Commonwealth v. Nathaniel Depina, MARCH 10, 2010
456 Mass. 238
Firearms, Search and seizure, Investigatory stop
The defendant was convicted of illegal possession of a firearm. On appeal he argued the motion judge erred in the denial of his motion to suppress. The SJC disagreed and affirmed the conviction.
Police officers received a radio broadcast of a person shot. An anonymous 911 caller said she did not see the shooting but heard three shots and saw a “tan” colored “kid” running from the area. He was wearing a white T-shirt, blue “jean” shorts, and a hat. The police saw the defendant within ten minutes of the shooting, two to three blocks from the shooting scene. He was wearing a white T-shirt and dark shorts. The police stopped the cruiser in the middle of the street near the defendant, and left the cruiser to approach him. Two of the officers were Troopers, wearing T-shirts marked with State police emblems, the third officer wore a T-shirt marked “FBI” on the front. All three wore shirts printed with the words “Gang Unit.” The defendant, who was pedaling a foot scooter, reversed his direction and proceeded to pedal away from the approaching officers. One of the troopers’s said, in a normal voice, “Can I talk to you? Can you come over here?” The defendant stopped, looked over his shoulder at the trooper, and made quick motions with his hands in the area of his waistband. The officers then heard an object hit the ground; one officer immediately grabbed the defendants hands while the other officer located the object, which was a gun.
The defendant argued he was seized once the trooper asked to speak with him, and at that moment, the police did not have reasonable suspicion to justify the stop. The Commonwealth argued that the stop did not take place until the trooper grabbed the defendant’s hands after hearing the metallic clang of a dropped firearm. The SJC held that when “three armed officers wearing ‘Gang Unit’ shirts emerged from a single vehicle and pursued the defendant, continuing to close in on him even after he reversed direction to avoid them, a reasonable person would have believed that he was not free to ignore the troopers request that he ‘come over here’ to answer questions.”
The SJC denied the motion to suppress the gun because the police had specific and articulable facts to conduct a Terry stop. The information provided by the anonymous caller along with the observations made by the officers provided the basis for a valid stop. The Courts review of the telephone call supported the motion judge’s determination that the caller’s information was based on personal observations. The caller reported that she heard gunshots, looked into the backyard, and saw the person she described fleeing the scene of the shooting. An eyewitness’s report to police of her recent, firsthand observations satisfied the basis of knowledge prong.
The reliability prong can be satisfied by police corroboration of the caller’s information. Here, however, her description was so general that it would not be fair to conclude that her report was reliable by police observations of a person matching the general description in the area of the shooting. Nonetheless the Court found the caller’s information was reliable because of the excited nature of the telephone call, which reasonably negated premeditation or fabrication.
The fact that the caller’s report satisfied the basis of knowledge test and the veracity test meant the information transmitted by the dispatcher to the officers bore sufficient indicia of reliability that the officers were entitled to rely on the dispatch in conducting their investigation. It did not necessarily mean, however, that the description of the suspect transmitted by the police dispatcher was sufficiently detailed and particularized that it was reasonable for the police to stop any person matching that general description. Here the police had reasonable suspicion to stop the defendant because first, the defendant was seen, about ten minutes after the shooting within three blocks of the crime scene and was moving away from the area of the shooting. Second, when the officer called out to him, the defendant reversed direction and began to move away from the officers. Third, the officers were looking for someone who may have shot another person a few blocks away about ten minutes earlier. The gravity of the crime and the present danger of the e circumstances may be considered in the reasonable suspicion calculus.
In sum, the Court concluded the police had reasonable suspicion to justify an investigatory stop of the defendant. Physical proximity, closeness in time, the defendant’s obvious effort to avoid encountering the police, and the danger to public safety supplemented the less than distinctive physical description relayed in the police dispatch.
Ballistician’s certificate
The Commonwealth argued that the erroneous admission of the ballistics certificate was harmless beyond a reasonable doubt. The SJC stated the error was harmless beyond a reasonable doubt because the lawfully admitted evidence that the revolver was a firearm was overwhelming. The revolver was loaded with four live rounds and one spent casing. The compelling inference from the testimony was that the spent casing remained after the firearm was discharged. The evidence that three of the live rounds sent to the police were returned as spent projectiles eliminated the remote possibility of some other explanation
Firearms, Constitutional Law
The defendant argued the firearm conviction should be reversed because the statutory scheme requiring a license to carry a firearm impermissibly infringed his individual, constitutional right to keep and bear arms under the Second Amendment. The SJC recognized that in Heller, the U.S. Supreme Court announced for the first time that the Second Amendment protects a limited, individual right to keep and bear firearms for the purpose of self-defense, not simply a collective right to possess and carry arms for the purpose of maintaining a State militia. The SJC concluded, however, that based on current Federal law, the Second Amendment does not apply to the States the Fourteenth Amendment. The defendant’s challenge likewise failed under the Massachusetts Constitution because art. 17 was intended to provide for the common defense and does not guarantee an individual right to keep and bear arms.
