Opinions of

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Commonwealth v. McCauley, 11 Mass.App.Ct. 780 (1981)

Appeals Court of Massachusetts, Middlesex.

Argued March 9, 1981.

Decided May 6, 1981.

Further Appellate Review Denied June 24, 1981.

 

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

 

Wayne A. Perkins, West Somerville, for defendant.

 

Before GRANT, CUTTER and GREANEY, JJ.

CUTTER, Justice.

 

       McCauley was found guilty in a District Court on July 1, 1980, of unlawfully carrying on his person a .22 caliber semi‑automatic pistol.  G.L. c. 269, s 10(a).  He appealed for a jury trial de novo.  He also filed a motion to suppress the gun which was taken from him, asserting that the search of his person when the gun was discovered was without his consent.  The Commonwealth did not contend that the gun was in plain view.  The judge found the following facts.

 

       About 11:55 P.M. on April 22, 1980, two Somerville police officers were in a cruiser near Teele Square.  They received word to call the station by telephone.  They did so.  The dispatching officer told them (a) that a white male, [11 Mass.App.Ct. 781] five feet, ten inches tall, with a mustache and curly hair was in the Teele Square Cafe; (b) that he was wearing a red, white, and blue sweater; and (c) that he was carrying a firearm which he had dropped on the floor more than once.  The station officer said this information "had been received from an anonymous party."

 

       The officers went to the cafe and soon picked McCauley (from thirty to fifty patrons present) as fitting the description received from the dispatching officer.  The officers approached McCauley, asked a female companion to step away, told McCauley to raise his hands above his head, and gave him a "pat down."  As a consequence, the officers took from McCauley's left side a .22 caliber pistol "which had been stuffed in a belt attached to" McCauley's trousers.

 

       Prior to the "pat down," McCauley said nothing to the two officers.  They did not   assert that they had seen the firearm prior to the pat down or that he was acting suspiciously, or that he consented to the pat down.  No evidence was offered at the suppression hearing to warrant a finding that the officers were "apprehensive of harm at the time of the" pat down.  No guns were drawn.  The judge allowed the motion to suppress.  The Commonwealth sought interlocutory review.  Mass.R.Crim.P. 15(a)(2), 378 Mass. ‑‑‑ (1979).  By stipulation the parties adopted the trial judge's findings as a substitute for a statement of agreed facts under Mass.R.A.P. 8(d), 365 Mass. 851 (1974).

 

       The Commonwealth relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and cases which follow it as justifying the brief inquiry and pat down.  That reliance is proper.  These officers on patrol in a cruiser had received word from their dispatcher that an armed man, described in considerable detail, was present in the cafe just before midnight.  He had dropped his gun at least twice.  The dispatcher had to act on an anonymous telephone report.  The hour and the place gave reason for suspicion that the suspect had been drinking in the cafe.  The account of dropping a pistol strongly suggested carelessness with firearms and perhaps even intoxication.  The officers had no time to deliberate and promptly [11 Mass.App.Ct. 782] went to the cafe.  There they easily identified McCauley as fitting the detailed description, made a careful, threshold "pat down," and discovered that the anonymous informer was completely right.  McCauley was armed.

 

       The facts do not as strongly support the officer's action as those in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), but we think that the officers' prompt, restrained, threshold search was justified by the hour, the location of the inquiry, the risks to other patrons, and the specificity of the anonymous report in describing McCauley.  The "specificity of the information supplied" may be relevant in determining an informant's credibility.  See Commonwealth v. Fleurant, 2 Mass.App. 250, 253, 311 N.E.2d 86 (1974); State ex rel. H. B., Juvenile, 75 N.J. 243, 248‑249, 381 A.2d 759 (1977).

 

       The case seems to us much closer to Commonwealth v. Anderson, 366 Mass. 394, 397‑399, 318 N.E.2d 834 (1974), than to Commonwealth v. Antobenedetto, 366 Mass. 51, 55‑56, 315 N.E.2d 530 (1974).  This search did not go beyond what was "minimally necessary to learn whether ... (McCauley was) armed and to disarm him once the weapon (was) discovered."  Commonwealth v. Silva, 366 Mass. 402, 408, 318 N.E.2d 895 (1974).

 

       "The touchstone of ... analysis (of an inquiry or search) under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security' (citing Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. at 1878).  Reasonableness, of course, depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' "  Pennsylvania v. Mimms, 434 U.S. 106, 108‑109, 98 S.Ct. 330, 332‑333, 54 L.Ed.2d 331 (1977).  Here the police officers, in our opinion, probably could not have done other than substantially what they did and still have complied with their public duty.

 

       The record in this case does not show that anything was known about the identity of the informant, nor does it suggest that the defendant was known to the police in advance of the pat down.  The anonymous report did give the policemen sound ground to fear the defendant to be armed and [11 Mass.App.Ct. 783] thus to take no risks of being hurt themselves.  It was a matter for the officers' judgment whether further inquiries of bar employees or other patrons would be likely to cause more commotion and create more risks than a direct approach to the defendant in the well filled cafe.  Obviously, they were faced with a dilemma, and we conclude that their action was reasonable.

 

       No case in this troublesome area of threshold searches is precisely like any other case and very slight indicia confirming   suspicion have often been relied on to support sensible police conduct.  Even in the absence of such slight indicia, the police sometimes must take prompt and effective action.  Decisions generally supporting these officers' prompt, and only moderately intrusive action, in a great variety of circumstances, include Commonwealth v. Ballou, 350 Mass. 751, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967); United States v. Gorin, 564 F.2d 159, 160‑161 (4th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); United States v. Sierra‑Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) (direct presence of informant); United States v. Mireles, 583 F.2d 1115, 1117 (10th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 332 (1978); Hetland v. State, 387 So.2d 963 (Fla.1980); In re Boykin, 39 Ill.2d 617, 618‑619, 237 N.E.2d 460 (1968); State v. Jernigan, 377 So.2d 1222, 1224‑1225 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980, dealing with a situation similar to the present case described as presenting "an immediate danger to the public ... aggravated by its occurrence in an occupied alcoholic beverage outlet"); State ex rel. H. B., Juvenile, 75 N.J. at 248‑252, 381 A.2d 759.  See People v. Taggart, 20 N.Y.2d 335, 337‑340, 283 N.Y.S.2d 1, 229 N.E.2d 581 (1967), modified 21 N.Y.2d 729, 287 N.Y.S.2d 695, 234 N.E.2d 714, appeal dismissed, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968), where Judge Breitel described the officers' dilemma (20 N.Y.2d at 339‑340, 283 N.Y.S.2d 1, 229 N.E.2d 581): "There are exigencies affecting life, limb, or grave property damage in which the police receive information of crime, not sufficient to establish probable cause for arrest and incidental search, and yet which, to any reasonable man, demand the taking of police action to prevent serious harm.  In such cases it is not enough to say that nothing should be done, [11 Mass.App.Ct. 784] or that if something is done, the resultant evidence should be suppressed.  To do nothing is to succumb supinely to serious injury to members of the public or to the State itself, sincerely believed to impend, particularly as the test for action is supposed to be what a reasonable man would do under the circumstances .... To tolerate unconstitutional action as a matter of necessity, as some argue, but then to reject use of the evidence obtained, is hardly a proper way to justify illegal conduct as necessary, on the one hand, but to limit on the other hand, the consequences of those actions as illegal."  See Model Code of Pre‑Arraignment Procedure s 110.2(4) (1975).  Compare and contrast People v. De Bour, 40 N.Y.2d 210, 221‑226, 232, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976), where in circumstances much like those in the present case, Judge Breitel joined in an opinion reaching a different result.  The difficulties inherent in this type of case are well illustrated by two very recent cases.  See Judge Wald's sensible recognition that "we do not live in an antiseptic world," in United States v. White, 648 F.2d 29, 45 (D.C. Cir. 1981).  ([FNA]) Compare and contrast United States v. Clay, 640 F.2d 157, 158‑161 (8th Cir. 1981).

 

       Three very recent cases are plainly distinguishable.  These officers, because of the information received from the dispatching officer, had at least "a reasonable suspicion, based on objective facts, that" McCauley was "involved in criminal activity" (Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979)), that is, the possession of a pistol, in circumstances which might easily prove to be dangerous to others.  Compare and contrast Brown v. Texas, 443 U.S. at 51‑52, 99 S.Ct. at 2641‑2642.  Compare also Delaware v. Prouse, 440 U.S. 648, 658‑663, 99 S.Ct. 1391, 1398‑1401, 59 L.Ed.2d 660 (1979); Reid v. Georgia, 448 U.S. 438, 439‑440, ([FNB]) 100 S.Ct. 2752, 65 L.Ed.2d 890.

 

       The order suppressing the pistol as evidence is reversed.  The case is remanded to the District Court for further proceedings.

 

       So ordered.

 (FNA.) 28 Crim.L.Rep.  (BNA) 2534, 2537.

 

 (FNB.) 100 S.Ct. 2752, 2753 (1980).