Commonwealth v. Johnson

729 N.E.2d 306, 49 Mass. App. Ct. 273, 2000 Mass. App. LEXIS 429
CourtMassachusetts Appeals Court
DecidedMay 30, 2000
DocketNo. 98-P-2230
StatusPublished
Cited by6 cases

This text of 729 N.E.2d 306 (Commonwealth v. Johnson) 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. Johnson, 729 N.E.2d 306, 49 Mass. App. Ct. 273, 2000 Mass. App. LEXIS 429 (Mass. Ct. App. 2000).

Opinion

Porada, J.

After a jury trial in the Superior Court, the defendant was convicted of discharging a firearm within 500 feet of a dwelling, unlawful possession of a handgun, unlawful possession of ammunition, failure to stop for a police officer, and operating a motor vehicle negligently so as to endanger the [274]*274public. On appeal, the defendant claims that his convictions should be reversed because (1) the motion judge erred in denying his motion to suppress as evidence the handgun and ammunition, and (2) the trial judge erred in admitting in evidence an affidavit executed by the defendant’s former girlfriend to obtain a restraining order under G. L. c. 209A against him. We affirm the judgments of conviction.

1. Motion to suppress. The defendant claims that the judge erred in denying his motion to suppress because at the time a police officer began his pursuit of the vehicle driven by the defendant, the officer lacked a “reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the . . . motor vehicle had committed, was committing, or was about to commit a crime,” Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996), and, thus, the subsequent seizure of the handgun and ammunition should be suppressed as fruits of the illegal stop. The motion judge ruled, however, that at the time the pursuit began the police officer had sufficient information to conduct an investigative stop of the vehicle under the principles of Terry v. Ohio, 392 U.S. 1 (1968). We recite the judge’s findings of facts on which she based her ruling, supplemented by uncontroverted testimony of the police officers at the suppression hearing.

Sergeant Cabral of the Somerville police department was on routine patrol at about 4:00 a.m. when he received a radio call of shots being fired in the area of 102 Broadway Street. He went directly to the area, where he spoke with George Halley of 9 Dell Street in Somerville. Halley told the officer that he was at an automated teller machine across the street from 102 Broadway when he heard shots coming from the area of 102 Broadway and saw an older blue Oldsmobile with a white top pull away from 102 Broadway. Halley informed Sergeant Cabral that he believed the shots came from the Oldsmobile. Sergeant Cabral also spoke with Jeffrey Gates, who resided above the grocery store and hair salon located at 102 Broadway. Gates told the officer that he was awakened by an alarm going off in the grocery store and hair salon and that he went downstairs to shut off the alarm. Upon his return, he heard several shots and told his wife to call the police. A general bulletin was broadcast by the Somerville police to look for an older blue Oldsmobile with a white top that might have been involved in a shooting. Approximately forty-five minutes later, [275]*275one and one-half miles from 102 Broadway Street, Sergeant Cabral observed an older blue Oldsmobile with a white top traveling west on Broadway and radioed for assistance. When a backup unit arrived, he put on his lights and directed the vehicle to stop. Instead, the driver of the Oldsmobile accelerated to speeds of thirty-five to fifty-five miles per hour. While Sergeant Cabral was in pursuit, he saw the driver drop an object, which he believed to be a gun, out of the window. The Oldsmobile finally stopped when it hit a State police cruiser which was part of a roadblock created to stop the vehicle. The defendant was the driver and sole occupant of the car. After removing the defendant from the car, Sergeant Cabral placed him under arrest for failure to stop for a police officer. Sergeant Cabral then searched the car without a warrant and found a box of ammunition located in the front between the driver’s and passenger’s seats and two cartridges on the floor in the back. Another police officer retrieved a handgun from the street where Sergeant Cabral had seen the driver throw an object out of the car.

Where Sergeant Cabral had received a report from a disinterested citizen that gunfire had been discharged from an older blue Oldsmobile with a white top in the vicinity of 102 Broadway Street in a residential and commercial neighborhood at 4:00 a.m., and where Sergeant Cabral saw a vehicle that fit the description in the report some forty-five minutes later traveling west on Broadway Street about one and one-half miles from 102 Broadway, we decide that the judge properly concluded that these facts gave rise to a reasonable suspicion that the defendant’s car might have been involved in the shooting, thus justifying an investigative stop and inquiry. Cf. Commonwealth v. Alvarado, 427 Mass. 277, 281-284 (1998) (police officers were warranted in stopping a motor vehicle for an investigative inquiry where a disinterested citizen had reported that a front seat passenger in the vehicle had an apparent sawed-off shotgun in his possession, which by itself posed an imminent threat to public safety). See Commonwealth v. Stawarz, 32 Mass. App. Ct. 211, 213 (1992) (reasonable suspicion for stop where police observed vehicle about an hour after and one and one-half miles from the place where a similarly described vehicle was reported stolen). As in Commonwealth v. Alvarado, 427 Mass. at 283, the nature of the citizen’s report here disclosed an imminent danger to public safety warranting at least an investigatory stop of the defendant’s vehicle where it fit the description of the car [276]*276in the report and was observed in both physical and temporal proximity to the scene of the shooting. Because the stop of the defendant’s car was legal, the motion judge properly rejected the defendant’s argument that the gun, ammunition, and cartridges should be suppressed as the fruits of the illegal stop.

The defendant also argues that the ammunition and cartridges found in the car should have been suppressed because the search of the defendant’s car was conducted by Sergeant Cabral without a warrant. The search occurred after the defendant had been removed from his car and placed under arrest for failure to stop for a police officer and, thus, the defendant argues, it could not have been justified as a search incident to arrest. Although the motion judge made no written findings relating to the search of the automobile and seizure of the ammunition and cartridges, she indicated at the conclusion of the hearing that she was going to deny the motion to suppress this evidence based on the prosecutor’s argument. The prosecutor had argued alternatively that the warrantless search of the car was justified as an inventory search, which the defendant does not challenge, or as a search for evidence of the crime initiating the police officer’s pursuit, namely the discharging of a firearm within 500 feet of a dwelling. The motion to suppress was properly denied because Sergeant Cabral would have had probable cause to search the car for evidence of the crime which resulted in his initial pursuit of the defendant’s vehicle, namely the discharging of a firearm within 500 feet of a dwelling. At the time of the search, Sergeant Cabral knew that a witness had reported gunfire from a vehicle matching the description of the defendant’s car, and he had seen the defendant discard what he believed to be a gun and flee from his pursuit. This information gave Sergeant Cabral probable cause to search the vehicle for evidence of the crime resulting in the pursuit. Contrast Commonwealth v. Toole, 389 Mass.

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Cite This Page — Counsel Stack

Bluebook (online)
729 N.E.2d 306, 49 Mass. App. Ct. 273, 2000 Mass. App. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-johnson-massappct-2000.