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Commonwealth v. Prevost, 44 Mass.App.Ct.
398 (1998)
Appeals Court of Massachusetts,
No. 96‑P‑1087.
Argued
Decided
Further
Appellate Review Denied
Pedro A. Jaile,
Mary E. Mullaney,
Assistant District Attorney, for the Commonwealth.
Before PERRETTA, GILLERMAN and LAURENCE, JJ.
GILLERMAN, Justice.
Following
the denial of the defendant's motion to suppress and a one‑day bench
trial, the defendant was found guilty on charges of violating G.L. c. 269, § 10(a
) (carrying a firearm without a license), and G.L. c.
269, § 10(h ) (possession of a
firearm without a firearm identification card).
The defendant [44 Mass.App.Ct. 399]
appeals from the denial of his motion to suppress, and from the denial of his
motion for a required finding of not guilty.
(FN1)
Findings
of fact were not made by either the judge who heard the motion to suppress or
the judge who conducted the trial.
However, the reasons for their decisions are evident from the
record.
1. The motion to suppress. On the evening in question, Trooper Coleman
(the only witness at the motion to suppress hearing) was in the back seat of an
unmarked cruiser; in the front seat were
two
One
officer then approached the driver's side, and Coleman approached the passenger
side of the stopped vehicle. As Coleman
did so, the defendant was putting his coat on;
he was trying to insert his left arm into the sleeve. These movements‑‑which the
officers found to be unusual when a vehicle is merely pulled over‑‑made
Coleman additionally apprehensive.
Coleman,
now at the passenger side of the car with the defendant's window half open,
told the defendant to stop moving and to stop trying to put on his coat. Coleman gave these instructions because it
was his impression that the defendant was trying to conceal something. Coleman then inquired why [44 Mass.App.Ct. 400] the defendant was attempting to put on his coat when the vehicle
was being pulled over, and the defendant, without further explanation,
acknowledged that he should not have done that.
Coleman
then opened the door of the vehicle and asked the defendant to remove his coat
from the area of his leg and to expose the area of his waist. Coleman made these requests out of concern
for his own safety. The defendant
complied, whereupon Coleman saw what appeared to be the outline of a small handgun
inside the defendant's pants. Coleman
reached down, felt the outline of a handgun, put his left hand on top of the
weapon, drew his own weapon, and said, "Don't move." The defendant raised his hands, and said,
"You got me. I give up." One of the Brockton officers then joined
Coleman, and Coleman seized the gun and put it inside his own pocket. The defendant was then taken from the vehicle
and placed under arrest. (FN2) Meanwhile, the driver had been placed under
arrest for operating without a license.
[1] The
defendant does not dispute the legitimacy of the stop of the automobile. The sole issue is whether the search of the
defendant, a passenger, was justified.
[2][3] We
start with the recognition that there is no automatic right to search a
companion of a person validly arrested, see
Commonwealth v. Wing Ng, 420 Mass. 236, 237‑238, 649 N.E.2d 157
(1995), and that that principle has been extended to benefit a person who is
merely present in a suspected car. Such
a person does not lose "immunities from search of his person to which he would
otherwise be entitled." United States v. Di
Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210 (1948), cited in Commonwealth v. Wing Ng, 420 Mass. at 238 n. 2, 649 N.E.2d
157. (FN3), (FN4) However, in the case
before us, each step in the progress of the police inquiry, culminating in the
search of the defendant, was justified by the circumstances confronting the
police.
[44 Mass.App.Ct.
401] After the motor vehicle was
properly stopped, and before the police left the cruiser, the police saw
uncommon movements within the vehicle.
Most particularly, the police observed the defendant bend over to the
point where he was briefly out of sight.
In the context of a simple traffic stop for proceeding the wrong way on
a one‑way street, the defendant's body movements,
together with the unexpected and uncommon act of bending over to the point of
being out of sight of the police, were furtive movements requiring further
inquiry in the context of a justifiable concern for the safety of the
officers. See Commonwealth v. Rivera, 33 Mass.App.Ct.
311, 315, 599 N.E.2d 245 (1992) (one factor justifying the search was the fact
that the defendant "bent forward, as if to place something on the floor,
as the trooper approached the car"); Commonwealth v. Heughan,
40 Mass.App.Ct. 102, 104, 661 N.E.2d 939 (1996) (in
deciding what next to do, the police could consider "the bending movement
of the rear‑seat passenger as the police pulled the Toyota over, a motion
that reasonably could be taken as placing or retrieving an object beneath the
driver's seat"); Commonwealth v. Bartlett, 41 Mass.App.Ct. 468, 471, 671 N.E.2d 515 (1996) (furtive
movements invite further inquiry). See
also Commonwealth v. Vanderlinde,
27 Mass.App.Ct. 1103, 1104, 534 N.E.2d 811 (1989)
(police justified in fearing that the suspect's purpose in reaching into the
"well" between the driver's seat and that of the passenger
"might be to obtain a gun").
When, as
Trooper Coleman approached the passenger side of the vehicle, he saw the
defendant struggling to put on his overcoat, the trooper was additionally
apprehensive that the defendant might be concealing a weapon. That apprehension was heightened when the
defendant gave no explanation for putting on his coat after being stopped for a
traffic violation. Coleman could take
into account "the inordinate risk confronting an officer as he approaches
a person seated in an automobile." Commonwealth v. Sumerlin,
393 Mass. 127, 130, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985). Coleman had to consider the real possibility
that the defendant had bent forward to conceal or retrieve a weapon, and he was
not obliged to gamble with his own safety in deciding what to do.
Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555 (1992)
(police are not required to gamble with their own safety). See
Commonwealth v. Lantigua, 38 Mass.App.Ct.
526, 528‑529, 649 N.E.2d 1129 (1995) ("Courts cannot be oblivious to
the recent escalation in the numbers of incidents [44 Mass.App.Ct. 402] reported wherein police officers have been killed or wounded
while performing routine traffic functions.").
These
circumstances, in the aggregate, were sufficient to justify Coleman's concern
for his safety and his decision to open the car door. When Coleman opened the car door, the search
began, (FN5), (FN6) but by pursuing the inquiry, as he was obliged to do,
Coleman had chosen the least intrusive manner with which to resolve the
problem, meanwhile taking the steps necessary to protect the safety of the
three officers. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct.
1868, 1883, 20 L.Ed.2d 889 (1968) (police may undertake a reasonable search for
weapons when a "reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger");
Commonwealth v. Sumerlin, 393 Mass. at 129‑130,
469 N.E.2d 826.
With the
defendant now in plain view, the trooper asked the defendant to open his coat
so the trooper could satisfy himself that the defendant was not concealing
anything. This limited order‑‑rather
than an immediate frisk‑‑again was the least intrusive means of
pursuing the inquiry. See Commonwealth v. Moses, 408 Mass. 136,
141, 557 N.E.2d 14 (1990) ("The degree of intrusiveness that is permitted
is that which is 'proportional to the degree of suspicion that prompted the
intrusion.' "). The defendant
complied, revealing the outline of a handgun in his right leg area. Coleman, now with every good reason to be
fearful of the armed person in front of him, drew his own weapon and told the
defendant not to move. Then, with the
back‑up of one of
the other officers, Coleman seized the defendant's handgun.
The
defendant's motion to suppress the weapon was properly denied.
[4] 2. The motion for a required finding. The handgun seized by Coleman, the defendant
argues, did not constitute a "firearm" as defined in G.L. c. 140, § 121, because the handgun, with a broken
firing pin, was incapable of discharging a bullet. The Commonwealth's evidence showed that
replacing the broken [44 Mass.App.Ct. 403]
firing pin with a new one was a "simple task," requiring, in the
opinion of an expert witness, only ten or fifteen minutes. The judge credited this testimony, and found
that "a slight repair, replacement, or adjustment could make this weapon
effective as a firearm...." On that
basis, the judge found sufficient facts to warrant a finding of guilty,
impliedly denying the defendant's motion for a required finding of not guilty. There was no error. See
Commonwealth v. Bartholomew, 326 Mass. 218, 220, 93 N.E.2d 551 (1950) (The
court held that an easily replaceable firing pin did not destroy the character
of the weapon or a machine gun.
"While it may be conceded that a weapon designed for firing
projectiles may be so defective or damaged that it has lost its initial
character as a firearm, [citation omitted], this character is not lost when a
relatively slight repair, replacement, or adjustment will make it an effective
weapon.").
Judgments affirmed.
(FN1.) The defendant's first argument is that
the sentence imposed was an illegal sentence.
The argument is based on an error in the transcript provided by the
Commonwealth. In fact, the trial judge
had listened to the tape of the proceedings (i.e., his own voice), recognized
that there was an error in the record regarding sentencing, and immediately
corrected the error. Subsequently he
allowed a motion correcting the record of sentencing. There was no illegal sentence, and the
judge's allowance of the motion to correct the record put an end to the
matter. See Mass.R.A.P.
8(e), as amended, 378 Mass. 932 (1979) (disputes regarding the record are
"settled" by the court in which the trial took place).
(FN2.)
The defendant made no claim that he had a license to carry the weapon, or a
firearms identification card to possess the weapon. See
Commonwealth v. Tuitt, 393 Mass. 801, 810, 473
N.E.2d 1103 (1985) ( " 'the burden is on the defendant' to come forward
with evidence of a license").
(FN3.)
Since, at some point not identified in the record, the operator of the vehicle
was unable to produce a license to operate, we put to one side cases such as Commonwealth v. Torres, 424 Mass. 153,
674 N.E.2d 638 (1997), which hold that police inquiries attendant upon routine
traffic stops must end with the production of a valid license and registration. Id.
at 158, 674 N.E.2d 638.
(FN4.)
Contrast Commonwealth v. Santana, 420
Mass. 205, 212, 649 N.E.2d 717 (1995) ("When police are justified in
stopping an automobile, they may, for their safety and the safety of the
public, order the occupants to exit the automobile").
(FN5.)
In some circumstances, the opening of a car door may not require any
justification, as was suggested in
Commonwealth v. Leonard, 422 Mass. 504, 508‑509, 663 N.E.2d 828
(1996). But in Leonard, as the court noted, there was in fact ample justification
in the apparent illness of an unresponsive driver, ibid., a justification rooted in the so‑called community
caretaking function. The Leonard case is discussed more fully in Commonwealth v. Canavan,
40 Mass.App.Ct. 642, 647‑649, 667 N.E.2d 264
(1996).
(FN6.)
The defendant had effectively been stopped when the vehicle in which he was
riding was stopped by the police.