Opinion
21-P-279
05-24-2022
COMMONWEALTH v. ARIES ROSS
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008) .
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Superior Court, a jury convicted the defendant of unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a.) - On appeal, the defendant claims error in the denials of his motion to suppress and motions for a required finding of not guilty. We affirm.
So much of the count of the indictment that alleged an enhancement under G. L. c. 269, § 10G was dismissed at the Commonwealth's request. The jury acquitted the defendant of unlawful possession of a loaded firearm.
Background.
We summarize the evidence presented at the hearing on the motion to suppress. After receiving tips that drugs were being distributed out of a particular residential building, officers from the New Bedford police department began a surveillance operation. Two officers surveilled the building from separate cruisers and watched, over the course of the evening, as several cars made brief stops in front of the building. The characteristics of each of these stops were consistent with street-level drug distribution. Other officers, patrolling nearby, stopped the cars once they had driven away and recovered drugs, including marijuana, "crack" cocaine, and Oxycodone.
These facts are derived from the motion judge's findings and supplemented with uncontroverted facts from the witnesses' testimony, which the judge explicitly credited. See Commonwealth v. Ortiz, 478 Mass. 820, 821 (2018).
For example, one car approached the building twice. On both occasions, an individual came out of the building and got in the car. The individual remained in the car for only a couple of minutes before exiting and returning to the building.
One officer saw three people leave the building, one of whom was an individual that the police had observed participating in the suspected drug transactions. As the group got into a car and drove away, two other officers pulled behind them and activated the cruiser's blue lights. Rather than immediately stop, the car continued until it reached a cross-street and then turned right. A passenger (later identified as the defendant) exited and began running away, "holding his pants as if he was trying to [keep] an object from falling." One officer gave chase on foot and saw the defendant "reach into his waistband" and throw an object over a nearby fence. The object made a "metallic" sound when it hit the ground. After a search of the area behind the fence uncovered a firearm, the defendant was taken into custody.
Discussion.
1. Motion to suppress.
The defendant contends that he was unlawfully seized without reasonable suspicion. We take, as the relevant moment of seizure, the point at which the officers began pursuing the defendant individually after he exited the car and began to flee. See Commonwealth v. Sykes, 449 Mass. 308, 312 (2007). See also Commonwealth v. Matta, 483 Mass. 357, 365 (2019) ("The defendant was seized . . . once the officer ordered him to stop, and then chased him"). Thus, the question is whether the motion judge erred in determining that police -- at that moment -- "had reasonable suspicion to believe that the defendant was committing, had committed, or was about to commit a crime" (quotation and citation omitted). Matta, supra.
The defendant also posits that the seizure occurred when the police activated the cruiser's lights to effect a motor vehicle stop. See Commonwealth v. Tavares, 482 Mass. 694, 702 (2019) ("A motor vehicle stop constitutes a seizure of all individuals detained in the stop"). The record, however, is clear that justification for the stop of the automobile was probable cause to arrest the driver for drug distribution. We need not resolve whether the officers may have additionally had reasonable suspicion as to the defendant, such that an exit order or patfrisk would have been constitutionally permissible, see Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020), because, before the officers had fully executed the motor vehicle stop, the defendant had already begun to flee. See Commonwealth v. Warren, 475 Mass. 530, 534 (2016) ("The essence of the reasonable suspicion inquiry is whether the police have an individualized suspicion that the person seized is the perpetrator of the suspected crime"). As discussed infra, it was the manner of the defendant's flight from the motor vehicle stop that caused the police to suspect that he unlawfully possessed a firearm.
We conclude that the facts known to the officers justified an investigatory stop. See Commonwealth v. Warren, 475 Mass. 530, 534 (2016) (reasonable suspicion "must be grounded in 'specific, articulable facts and reasonable inferences [drawn] therefrom'" [citation omitted]). At the time that the officers began pursuing the defendant, they had observed that the defendant was "holding his waistband" with both hands on "the right side of his body." In the officers' experience, the defendant's body movements indicated that he may have been concealing a firearm in his waistband. See Matta, 483 Mass. at 366 n.8.
The suspicion that the defendant was unlawfully carrying a firearm was bolstered by observations that had been made over the course of the surveillance operation. See Commonwealth v. Meneus, 476 Mass. 231, 236 (2017) (reasonable suspicion established by "[a]ssessing the totality of the circumstances leading to the stop of the defendant"). Police investigation corroborated the reports to the tip line that drugs were being distributed out of a particular building. The defendant was seen leaving that building and getting into a car with the individual that police had probable cause to believe was the drug dealer. When the police attempted a motor vehicle stop to arrest the suspected dealer, the car did not immediately stop. Instead, the car "slowed down to a rolling speed" and the defendant got out and began to run away. See Warren, 475 Mass. at 540 ("We do not eliminate flight as a factor in the reasonable suspicion analysis"). See also Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 414 (2001) ("'Uncommon movements,' and furtive gestures also have been found relevant, as has flight"). Given these circumstances, the motion judge did not err in denying the motion to suppress.
2. Sufficiency of evidence.
The defendant also contends that the judge erred in denying his motions for a required finding of not guilty because there was insufficient evidence that he possessed the firearm officers located along his path of flight. "To sustain a conviction under G. L. c. 269, § 10 (a.), the Commonwealth must prove that the defendant knowingly possessed a firearm without . . . having in effect a license to carry firearms or a firearm identification card." Commonwealth v. White, 452 Mass. 133, 136 (2008) .
The defendant presented no evidence of licensure, see Commonwealth v. Eberhart, 461 Mass. 809, 813-814 (2012), and does not challenge the sufficiency of the evidence that the firearm he was convicted of possessing met the statutory definition of a firearm, see G. L. c. 140, § 141.
Here the evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), was sufficient for a jury to conclude that the defendant unlawfully possessed the firearm. The defendant fled from the police and, as he ran, was clutching his waistband as if to secure an item. An officer testified that this action was characteristic of someone who was "trying to conceal something or secure something so it doesn't fall." See, e.g., Commonwealth v. Grayson, 96 Mass.App.Ct. 748, 751 (2019). Pursued by police, the defendant ran into a driveway that was closed off at one end by a retaining wall and fence. Before the defendant could be apprehended, he "reached into his waistband and made a throwing motion." Although the officer could not identify the item the defendant had thrown, it "sounded as if a metallic object [had] hit the ground on the other side [of the fence]." Seconds later, a firearm was found on the other side of the fence, "consistent with where it would have landed." Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012). This evidence, taken together, was sufficient for a jury to infer that the defendant had thrown the gun over the fence and, thus, was guilty of unlawful possession of a firearm.
That the defendant can posit innocent explanations for fleeing the police or for the position of his hands while he fled does not inform our inquiry under the Latimore standard. As the sole evaluator of the witnesses' credibility, the jury were free to discredit the defendant's testimony.
Judgment affirmed.
The panelists are listed in order of seniority.