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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Johnson, 36 Mass.App.Ct.
336 (1994)
Appeals Court of Massachusetts,
No. 93‑P‑964.
Argued
Decided
Arthur N. Cole,
John P. Zanini, Asst.
Dist. Atty., for Com.
Before ARMSTRONG, KASS and
SMITH, JJ.
ARMSTRONG, Justice.
Appealing
from her conviction of unlawful possession of a handgun, G.L.
c. 269, § 10(a ), the defendant
argues that the judge erred in denying a motion to suppress the handgun as the
product of a search made without probable cause. As found by the judge, the facts were that
a Boston police officer on patrol was informed by a neighborhood person known
to him that a woman down the street was carrying a handgun in her black
purse. She pointed the woman out, and
the officer drove his cruiser down the street.
He got out and approached the defendant, who was carrying a black
handbag and was engaged in shouting angry obscenities[36 Mass.App.Ct. 337] at a man across the
street. In response to the officer's telling
her to quiet down, that she was being disorderly, she shouted obscenities at
the officer and continued shouting obscenities and gesticulating in an angry
manner at the man across the street. The
officer again warned her to quiet down, that she was being disorderly, without
success. Then the officer told her that
she was under arrest for disorderly conduct and, concerned for his safety in
the circumstances, patted down the handbag.
He felt the gun, seized the bag against her resistance, opened it, and
took the gun, which was a loaded .32 caliber weapon, into his possession. These findings are consistent with the
evidence related to the judge, although it may be that a further finding, to
the effect that a crowd was gathering, went beyond the evidence, which was to
the effect that several men stood by watching these events.
[1][2][3][4]
On the supported findings we agree with the judge's conclusion that the officer
was justified in patting down the handbag and seizing the handgun. Particularly in a modern urban setting, where
the carrying of guns in public is, if not by itself indicative of crime (see Commonwealth v. Toole, 389 Mass. 159,
163, 448 N.E.2d 1264 [1983]; Commonwealth v. Couture, 407 Mass. 178,
180‑181, 552 N.E.2d 538, cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 [1990] ), at least a matter of
serious public‑safety concern to the police, the report from a known
citizen that a gun is being carried in public warrants investigation by the
police. See Commonwealth v. Carey, 407 Mass. 528, 534‑535 n. 4, 554
N.E.2d 1199 (1990). On making such an
investigation, the officer encountered the defendant acting in an angry and
belligerent manner toward another and then toward the officer himself. In this situation the officer could reasonably
apprehend that the defendant was not wholly in control of herself and that
condition, coupled with her reportedly being armed with a handgun, presented a
danger to public safety. Nothing in Commonwealth v. Couture, supra 407
Mass. at 183, 552 N.E.2d 538, precludes 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. See Commonwealth v. Fraser, 410 Mass. 541, 544‑547 & n. 4,
573 N.E.2d 979[36 Mass.App.Ct. 338] (1991).
In a potentially volatile situation an officer should not be required to
wait to see if a suspected gun is drawn.
Where the officer is justified in making inquiry, the law is clear that
he may take prudent precautions for his own safety or that of others. See
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868,
1883, 20 L.Ed.2d 889 (1968); Commonwealth v. Ballou,
350 Mass. 751, 756‑757, 217 N.E.2d 187 (1966), cert. denied, 385 U.S.
1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967);
Commonwealth v. Bottari, 395 Mass. 777,
782 n. 5, 482 N.E.2d 321 (1985); Commonwealth v. Fraser, supra; Commonwealth
v. Fitzgibbons, 23 Mass.App.Ct. 301, 307‑309,
502 N.E.2d 142 (1986); Commonwealth v. Hurd,
29 Mass.App.Ct. 929, 557 N.E.2d 72 (1990). See also
United States v. Villanueva, 15 F.3d 197 (1st Cir.1994) (LEXIS, Genfed Library, Cir file); United States v. Jackson,
652 F.2d 244, 249‑250 (2d Cir.1981).
Compare, 3 LaFave, Search & Seizure, § 9.4(a), at 499 (2nd ed. 1987) (pat‑down
permissible where officer necessarily comes in contact with person he suspects
may be dangerous). Contrast cases cited
in LaFave, at 517 n. 106, in which police officers
proceeded to search for reported weapon without initial pat‑down.
[5][6] The
Commonwealth concedes, correctly, that, under the holding of Commonwealth v. A Juvenile, 368 Mass.
580, 586‑595, 334 N.E.2d 617 (1975), the mere use of obscenities in
public does not make out the crime of disorderly conduct, G.L.
c. 272, § 53, and, in consequence, there may have been no basis for the
defendant's arrest prior to seizure of the unlicensed handgun. Nevertheless, the seizure of the gun was, on
the judge's findings, not the product of a search incident to arrest. Rather, it was the product of the officer's
pat‑down of the handbag out of concern for the safety of himself
and others in the vicinity. The
officer's right to effect such a pat‑down, which preexisted the arrest,
was not, in our view, vitiated by the arrest, which may be treated, for
purposes of this case, as an irrelevancy.
Judgment affirmed.