Opinion
10-P-1265
02-15-2012
COMMONWEALTH v. JASON PIEU.
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 District Court jury convicted the defendant, Jason Pieu, of carrying a firearm without a license, G. L. c. 269, § 10(a), and possessing ammunition without a firearm identification card, G. L. c. 269, § 10(h). On appeal, the defendant asserts that his motion to suppress evidence found during a search of the car in which he was a passenger should have been allowed. We affirm.
The defendant was also charged with possession of a firearm, subsequent offense. In a subsequent bench trial for that offense, the defendant was found not guilty as the trial judge did not have 'the technical evidence available to [him] to find the Defendant guilty of the second offender aspect of the charge.'
This case is controlled, adversely to the defendant, in all material aspects by Michigan v. Long, 463 U.S. 1032 (1983), and Commonwealth v. Pena, 69 Mass. App. Ct. 713 (2007).
'Michigan v. Long, 463 U.S. 1032 (1983), permits an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is 'dangerous' and might access the vehicle 'to gain immediate control of weapons." Arizona v. Gant, 556 U.S. 332, 346-347 (2009). Commonwealth v. Pena, 69 Mass. App. Ct. at 718, instructs that 'in appropriate circumstances, a Terry[ ] type search may extend into the interior of an automobile. . . . Essentially, the question is whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger' (quotations and citations omitted).
See Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
Here, the police officer ran the license plate of a car with a broken tail light. The check revealed that the car's owner had an outstanding warrant. As the vehicle was being stopped, Officer Kimball observed the driver speaking to the three passengers. He also saw the defendant, who was seated in the right rear passenger seat, slump down and move his right arm and shoulder area in a manner suggesting that he was sliding something under the seat in front of him. At one point the passenger could not be seen. Upon approaching the car, the officer instantly recognized its occupants 'were wearing colors consistent with the Blood Street Gang' and were driving in the territory of the Aggressive Gangsters, 'the arch enemies of the Bloods.' He also spotted a baseball bat in the backseat of the vehicle. The presence of such an instrumentality, which could be used as a weapon, in the vehicle reasonably heightened the officer's concern for his own safety. See Commonwealth v. Rivera, 67 Mass. App. Ct. 362, 366 (2006). Although both the driver and the defendant, who had an outstanding warrant on a gun charge, were detained during the search, the threat still existed that the vehicle's other two occupants, who were sitting unhandcuffed on the curb, could return to the car. Indeed, they presumably would ultimately have been allowed to return to it.
Officer Kimball observed that each of the occupants were wearing various symbols and items of red clothing to signify Blood affiliation. Among the items were red bandanas or 'flags,' red canvas belts with the buckles on the right (signifying that the Bloods are the 'right' side), red shoe laces, a red striped shirt, and a chain with a metal five pointed star. Kimball testified that the gang uses the star in its 'graffiti, turf markers, and tattoos' and that the points of the star symbolize 'knowledge, loyalty, honor,commitment, respect.'
There was no evidence of baseballs, mitts, bases, or other equipment indicative that the bat was used in connection with the sport of baseball.
Under these circumstances, the search of the motor vehicle was justified.
We need not dwell at length on the defendant's other arguments. His second claim -- that the Commonwealth's regulatory scheme for firearms impinges on his constitutional right to bear arms -- is controlled, adversely to him, by Commonwealth v. Powell, 459 Mass. 572, 583-590 (2011). As for the sufficiency of the evidence, suffice it to say that the defendant was seen making the furtive gesture to conceal what turned out to be the gun, which was found in an area of the car most accessible to him.
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Judgments affirmed.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),