Opinion
No. 12–P–69.
2012-10-15
COMMONWEALTH v. Mario BARROS.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant appeals from his convictions of unlawful possession of a firearm (G.L.c. 269, § 10[ a ] ), second offense, and unlawful possession of a loaded firearm (G.L.c. 269, § 10[ n ] ). On appeal, he argues that the motion judge erred in denying his motion to suppress and that the relevant portions of the firearms statute are unconstitutional. We affirm.
Background. The defendant filed a motion to suppress a pistol found by the police in the third floor hallway of 11 Glendale Street in Boston, as well as certain statements the defendant made to the police. After an evidentiary hearing, the trial judge denied the motion. A review of the judge's detailed findings reveals the following: On August 17, 2009, Detective Anthony Serra and Trooper Walter Foley observed the defendant near 67 Hancock Street. Both officers had had previous interactions with the defendant and he had always been respectful towards the officers, even on occasions when they had arrested him. The officers had a brief conversation with the defendant. Approximately five minutes later, the officers observed four individuals sitting on the front steps of 11 Glendale Street. Serra recognized three of the individuals, including the defendant. Serra knew that none of the three individuals lived at 11 Glendale Street. The officers asked the individuals if they knew anyone who lived at 11 Glendale Street. No one answered. The motion judge went on to explain:
“At the same time, the defendant's eyes widened, he rose to his feet and headed to the front door of the house. Serra observed that his upper body remained rigid and both arms were tight to his torso and did not swing back and forth. The officers were suspicious of his behavior given the casual conversation they had engaged in minutes before. Serra also knew, based on his training and experience, that when an individual is fleeing with a firearm concealed in his waistband, one hand will often remain close to the waistband or one arm will remain tight to the body to keep the firearm secure.
“Concerned that Barros had a firearm, and with the knowledge that he did not live in the house he had just entered, Serra followed Barros into 11 Glendale and up the stairs. [Serra] stopped on the second floor landing and heard footsteps and two momentary pauses. When he reached the third floor, he saw the door to the porch open. He went out and found the defendant standing on the porch out of breath. As Serra approached him, Barros said, ‘What? I didn't have anything.’ Serra arrested Barros for trespassing, and handed him over to Foley, who had arrived by that time.”
After Serra arrested the defendant, Serra returned to the common hallway of the third floor and observed several pairs of shoes in a shoe rack in the hallway. He observed a wooden handle of a firearm sticking out of a work boot. Serra secured the firearm. The defendant later made potentially incriminating statements during the booking process.
In her legal analysis, the motion judge found that the defendant was seized, in the constitutional sense, when he walked away from the officers and Serra followed him.
Discussion. The defendant argues that Serra had no basis to conclude that Barros was trespassing and that, therefore, his statements and the firearm which was found as a result of this illegal arrest must be suppressed. We disagree.
The analysis of the facts in this case centers upon Serra's prior knowledge of the defendant and his observations of the defendant as he walked away from Serra. It is clear from the motion judge's findings that Serra reasonably believed the defendant was carrying a firearm as he entered 11 Glendale Street. This conclusion is amply supported by the evidence. In addition to exhibiting the characteristics of a person carrying a firearm in his waistband, the defendant's demeanor had changed markedly from the previous encounter with the police officers just minutes earlier. Additionally, the defendant's action of entering 11 Glendale Street just after being asked whether any of the individuals lived there gives further support to Serra's reasonable suspicion that the defendant was carrying a firearm. This suspicion justified Serra's pursuit of the defendant in order to detain him briefly and make a threshold inquiry. See Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007).
The defendant's sole argument as to the suppression of the firearm is that Serra's placing the defendant under arrest and securing him in handcuffs constituted an illegal arrest and that, therefore, the gun should have been suppressed. This argument ignores the fact that Serra had a sufficient basis to detain the defendant in order to conduct a Terry stop. The fact that the officer articulated a different reason for the detention of the defendant does not take away from the legal basis for the detention of the defendant. The seizure of the firearm was not the result of what the defendant argues was an unlawful arrest, as Serra observed the firearm in plain view in a place in which he had a right to be. See Commonwealth v. Johnson, 461 Mass. 44, 51 (2011). The defendant had abandoned the firearm, and has no standing to contest its seizure under the plain view exception to the warrant requirement.
At oral argument, the defendant conceded that the common hallway of the apartment house was an area in which the defendant did not have an expectation of privacy.
See Terry v. Ohio, 392 U.S. 1 (1968).
Similarly, even if the detention of the defendant was at first an unlawful arrest, the discovery of the firearm shortly thereafter gave rise to probable cause to arrest. The defendant's statements during booking thus did not flow from the initial detention, and properly were not suppressed. See generally Commonwealth v. Fredette, 396 Mass. 455, 458–459 (1985) (discussing fruit of poisonous tree doctrine and its exceptions).
Finally, the defendant argues that the provisions of the firearms statute that formed the basis for his convictions are invalid under the Second Amendment to the United States Constitution. This argument, which has been rejected by the Supreme Judicial Court, is unavailing. Commonwealth v. Gouse, 461 Mass. 787, 800–802 (2012).
Judgments affirmed.