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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Jones, 21 Mass.App.Ct.
910 (1985)
Appeals Court of Massachusetts,
Argued
Decided
Steven J. Rappaport,
Newman Flanagan, Dist. Atty., & Robert N. Tochka, Asst. Dist. Atty., for the Commonwealth.
Before BROWN, KAPLAN and PERRETTA,
JJ.
[21 Mass.App.Ct. 910]
RESCRIPT.
The
defendant was convicted of unlawfully carrying a firearm (G.L.
c. 269,§ 10[a ] ). The weapon was discovered under the rear seat
of a police cruiser in which the defendant had been seated immediately prior to
the discovery. The defendant moved
unsuccessfully to suppress the firearm, claiming it was
unconstitutionally seized pursuant to a warrantless
search. This appeal challenges the
denial of that motion.
[21 Mass.App.Ct.
911] A police officer received
information from a reliable informant that the defendant was carrying a
firearm. The officer stopped the
defendant, patted him down, and found no weapon. The defendant, conceding that the officer was
justified in approaching him and conducting a pat‑frisk on the strength
of a reliable (FN1) informant's tip (see
Adams v. Williams, 407 U.S. 143, 144‑148, 92 S.Ct.
1921, 1922‑1924, 32 L.Ed.2d 612 [1972] ), argues that the seizure of his
person after the unsuccessful frisk exceeded the permissible scope of the
investigative stop. The defendant
further asserts that the subsequent discovery of the firearm in the police
cruiser in which he had been riding was the fruit of that illegal arrest.
The
defendant's contentions are inapposite to the circumstances presented
here. The defendant correctly observes
that the order of the events that occurred "was not specifically found by
the judge." It is apparent,
however, from the context and manner in which the judge made his findings that
the officer approached the defendant, asked for identification, and, as a
result of observing the same fraudulent liquor purchase identification card
which he had checked out two weeks earlier, placed the defendant, without handcuffs,
in the cruiser. The judge further found
that, before placing the defendant in the cruiser, the officer had observed no
bulges, nor discovered a weapon after the pat‑frisk. However, the officer "heard a 'clunk' of
metal while standing next to the cruiser[, and] removed the defendant from the
car, searched the car and found a loaded gun under the rear seat." The judge, characterizing this as "an
attempt to conceal the gun," concluded that the officer had probable cause
to arrest the defendant at that point for violation of G.L.
c. 269, § 10(a ), which was what the
officer then did. (FN2)
[1][2] The
officer properly could ask for the defendant's identification before conducting
the pat‑frisk. See Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985). It is uncontroverted
that in response to the officer's request the defendant handed him a liquor
purchase identification card which bore the address of a vacant parking
lot. When the defendant produced the
same liquor purchase identification card with a false address that the officer
had seen and checked out two weeks earlier, the officer was empowered to arrest
the defendant without a warrant and hold him in custody pending the seeking of
a complaint against him. See G.L. c. 138, § 34B.
(FN3) Once the [21 Mass.App.Ct.
912] defendant was lawfully in the
police cruiser, the timing of the discovery of the gun was insignificant. (FN4)
Nor does it matter whether the gun was in plain view after the officer
heard the "clunk" or instead was discovered after a search. The defendant has no reasonable expectation
of privacy in property which he either attempts to conceal or abandons in
a police cruiser. See Commonwealth v. Battle, 365 Mass. 472,
475, 313 N.E.2d 554 (1974); Commonwealth v. Fox, 3 Mass.App. 123, 125, 323 N.E.2d 917 (1975). See also
Commonwealth v. Jackson, 384 Mass. 572, 584, 428 N.E.2d 289 (1981);
Commonwealth v. Lanigan, 12 Mass.App. 913, 423 N.E.2d 800 (1981). The judge correctly denied the defendant's
motion to suppress.
Judgment affirmed.
(FN1.) The reliability of the informant has
not been contested. See Commonwealth v. McCauley, 11 Mass.App. 780, 419 N.E.2d 1072 (1981).
(FN2.)
The judge found that, when the officer placed the defendant in the cruiser, he
intended "to transport him to the police station for an arrest warrant
search." We note that the officer,
who had a reasonable suspicion that the defendant had a gun because of the
information supplied by the reliable informant, could have conducted a search
incident to an immediate arrest of the defendant pursuant to G.L. c. 276, § 1, before he placed him in the car. The officer's more cautious approach,
however, did not vitiate his perfectly correct actions thereafter.
(FN3.)
That provision defines the misdemeanor of using or carrying a false liquor
purchase identification card, or giving false information in obtaining such a
card, and further provides for the detention and warrantless
arrest of persons discovered by the police to be violating the section.
(FN4.) The
defendant's stipulated version of events has been that the gun was discovered
by another officer but not until after the defendant had been transported to
the police station and removed from the cruiser.