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Commonwealth v. Ferrioli, 10 Mass.App.Ct.
489 (1980)
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Further Appellate Review Denied
Peter W. Agnes, Jr., Asst. Dist. Atty., for the
Commonwealth.
Christopher J. Muse,
Before HALE, C. J., and KASS
and NOLAN, JJ.
KASS, Justice.
Forewarned
that he was armed with a pistol, was suffering from drug withdrawal, and had
that day threatened to shoot holes in his wife's house, Malden police officers
stopped and searched Ferrioli and found him in
possession of a small caliber automatic handgun and a can of mace. Preliminary to trial on charges of unlawfully
carrying a firearm (G.L. c. 269, s 10(a )) and
unlawful possession of ammunition (G.L. c. 269, s
10(h )), ([FN1]) the defendant Ferrioli moved to
suppress the pistol and can of mace taken
[10 Mass.App.Ct. 490] from him. The Commonwealth
appealed as of right from the allowance of that motion under Mass.R.Crim.P. 15(a)(2), ‑‑‑
In his
findings, rulings and order, the District Court judge concluded, "There
being no probable cause sufficient in law to justify the officer's intrusion,
the motion to suppress is allowed."
Questions by the judge to the arresting officer suggest that the judge
focused his attention on whether there was probable cause to arrest Ferrioli. We think
that there was probable cause to make a preliminary stop of Ferrioli
and a search of his person under the principles announced in Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and
discussed in decisions such as Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d
895 (1974); Commonwealth v. Almeida, 373 Mass. 266, 366 N.E.2d 756 (1977), and
Commonwealth v. Ferrara, ‑‑‑ Mass.App.
‑‑‑ ([FNA]), 406 N.E.2d 699
(1980). There was also probable cause to
arrest Ferrioli under principles discussed in Draper
v. United States, 358 U.S. 307, 312‑313, 79 S.Ct.
329, 332, 3 L.Ed.2d 327 (1959); Commonwealth v. Storey, 378 Mass. ‑‑‑,
‑‑‑ ([FNB]), 391 N.E.2d 898 (1979);
and Commonwealth v. Piso, 5 Mass.App.
537, 541, 364 N.E.2d 1102 (1977).
From the
findings of the motion judge (with some supplement from the transcript of the
motion hearing), we learn the following: Domestic travail between the defendant
and his wife had led to threats by the former that he would shoot holes in the
house where Mrs. Ferrioli was living (it was not the
marital domicil).
She and her sister‑in‑law were sufficiently alarmed to call
for the police at about 2:30 P.M., August 19, 1978. To the officer who responded Mrs. Ferrioli said she was concerned about the threat
because her husband carried a gun strapped to the middle or lower part of his
back and because he had fired it at her previously during an argument in their
home in Everett. Moreover, he had an
addiction to amphetamines and was trying to "dry out." She also gave the police officer a
description of her husband and the car he was driving, an orchid‑colored
Cadillac with Massachusetts registration 125ALN.
This
information was communicated to the incoming shift of the Malden Police
Department. At about 6:30 P.M. [10 Mass.App.Ct.
491] another Malden police officer,
Healy, spotted Ferrioli in his orchid Cadillac. Healy called his headquarters and, when assistance
from another police cruiser arrived, stopped Ferrioli. Upon making the stop, Healy told the driver
to keep his hands in plain sight and asked his name. Ferrioli identified
himself. Healy then made a stolen car
check. He asked Ferrioli
if he could look in the trunk of Ferrioli's car. Ferrioli
declined. While this was going on, a
total of four police cars and seven to nine policemen had gathered on the
scene. Healy then ordered Ferrioli out of his car, made a pat down search, found the
handgun on his person and arrested him.
As Ferrioli stepped out, Healy saw the can of
mace in plain view on the driver's seat.
(1) In
view of the information the police possessed, i. e.,
that Ferrioli had a gun, had said he would use it,
and that he might be under the influence of drugs, their initial stop of him
was constitutionally permissible. The
police had solid grounds to suspect that Ferrioli was
committing or was about to commit a crime.
Commonwealth v. Lehan, 347 Mass. 197, 201‑204,
196 N.E.2d 840 (1964). This principle
extends to stops of motor vehicles.
Commonwealth v. Ling, 370 Mass. 238, 240‑241, 346 N.E.2d 703
(1976). Commonwealth v. Ferrara, 376
Mass. ‑‑‑, ‑‑‑ ([FNC]),
381 N.E.2d 141 (1978). Commonwealth v.
Johnson, 6 Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FND]), 382 N.E.2d
1124 (1978). The arresting officer was
entitled to rely on the information relayed via the officer who first responded
to Mrs. Ferrioli's call, id. at ‑‑‑
‑ ‑‑‑ ([FNE]), 382 N.E.2d
1124, and was justified in relying and acting upon the detailed information
(where her husband carried a gun, what kind of car he drove) furnished by the
potential victim. See Adams v. Williams,
407 U.S. 143, 146‑147, 92 S.Ct. 1921, 1923, 32
L.Ed.2d 612 (1972). See also
Commonwealth v. Ballou, 350 Mass. 751, 756, 217
N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct.
760, 17 L.Ed.2d 679 (1967); Commonwealth v. Anderson, 366 Mass. 394, 397‑400,
318 N.E.2d 834 (1974). Indeed, it would
have been cavalier of the police not to have intercepted the defendant, taking
into consideration his threats and apparent state of mind. ([FN2])
(2) [10 Mass.App.Ct.
492] It is necessary to inquire next
whether the scope of the warrantless search was
justified by the circumstances. Given
the factual context, the confines of the search were within what was minimally
necessary to learn whether the suspect was armed and, if so, to disarm
him. Commonwealth v. Silva, 366 Mass. at
408, 318 N.E.2d 895. Commonwealth v.
Almeida, 373 Mass. at 272, 366 N.E.2d 756.
The extent of the officers' fear for their own personal safety is a
significant consideration in evaluating their conduct. United States v. Beck, 598 F.2d 497, 501 (9th
Cir. 1979). Cf. United States v. Ramos‑Zaragosa, 516 F.2d 141, 144 (9th Cir. 1975). In the instant case the officers were
warranted in feeling apprehensive about their safety; they had reason to
believe the defendant was armed, prone to violence, and under the influence of
excitatory drugs. Significantly, Officer
Healy did not move in on the defendant until a back‑up car arrived on the
scene. He engaged in fairly routine
questioning until four cruisers surrounded the defendant, and then ordered him
out for the pat‑down search. The
brief delay in the pat‑down search may have
afforded the police an opportunity to assess the situation and the stability of
the defendant. Unlike a case such as
Commonwealth v. Silva, supra, the police did not pry into the innards of the
car after a frisk of the suspect turned up no weapon. Ordering the defendant out of his car is
within the bounds of acceptable intrusion under Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct.
330, 333, 54 L.Ed.2d 331 (1977). Compare
Commonwealth v. Ferrara, 376 Mass. at ‑‑‑ ([FNF]), 381 N.E.2d 141, where, after the initial stop, the police
had no basis for further interrogation.
Here, on the basis of the complaint made by Ferrioli's
wife, the police, as we have noted, had reason to believe that, at the least, Ferrioli was unlawfully carrying a firearm. It was proper for the police to presume that Ferrioli did not have a license to carry a firearm. See Commonwealth v. Jones, 372 Mass. 403,
406, 361 N.E.2d 1308 (1977).
Since the
police had probable cause to believe Ferrioli was
committing a felony, and so to arrest him, see United States v. Watson, 423
U.S. 411, 416‑422, 96 S.Ct. 820, 824, 46
L.Ed.2d 598 (1976), they had a basis to search him incident to his arrest. United States v. [10 Mass.App.Ct. 493] Robinson, 414 U.S. 218, 224‑226, 94 S.Ct.
467, 471, 38 L.Ed.2d 427 (1973). See Commonwealth
v. Tarver, 369 Mass. 302, 308, 345 N.E.2d 671 (1975); Commonwealth v. Murphy, 6
Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNG]), 375 N.E.2d 366
(1978); LaFave, Search and Seizure s 5.2 (1978). We need not consider, therefore, the length
of the defendant's detention (not in excess of five minutes) before he was
searched. To the extent the time for an
investigatory search had expired (we do not so decide), the search was valid as
accompanying the arrest. Compare United
States v. Richards, 500 F.2d 1025, 1028‑1029 (9th Cir. 1974), cert.
denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393
(1975); United States v. Russell, 546 F.2d 839, 840 (9th Cir. 1976) (Wright,
J., specially concurring, at 841).
Since the
intrusion was within permissible limits, we reverse the order suppressing the
pistol seized from the defendant and the can of mace found on the car seat.
So
ordered.
(FN1.) From the complaint which makes the
second charge we learn that the "ammunition" was a can of mace, an
incapacitating gas. See G.L. c. 140, s 122B, as amended by St.1971, c. 456, s 2.
(FNA.) Mass.App.Ct.Adv.Sh. (1980) 1241.
(FNB.) Mass.Adv.Sh. (1979) 1546, 1558.
(FNC.) Mass.Adv.Sh. (1978) 2701, 2703.
(FND.) Mass.App.Ct.Adv.Sh. (1978) 1101, 1102‑1103.
(FNE.) Mass.App.Ct.Adv.Sh. (1978) at 1101‑1102.
(FN2.)
It is easy to imagine the hue and cry which would have been raised if the
police had done nothing and the defendant had shot his wife.
(FNF.) Mass.Adv.Sh. (1978) at 2705.
(FNG.) Mass.App.Ct.Adv.Sh. (1978) 533, 544‑545.