Opinion
11-P-272
03-09-2012
COMMONWEALTH v. GONTRAND GERMAINE.
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
A Superior Court jury convicted the defendant of various offenses stemming from his unlawful possession of a firearm. On appeal, he argues that the motion judge erred in denying his motion to suppress the firearm. He also challenges his convictions on constitutional grounds, claiming that the statutory scheme requiring him to obtain a license to carry a firearm and a firearm identification card to possess ammunition violates the right to bear arms protected by the Second Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. See McDonald v. Chicago, 130 S. Ct. 3020 (2010). We affirm.
The defendant was convicted of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n); possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10(h); and carrying a firearm without a license in violation of G. L. c. 269, § 10(a). The conviction on the charge of possessing ammunition without a firearm identification card was placed on file 'until an appeal has been exhausted or completion of [the] sentence imposed on' the charge of carrying a firearm without a license.
We recite the facts as found by the motion judge. On July 11, 2008, at approximately 1:25 A. M., Boston police Officer Peter Fontanez was socializing at the Boyne Pub, a bar in the Brighton section of Boston, when he observed the defendant, a black male wearing a red shirt, 'flash' a firearm. Fontanez, who was not on duty at the time, called the police station and reported his observations to Officer Michael Bizzozero. A number of officers, including Officer Bizzozero and Officer Michael Lynch, were dispatched to the pub. Officer Lynch was the first officer to enter the bar. He saw the defendant (a black male in a red shirt) standing by the jukebox. When the defendant lifted his arm to drink from a bottle of beer, Officer Lynch noticed a bulge in the defendant's waistband. Officer Lynch circled behind the defendant, grabbed his left arm, and removed a '.380 handgun' from the front waistband of the defendant's pants.
The judge found that the defendant was seized in the constitutional sense when Officer Lynch grabbed his arm and recovered the firearm. He then concluded that the seizure was justified because 'based upon the direct observations of a percipient witness in the pub, who happened to be an off-duty police officer,' the officers had reasonable suspicion to believe that the defendant possessed a firearm. Although, as the judge acknowledged, mere possession of a firearm does not provide a basis for believing that a person is engaged in criminal activity, the judge nonetheless concluded that the ''flashing' [of] a firearm in a public drinking establishment at 1:25 in the morning' posed an imminent threat to public safety.
The judge's findings are fully supported by the evidence, and his conclusions of law are consistent with the governing case law. Because we agree with the judge's ruling in all respects, we affirm the order denying the motion to suppress.
We reject the defendant's claim that the evidence did not support the judge's finding that Officer Lynch knew that the defendant had displayed a firearm in a public location. The judge heard evidence that Officer Lynch was on duty in a marked police car when he received word from his sergeant 'saying that there was a black male at a bar on Western Ave. [who] displayed a firearm wearing a red shirt.' Contrary to the defendant's argument, Officer Lynch was entitled to rely on off-duty Officer Fontanez's tip. See Commonwealth v. Riggieri, 438 Mass. 613, 618 (2002) (concluding that arresting officer properly relied on tip from off-duty police officer known to the dispatcher who reported an erratic driver). See also Commonwealth v. Love, 56 Mass. App. Ct. 229, 231- 232 (2002) ('Where, as here, the investigatory stop was based on a tip, our focus is on the tipster's reliability and his basis of knowledge, together with any independent police corroboration that may compensate for deficiencies in one or both of these factors').
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The thrust of the defendant's argument is that the facts known to the officers failed to establish a reasonable basis for believing that the defendant was engaging in or was about to engage in criminal activity. This argument misses the mark. As the motion judge correctly noted, our case law does not 'preclude [] an officer from effecting a protective weapons-frisk where the officer has reason to suspect that a gun is being carried in public in a situation that objectively gives rise to public safety concerns.' Commonwealth v. Foster, 48 Mass. App. Ct. 671, 675 (2000), quoting from Commonwealth v. Johnson, 36 Mass. App. Ct. 336, 337 (1994).
Whether Fontanez's call to the police is viewed as a report of a crime provided by a percipient witness or as a report of an imminent threat to public safety, immediate police investigation was warranted. See Commonwealth v. Campbell, 69 Mass. App. Ct. 212, 216 (2007). '[I]f the police reasonably perceive danger to themselves or to members of the public, they have a duty to investigate.' Commonwealth v. Foster, supra at 673. Here, Fontanez's call established that a man was observed displaying a gun in a bar, which gave rise to reasonable suspicion by the responding officers that the safety of the public was threatened. See Commonwealth v. Haskell, 438 Mass. 790, 793-794 (2003) (reasonable suspicion of criminal activity where police received report of defendant loading a handgun in public location at 2:00 A. M.). The motion to suppress was properly denied.
The defendant's constitutional challenge to G. L. c. 269, § 10(a), (h), and (n) does not require discussion. In two recent cases, Commonwealth v. Powell, 459 Mass. 572, 589-590 (2011), and Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011), the Supreme Judicial Court held that where, as here, a defendant has not 'asserted or made any showing that he applied for (and was denied)' an FID card or a license, he lacks standing to challenge these statutes. Commonwealth v. Loadholt, supra.
Judgments affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),