Facts:
A group of Boston police officers went to the defendant’s
home to arrest him for a trespass charge. When the defendant answered the door
in his underwear, the officers told him they were there in regards to the
warrant for his arrest. The defendant asked to be able to get dressed, he was
allowed to with the supervision of the officers. In his bedroom, due to their
prior knowledge of his record referencing charges involving a firearm, the
officers were to retrieve his pants from the closet as a safety measure. One
officer found it odd that as the officers were obtaining the defendant’s pants,
the defendant was not sitting on the part of the bed nearest to the close. A
protective sweep was conducted and this sweep revealed no firearm. Only after
the defendant was told to get up, get dressed and the mattress was lifted was a
firearm found. The officers were aware that the defendant was not allowed to
have a firearm due to their reading of his record before the incident. However,
the firearm was not taken into possession at the time; it was only after a
search warrant was issued that the firearm was seized.
Procedural History:
The Boston Municipal Court allowed a motion to suppress a
firearm that Boston police confiscated.
Issue:
Did the Judge err in allowing the defendant’s motion to
suppress?
Discussion:
Yes. The Judge used the first part of G.L. c. 276 §1, which allows
the seizure of “evidence of the crime for which the arrest has been made” and
due to the fact that the gun was not evidence of the crime which he was being
arrested for, i.e. the trespassing, the gun was considered by the judge to not
fall under the above quoted law. However, if the second part of G.L. c. 276 §1
is considered, when making an arrest, a search is allowed in order to
“remov[e] any weapon that the arrestee might use to resist arrest or effect his
escape.” Furthermore, because the gun was not found when a sweep of the room
was done, but rather when an officer noticed the unusual behavior of the
defendant, it was reasonable that an officer would proceed in searching the
area where the defendant was sitting after witnessing the his strange actions.
Lastly, the gun was in “the one lunge zone” and thus giving rise to the
permissibility to remove such a weapon, as it could have easily have been used
to “resist arrest or effect [an] escape”.
Judgment:
Reversed the order of suppression. (DQ).
