Opinion
No. 15–P–1059.
11-15-2016
COMMONWEALTH v. GILAD G., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following his arrest on three firearms-related charges, the juvenile filed a motion to suppress the firearm and ammunition police obtained during a patfrisk conducted after an officer ordered the juvenile out of a stopped vehicle. The motion was denied after an evidentiary hearing. A judge of the Juvenile Court adjudicated the juvenile delinquent on two of the charges after a bench trial. On appeal the juvenile contends that the judge erred in denying his motion to suppress, arguing that the vehicle stop and subsequent police actions were not justified by either reasonable suspicion or a reasonable concern for officer safety. We affirm.
The two offenses are carrying a firearm without a license and carrying a loaded firearm without a license. A third charge, possession of ammunition without a firearm identification card, was dismissed at the request of the Commonwealth.
"In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Jessup, 471 Mass. 121, 129 (2015) (quotation omitted).
At the evidentiary hearing, three Boston police officers testified to the following undisputed facts. On January 3, 2015, three officers approached two vehicles, an Altima and an Acura, that were stopped on opposite sides of a street in the Dorchester neighborhood of Boston. Multiple occupants were in each vehicle, and they were communicating with each other across the street. The officers knew that the Altima was associated with a recent gang-related shooting in the neighborhood. Shortly after the first officer approached, the situation escalated. The officers noticed that at least four gang members known to them were present, two of whom were brothers associated with the Altima. One of the brothers was in the driver's seat of the Altima; the other was in the driver's seat of the Acura. Shortly after the officer approached, the driver of the Altima was found with crack cocaine and handcuffed. Another gang member went "ballistic" when he was given an exit order from the Altima. The three gang members began shouting and encouraging each other to run. During the ongoing commotion, the officer monitoring the Acura observed the juvenile, who was sitting in the front passenger seat, to be shaking and acting nervously. He did not respond to the officer's questions, but kept his hands visible as ordered. When the driver of the Acura fled along with the handcuffed driver of the Altima, the juvenile was ordered to exit the Acura. A patfrisk revealed a loaded gun.
1. Investigatory stop. An investigatory stop of a motor vehicle is justified when police have a "reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom," that a vehicle occupant has committed, or is about to commit a crime. Commonwealth v. Haskell, 438 Mass. 790, 793 (2003) (quotation omitted). Although the Acura was not connected to the prior shooting, the officers nevertheless were warranted in conducting an investigatory stop. The officers knew that the Altima was registered to the mother of the two brothers, one of whom was driving the Acura. The officers also knew that the driver of the Acura was a gang member with a prior arrest on a probation violation. Those facts, in addition to the communication between the occupants of the vehicles, and the immediate discovery of drugs on the driver of the Altima, provided the necessary reasonable suspicion to stop the Acura.
2. Exit order and patfrisk. "While a mere hunch is not enough ... it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). See Commonwealth v. Feyenord, 445 Mass. 72, 75–76 (2005), cert. denied, 546 U.S. 1187 (2006). To determine whether it is reasonable for an officer to believe that danger is present, we consider "whether a reasonably prudent man in the policeman's position would be warranted" in such a belief. Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997), quoting from Commonwealth v. Santana, 420 Mass. 205, 212–213 (1995).
Considering the totality of the circumstances here, all of the officers involved, including the officer who issued the exit order and performed the patfrisk, had a reasonable suspicion of danger sufficient to justify those orders. Considering the fact that the officers were outnumbered, dealing with known, violent gang members, some of whom were actively promoting unrest and had fled from the police, and a nervous, shaking, nonresponsive juvenile, the evidence supported a finding of reasonable fear for personal safety on the part of the officers. See Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 315 (1992) (that trooper was outnumbered four to one was a factor in determining whether he reasonably feared for his safety); Commonwealth v. Elysee, 77 Mass.App.Ct. 833, 841 (2010) (known gang membership part of the totality of circumstances police must confront and assess in context of exit order and patfrisk analysis). See also Commonwealth v. Hernandez, 77 Mass.App.Ct. 259, 268–269 (2010) (exit order and patfrisk justified where defendant was nervously shaking, sitting on one hand, and failed to answer officer's questions or produce identification), citing Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) ("[J]ustification for an exit order does not depend on the presence of an ‘immediate threat’ ..., but rather on the safety concerns raised by the entire circumstances of the encounter"). For all of these reasons, both the exit order and the patfrisk were justified. The motion to suppress properly was denied.
The juvenile also challenges the officer's order that he keep his hands visible. The same analysis applies to this order as does to the exit order, both of which were justified based on the facts and circumstances known to the officer at the time the orders were given.
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Adjudications of delinquency affirmed.