Opinions of

The Massachusetts Supreme Judicial Court

and the Massachusetts

Court of Appeals

To be used in conjunction with the CPS Criminal Procedure Textbook

 

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Commonwealth Police Service, Inc.

and the Law Office

of Patrick Michael Rogers

 

 

 

                                                                                                                                                                  

Commonwealth v. Moschella, 11 Mass.App.Ct. 1021 (1981)

Appeals Court of Massachusetts, Suffolk.

Argued April 16, 1981.

Decided May 5, 1981.

 

Sherrill P. Cline, Somerville, for defendant.

 

M. Catherine Huddleson, Sp. Asst. Dist. Atty.  (David Marsh, Legal Asst. to the Dist. Atty., with her), for the Commonwealth.

 

Before BROWN, CUTTER and KASS, JJ.

RESCRIPT.

 

       This is an interlocutory appeal from the denial of the defendant's pretrial motion to suppress certain illegal drugs and an unlicensed firearm.

 

       (1) It is unnecessary for us to decide whether the information received from the so‑called reliable police informant could constitute probable cause to arrest (see Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)), as we conclude [11 Mass.App.Ct. 1022] that the defendant was properly arrested and the evidence sought to be suppressed was properly seized incident to that arrest.  See Commonwealth v. Battle, 365 Mass. 472, 476, 313 N.E.2d 554 (1974).  See also Chimel v. California, 395 U.S. 752, 762‑763, 89 S.Ct. 2034, 2039‑2040, 23 L.Ed.2d 685 (1969); Commonwealth v. Ferrara, ‑‑‑Mass.App. ‑‑‑,[FNa] 406 N.E.2d 699 (1980).

 

       Prior to the arrest the police saw the defendant place a weapon under the front seat of his automobile.  This observation thereby entitled the police to seize the defendant on the spot.  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).  See United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976).  Thus, the only aspect of this case which deserves more than summary treatment is the defendant's contention that he was illegally arrested at the time the officers immobilized his vehicle by blocking it with a police cruiser.  See Commonwealth v. Wallace, 346 Mass. 9, 16, 190 N.E.2d 224 (1963).

 

       (2) We conclude that the circumstances reasonably warranted "the interference with the defendant's freedom which resulted from the ... (blocking) of ... (his) motor vehicle."  Commonwealth v. Riggins, 366 Mass. 81, 86, 315 N.E.2d 525 (1974).  See Commonwealth v. Cantalupo, ‑‑‑ Mass. ‑‑‑, ‑‑‑ n.1, ([FNB]) 402 N.E.2d 1040 (1980), and cases cited therein.

 

       The officers had sufficient justification to make an investigatory stop.  See Adams v. Williams, 407 U.S. 143, 145‑147, 92 S.Ct. 1921, 1922‑1923, 32 L.Ed.2d 612 (1972).  See also United States v. Cortez, 449 U.S. 411, ‑‑‑, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).  The informer had told the officers that the defendant had cocaine in his possession and was also carrying a firearm.  See Commonwealth v. Cantalupo, supra at 1040 ‑ ‑‑‑, 402 N.E.2d 1040, ([FNC]) and cases cited.  Contrast Sibron v. New York, 392 U.S. 40, 62‑63, 88 S.Ct. 1889, 1902‑1903, 20 L.Ed.2d 917 (1968).  When the officers' personal knowledge is coupled with the informer's quite specific tip (which was corroborated in substantial part), it cannot be said that the officers lacked "specific and articulable facts" (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)), from which they could reasonably infer in light of their experience that the defendant was engaged in or about to engage in criminal conduct.  Contrast Reid v. Georgia, 448 U.S. 438, ‑‑‑, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); Commonwealth v. Bacon, ‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑, ([FND]) 411 N.E.2d 772 (1980).

 

       We need not decide whether the police could have effected a constitutionally permissible arrest of the defendant if they had not observed the weapon in the defendant's hand.

 

       Order affirmed.

 FNa. Mass.App.Ct.Adv.Sh.  (1980) 1241.

 

 (FNB.) Mass.Adv.Sh.  (1980) 741, 744 n.1.

 

 (FNC.) Mass.Adv.Sh.  (1980) at 743‑744.

 

 (FND.) Mass.Adv.Sh.  (1980) 2223, 2226‑2227.