Commonwealth v. Fisher

763 N.E.2d 1106, 54 Mass. App. Ct. 41, 2002 Mass. App. LEXIS 256
CourtMassachusetts Appeals Court
DecidedFebruary 25, 2002
DocketNo. 00-P-1066
StatusPublished
Cited by25 cases

This text of 763 N.E.2d 1106 (Commonwealth v. Fisher) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fisher, 763 N.E.2d 1106, 54 Mass. App. Ct. 41, 2002 Mass. App. LEXIS 256 (Mass. Ct. App. 2002).

Opinion

Cohen, J.

During a stop and frisk by the police, the defendant was found to be in possession of a sawed-off rifle, seven individually wrapped bags of marijuana, and a marijuana cigar. In the ensuing criminal proceedings, the defendant’s motion to suppress these items was denied by a judge of the District Court. A jury-waived trial was held before a different District Court judge, who found the defendant guilty of possession of a firearm without a license in violation of G. L. c. 269, § 10(a); possession of a firearm or ammunition without a firearm identification card in violation of G. L. c. 269, § 10(A); and possession of marijuana in violation of G. L. c. 94C, § 34.1

The defendant argues on appeal that it was error for the motion judge to deny his motion to suppress, that he was denied due process because of a lengthy delay in the preparation of the transcript of proceedings in the District Court, and that the evidence was insufficient to sustain his conviction under G. L. c. 269, § 10(A), as it then existed. On this last point, the Commonwealth concedes, and we agree, that reversal is necessitated by Commonwealth v. Alvarado, 423 Mass. 266, 267 n.1 (1996).2 We therefore confine our discussion to the suppression and transcript preparation issues.

1. The motion to suppress. When reviewing the trial court’s action on a motion to suppress, “we accept the motion judge’s subsidiary findings of fact absent clear error.” Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). We also “show substantial deference to the judge’s legal conclusions, . . . but [43]*43independently review the application of constitutional principles to the facts” (citation omitted). Commonwealth v. Torres, 433 Mass. 669, 671-672 (2001). Where, as here, it is evident that the motion judge has found the testifying police officer, who was the sole witness at the hearing, to be entirely credible, we refer not only to the motion judge’s findings but also to the officer’s uncontroverted testimony supporting those findings. See Commonwealth v. Alvarado, supra at 268 n.2. Compare Commonwealth v. Scott, 52 Mass. App. Ct. 486, 492 (2001).

With those principles in mind, we summarize the judge’s findings and other testimony from the suppression hearing. On April 13, 1996, at about 11:05 p.m., two uniformed officers of the Lynn police department, Officer Paul Holey and his partner, were on patrol in a marked police cruiser. The area in which they were driving was known by Holey to be a so-called “high crime area” where drug and firearms offenses were common. During his three years on the Lynn police force, Holey had responded personally to many gun-related calls in the area. In fact, less than one-half hour earlier, Holey and his partner had been called to assist another police unit in responding to a gun-related call on the same block as the incident involving the defendant.3

As the officers drove in the vicinity of Western Avenue and Franklin Street, Holey noticed three men, including the defendant, walking toward the cruiser. The three men looked at the cruiser, then abruptly “did a U-tum” and began walking away at a fast pace. The officers turned down Franklin Street in the same direction that the three men were headed, and pulled the cruiser over to the sidewalk, a few feet away from the defendant. The defendant, who was wearing a jacket that was “zipped down,” looked at the officers and made a gesture that Holey first described as “a quick movement with his left hand to his waist area,” and later characterized as “a quick movement into his waist area” (emphases supplied).

Believing that the defendant was reaching for a weapon, Holey immediately got out of the cruiser, approached the defendant and patted him down. The officer detected a hard [44]*44object in the defendant’s waistband and could feel that it had a trigger mechanism. Holey retrieved the object, which was a sawed-off rifle, and placed the defendant under arrest. A further search of the defendant disclosed a quantity of what the officers believed to be marijuana.

A protective frisk of a defendant is justified where an officer reasonably believes the defendant is armed and dangerous. See Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). Here, the motion judge determined that Holey had a reasonable belief that the defendant was posing a danger to the police and others by attempting to draw a weapon and that it was therefore appropriate for the officer to approach the defendant and perform an immediate patfnsk. We agree that the aggregated circumstances — the evasive reaction of the defendant and his cohorts to the presence of the police, the fact that the episode took place at a late hour in a high crime area that was known for the presence of illegal firearms, and the defendant’s quick motion to his waist — gave Holey a reasonable basis to conduct a protective frisk. We reach this conclusion even though individual elements of the situation would not have been enough to warrant police intervention. “[A] combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief.” Id. at 545, citing United States v. Sokolow, 490 U.S. 1, 9-10 (1989). See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992) (“[e]valuation of the propriety of a frisk search . . . involves the whole picture”).

We first consider the significance of the attempt by the defendant and his companions to avoid contact with or observation by the police. Although such behavior is not enough standing alone to justify a reasonable suspicion, it may be considered along with other factors. See Commonwealth v. Wren, 391 Mass. 705, 707-708 & n.2 (1984); Commonwealth v. Moses, 408 Mass. 136, 140 & n.3 (1990); Commonwealth v. Mercado, 422 Mass. 367, 371 (1996); Commonwealth v. Grandison, 433 Mass. 135, 139-140 (2001). In the relatively straightforward circumstances presented in this case, it is a factor deserving of some weight.

Here the defendant and his companions looked at the patrol car and reacted to its presence by suddenly reversing direction and quickly walking away. Thus, the evasion was unprovoked [45]*45and “not in reaction to an incursion by the police.” Commonwealth v. Harkess, 35 Mass. App. Ct. 626, 632 (1993). Moreover, it was not simply coincidental: the men turned on their heels after directing their gaze at the patrol car, thus clearly manifesting a motivation to avoid police observation. To be sure, it remained possible that the men’s underlying reason for avoiding the police was innocent; but on these facts there is no reason to doubt that, without provocation, the men deliberately sought to evade police presence.4

We next consider the character of the neighborhood where the incident took place. Again, this is a factor insufficient in itself to provide reasonable suspicion to justify the patfnsk. See Commonwealth v. Thompson, 427 Mass. 729, 734, cert. denied, 525 U.S. 1008 (1998).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Sidney Pires Fonseca.
Massachusetts Appeals Court, 2025
Commonwealth v. Jones-Pannell
10 N.E.3d 639 (Massachusetts Appeals Court, 2014)
Commonwealth v. Famania
946 N.E.2d 135 (Massachusetts Appeals Court, 2011)
Commonwealth v. Narcisse
927 N.E.2d 439 (Massachusetts Supreme Judicial Court, 2010)
Commonwealth v. Mathis
922 N.E.2d 816 (Massachusetts Appeals Court, 2010)
Commonwealth v. Johnson
908 N.E.2d 729 (Massachusetts Supreme Judicial Court, 2009)
Commonwealth v. Gomes
903 N.E.2d 567 (Massachusetts Supreme Judicial Court, 2009)
Commonwealth v. Narcisse
898 N.E.2d 507 (Massachusetts Appeals Court, 2008)
Commonwealth v. Jackson
898 N.E.2d 510 (Massachusetts Appeals Court, 2008)
Commonwealth v. Santiago
896 N.E.2d 622 (Massachusetts Supreme Judicial Court, 2008)
Commonwealth v. Knowles
883 N.E.2d 941 (Massachusetts Supreme Judicial Court, 2008)
Commonwealth v. Isaiah I.
882 N.E.2d 328 (Massachusetts Supreme Judicial Court, 2008)
Commonwealth v. Nunez
877 N.E.2d 601 (Massachusetts Appeals Court, 2007)
Commonwealth v. Sykes
867 N.E.2d 733 (Massachusetts Supreme Judicial Court, 2007)
Commonwealth v. Rucker
21 Mass. L. Rptr. 718 (Massachusetts Superior Court, 2006)
Commonwealth v. Nestor N.
852 N.E.2d 1132 (Massachusetts Appeals Court, 2006)
Commonwealth v. DePeiza
848 N.E.2d 419 (Massachusetts Appeals Court, 2006)
Commonwealth v. Ortega
804 N.E.2d 345 (Massachusetts Supreme Judicial Court, 2004)
Commonwealth v. Silva
802 N.E.2d 535 (Massachusetts Supreme Judicial Court, 2004)
Commonwealth v. Rupp
783 N.E.2d 475 (Massachusetts Appeals Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
763 N.E.2d 1106, 54 Mass. App. Ct. 41, 2002 Mass. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fisher-massappct-2002.