83 Mass. App. Ct. 156 (2013)
Procedural History
In the Superior Court of Norfolk
County, defendant was convicted of possession of an explosive device and two
counts of improper storage of a firearm, and acquitted two other charges of
improper storage of a firearm. The defendant appealed. The Appeals Court of
Massachusetts affirmed the order denying motion to suppress.
Factual Summary
A
maintenance employee at the defendant’s apartment complex was called to the
defendant’s apartment to determine if it was the source of a gas smell in his
building. The defendant did not answer the employee’s knock. A technician from
a gas company also responded and spent two to three hours trying to locate the
source of the odor. He focused on the defendant’s unit and knocked on the door.
The defendant said that he did not feel well even when the technician told him
it was an emergency. The defendant refused the technician entry. They called
the police because they had to get into the apartment.
Two police
officers arrived and knocked on the door. Even after spending several minutes
explaining the reason for their presence, the defendant refused to open the
door. Finally, when the police threatened to break down the door, the defendant
opened it two inches. One officer put her foot in the door and the technician
was able to insert his measuring device into the apartment. The reading
displayed “explosive levels” of gas inside the apartment. Because of this
urgent matter, the officer told the defendant they were coming in and she
forced entry into the unit. They immediately went to the stove, shut the gas
off and opened the windows. After about ten to twenty minutes, the technician
determined that the gas had dissipated and that the air quality was safe. The
technician advised the defendant to be more careful, and they left. He testified
that to shut off the gas to the stove, it would have to be shut off from inside
the apartment. No one who entered the apartment reported seeing any firearms
inside.
The following
day of the incident, a senior community manager of the defendant’s apartment
complex communicated with the police officers, and they explained what had
occurred this time along with a previous similar incident and other incident
with a police report that the defendant was carrying a firearm and ammunition
when the defendant had a motor vehicle accident. After this conversation, the
attorney for the apartment management responded and immediately went to court for
an order to shut off the gas to the stove. The attorney also advised the senior
manager to immediately deliver a notice to the defendant that his apartment
would be inspected the following day and she complied. She called a constable
and the police to protect the constable and maintenance personnel who were
assigned to shut off the gas to the stove inside the apartment. The police
initially tried subterfuge to get the defendant out of his apartment but this
did not work. Finally they went to the defendant’s door and knocked on the
door, identifying them as Weymouth police. After the police kept knocking, the
defendant finally cracked the door open about two inches.
Sergeant
Burke could see only one of the defendant’s hands holding the door. Burke asked
to see the defendant’s other hand and did not believe the defendant’s assertion
that it was holding the door because Burke felt the defendant’s foot pressing
against the door, not his hand. Burke suspected from the defendant’s position
that he was holding a gun with the other hand. Burke continued to urge the
defendant to show the other hand and the defendant finally complied. At that
moment, Burke pressed on the door and grabbed the defendant’s left hand while
another officer moved in and grabbed his right hand. A third officer grabbed the
weapon that the defendant had in a holster on his right side. The gun was
loaded and in a position ready to be fired. Burke tried to handcuff the
defendant, but he resisted. After Burke told him they had a court order, he
finally was able to handcuff the defendant. Burke noticed a loaded, unsecured
firearm on top of cases of water jugs directly behind the defendant. Burke also
saw what looked like a machine gun leaning on the outside wall of bedroom. Burke
and another officer approached the weapons and secured them. Burke could also
see a fourth unsecured weapon on the floor of the bedroom that looked like a
machine gun with a magazine holing over one hundred rounds. From the location
of the machine gun, the bedroom closet was visible. The door of the closet was
open, revealing more firearms, boxes of ammunition, and an open safe with
additional firearms inside. The defendant was arrested for improper storage of
firearms and was removed from the apartment. While officer Ficarra was making
the weapons completely safe, he observed a partially open backpack in the
living room and inside he recognized what he believed to be a bomb.
The Appeals Court held (1) that
police entry into the defendant’s apartment was justified because in
circumstances of emergency or where the police are exercising their community
caretaking functions, police may enter premises or make seizure without a
warrant or probable cause. The Court held (2) that it was reasonable for the
police to seize the defendant and secure him with handcuffs until the purpose
for their visit could be accomplished because the evidence that at the door in
response to their knocking the police heard the defendant walking from the
front to the rear of the apartment and back to the front door, in conjunction
with knowledge of a history of defiant behavior and his possession of firearms,
created suspicion that when the defendant finally cracked open the door two
inches, he was armed. The Court held (3) that under the plain view doctrine,
the firearms and explosive device were lawfully seized because Officer
Ficarra’s observation that he saw what immediately appeared to him to be a bomb
in a backpack that was partially open during he was securing other firearms,
was within the scope of the plain view doctrine. The Court found (4) sufficient
evidence supporting that explosive device was capable of detonation in that
Ficarra saw a gray metal container with a rag and a lengthy coil of hobby fuse
on top, and the fuse going inside the can under the rag. The Court held (5)
that the evidence was sufficient to sustain the charges of improper storage
under the statue in that the gun leaning against outside of bedroom wall and the
gun on the bedroom floor were not within the immediate reach of the defendant
because the apartment was so cluttered that the defendant’s access to those
weapons was made too difficult. Finally, the Court held (6) that requirement of
“control” in improper storage statue did not violate the defendant’s Second
Amendment rights because the defendant was not charged with any offense related
to carrying a loaded firearm in a holster on his person when he answered the
door, and he is not convicted of any crime related to the second loaded firearm
that was immediately behind him. Those weapons were clearly under the
defendant’s control.
Written 7/9/2013
