Opinion
No. 11–P–2065.
2012-11-19
COMMONWEALTH v. Omar BONNER.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of carrying a firearm without a license, possession of ammunition, and carrying a loaded firearm. On appeal, the defendant contends that the motion judge erred in denying his motion to suppress and that the trial judge erred in denying his motion for a required finding of not guilty. We affirm.
The motion judge and the trial judge were the same judge.
Background. After a hearing on the defendant's motion to suppress, the motion judge made findings of fact as follows. On August 9, 2010, Boston police Officers Burrows and Connolly were in an unmarked vehicle in the area of Morton and Harvard Streets. At approximately 11:30 P. M., they observed a motor vehicle operating in excess of the speed limit. In addition, one of the front headlights was out. The officers followed and stopped the vehicle in the area of Wood Avenue and Farrar Avenue. When Officer Burrows approached the vehicle, he recognized the defendant, who was the driver and the sole occupant of the vehicle, from previous encounters he had had with him. The officers knew the defendant associated with gang members. They also knew that within the last six months the defendant's vehicle had been shot at and that he had been present in a car in which another individual had been arrested for a firearm offense. Officer Burrows noticed that the defendant appeared nervous, his hands were shaking, his eyes were bloodshot, and he was breathing heavily. This appearance was much different from the defendant's appearance in the previous interactions that Officer Burrows had had with him. Officer Connolly, using his flashlight to look into the car, noticed a burnt marijuana blunt in the vehicle with the defendant. Officer Connolly asked the defendant if he had been smoking marijuana, and the defendant responded that he had smoked some earlier.
Concerned by the defendant's changed demeanor and prior history with firearms, Officer Burrows asked the defendant to step out of the vehicle in order to conduct a patfrisk. While Officer Burrows started to conduct the patfrisk, Officer Connolly opened the passenger side door in order to make a protective search of the vehicle. He looked into the center console and found a firearm. At the time of the protective search of the vehicle, the defendant was not secured or under arrest, and there was a possibility he might reenter the vehicle. Contrast Arizona v. Gant, 556 U.S. 332, 335, 351 (2009). The motion judge concluded that there was a reasonable basis for the police to believe that the defendant was armed and dangerous and that, therefore, they had a legal basis to pat frisk the defendant and to conduct a protective search of the interior of the vehicle to insure that there were no weapons within the immediate reach of the defendant when he reentered the vehicle.
At trial, the Commonwealth called the defendant's mother, the owner of the car, who testified that she had used the vehicle to go to and from work on August 9, 2010. She also testified that she had allowed her son to use the car at approximately 7 P.M. and that prior to her allowing her son to use the car, no one else had used the car. Finally, she testified that she did not own the gun that was seized from the car, nor did she place a gun in the car on August 9, 2010.
Discussion. On appeal, the defendant does not challenge the basis for the motor vehicle stop, nor does he challenge the propriety of the exit order. Rather, the defendant argues that the police had no right to conduct a protective search of the vehicle because they lacked specific, articulable facts to conclude that the defendant was armed and dangerous. We disagree.
The propriety of a patfrisk is governed by the familiar standard set forth in Terry v. Ohio, 392 U.S. 1, 27 (1968)—that is, under the totality of the circumstances, whether a reasonably prudent person would be justified to conclude that the person is armed and presents a danger to the officer or officers. The conclusion that the person is armed and dangerous must be supported by specific and articulable facts. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Here both officers articulated the specific reasons for their concerns for their safety. The motion judge concluded, and we agree, that the totality of the circumstances confronting the officers supported their safety concerns.
Although we conclude that the police had a legal basis to pat frisk the defendant, the question remains as to whether the protective search of the interior of the vehicle was justified. The motion judge concluded that the protective search was appropriate because the defendant was not in custody and, in the event that field sobriety tests revealed that he was not under the influence of marijuana, he would return to the vehicle, resulting in a potential threat to the officers. See Commonwealth v. Graham, 78 Mass.App.Ct. 127, 129 (2010). Contrast Arizona v. Gant, supra. We agree with her analysis and rule that, under the totality of the circumstances, the protective search of the interior of the vehicle was justified.
The defendant also argues that the trial judge erred by denying his motion for a required finding of not guilty. We disagree. The issue is whether there were sufficient facts presented that would allow the jury to conclude that the defendant possessed the firearm. By applying the Latimore standard, viewing the evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence to support the jury's factual determination that the defendant possessed the firearm. Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979).
Judgments affirmed.