were the juvenile, the juvenile's then-girlfriend (also a juvenile), and Stanley Mathurin.
Pellegrino exited his cruiser, approached the three individuals, and asked them more general questions. Pellegrino noticed a strong odor of alcohol emanating from the juvenile's breath and became concerned because of his age. Pellegrino pat frisked the juvenile, found nothing, and told the juvenile to call a parent to come and get him. The juvenile called his older brother David, who arrived shortly thereafter. David and the juvenile were told that they were free to leave.
After determining that Mathurin was an adult, Pellegrino told Mathurin he was free to leave and he did so.
Medford police Officer Guy Champa arrived on the scene around this time.
David was an adult and was 'well known' to Pellegrino and Champa.
Pellegrino also decided to place the juvenile's girlfriend in parental custody. She called her mother, who agreed to meet Pellegrino at the Medford police station. After hearing that his girlfriend would be taken to the police station, the juvenile became hostile and defiant. He refused to leave and was raising his arms, moving around, swaying from side to side, swearing, and yelling. He took a step toward Pellegrino, which Pellegrino perceived as 'aggressive.' Pellegrino grabbed the juvenile and guided him backwards. As they were moving, Pellegrino heard an object hit the ground near his feet. He placed the juvenile against his cruiser and went back to retrieve the object, a large, double-edged knife. Pellegrino asked why the juvenile was carrying such a large knife and the juvenile stated that it was for protection. He was then taken into protective custody.
The juvenile's girlfriend was also sixteen, although the officers believed her to be fourteen or fifteen at the time.
The decision to charge the juvenile with carrying a dangerous weapon was made while the juvenile was at the police station.
Discussion. Second Amendment. The juvenile's constitutional challenge requires little discussion. Nothing in the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), supports his defendant's argument that G. L. c. 269, § 10(b), infringes upon an individual's Second Amendment right to keep and bear arms. That right 'extends only to certain types of weapons,' id. at 623, and does not protect 'the carrying of dangerous and unusual weapons.' Id. at 626 (citation omitted). General Laws c. 269, § 10, prohibits carrying dangerous weapons, including 'any knife having a double-edged blade.' G. L. c. 269, § 10(b). See Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 575 (2002) (jury's finding that double-edged knives 'constitute[ ] a dangerous weapon was warranted and requires no discussion '). Therefore, the juvenile's conduct is not protected by the Second Amendment.
The Second Amendment is incorporated to the States through the Fourteenth Amendment. McDonald v. Chicago, 120 S. Ct. 3020, 3050 (2010).
Motion to suppress. The juvenile also challenges the judge's denial of his motion to suppress. While he concedes, as he must, that Pellegrino's initial questioning presents no constitutional issue, see Commonwealth v. Murdough, 428 Mass. 760, 763 (1999), the juvenile argues that Pellegrino's initial patfrisk violated the Fourth Amendment to the United States Constitution because he had no reason to consider the juvenile armed and dangerous. Regardless of the propriety of the initial patfrisk, the juvenile was thereafter told he was free to leave. Thus, he was not 'seized' such that the Fourth Amendment was implicated. See Commonwealth v. Gomes, 453 Mass. 506, 510 (2009) ('A person is seized by the police only when, in light of the surrounding circumstances, a reasonable person in the situation would not feel free to leave').
The seizure of the knife did not result from the patfrisk, so the propriety of the patfrisk has no bearing on its admissibility.
While the juvenile also argues that the knife should have been suppressed because it was discovered pursuant to an unlawful arrest, he does not challenge the judge's finding that Pellegrino placed him in protective custody and not under arrest. That finding is supported by the record; therefore, Pellegrino was entitled to seize the knife. See Commonwealth v. Santana, 420 Mass. 205, 211 (1995), quoting from Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) ('Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant').
Adjudication of delinquency affirmed.
By the Court (Green, Hanlon & Carhart, JJ.),