401 Mass. 745 (1988), Commonwealth v. Brown

• Citation: 401 Mass. 745, 519 N.E.2d 1291
• Party Name: COMMONWEALTH v. Solomon BROWN.
• Case Date: March 02, 1988
• Court: Supreme Judicial Court of Massachusetts

Page 745

401 Mass. 745 (1988)

519 N.E.2d 1291

COMMONWEALTH

v.

Solomon BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1988

Argued Jan. 4, 1988.

William M. Leonard, North Scituate, for defendant.

Kevin J. Ross, Asst. Dist. Atty., for the Com.

LYNCH, Justice.

The defendant was found guilty of carrying a firearm without a license after a trial de novo in the jury session of the Boston Municipal Court. The defendant waived a jury, and the case was decided by a judge. The defendant filed a timely appeal and we took the case on our own motion. We reverse.

The only issue that need concern us is the denial of the defendant's motion for a required finding of not guilty on the charge of illegal carrying of a firearm.

Viewing the evidence at trial, as we must, in the light most favorable to the [519 N.E.2d 1292] Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), we summarize the facts. The Commonwealth's witness, Sergeant Paul Matthews of the Boston

Page 746

Housing Authority police, testified that on November 22, 1985, at 9:30 A.M., while on patrol on Parker Street in the Mission Hill Housing Project (project) he observed the defendant urinating behind a dumpster near the corner of Parker Street and Horradon Way. Matthews continued on Parker Street and at some point turned around and came back down Parker Street toward Horradon Way.

The defendant, in the meantime, had gotten back into a 1985 Ford Thunderbird automobile and started driving down Parker Street in the same direction Matthews was then heading. There was a passenger in the defendant's automobile. Matthews' unmarked cruiser was directly behind the defendant's automobile. The defendant turned right on Prentiss Street, at which point Matthews activated the police cruiser's blue warning light and siren. He then saw both occupants of the Thunderbird bend over in unison. At this point Matthews' cruiser was still on Parker Street and the defendant's automobile was on Prentiss Street. Matthews said that he saw this movement by the occupants through the rear window and passenger window of the Thunderbird.

When the Thunderbird came to a stop, Matthews got out of his cruiser and approached the defendant's automobile. He went to the driver's side and asked the defendant for his license and registration. The defendant handed him a valid driver's license and a photocopy of a car rental agreement. Matthews radioed in the license plate number for a stolen motor vehile check, and for a warrant check on the defendant. Matthews received information that the automobile, which was owned by Avis car rental company, had been reported stolen. Matthews then radioed for backup and remained in his police cruiser until several other Boston Housing Authority police officers arrived.

When the other officers arrived, Matthews again approached the defendant's automobile. He stated at trial that it was his intention at this time to arrest the defendant and the passenger for larceny of a motor vehicle. Matthews went to the driver's side and ordered the defendant to get out. Another officer, Sergeant Steven Sullivan, ordered the passenger to get out.

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After the defendant had been removed from the vehicle, Matthews searched it and found two loaded handguns under the front passenger seat. Both the defendant and the passenger were placed under arrest for unlawful carrying of a firearm and larceny of a motor vehicle.

The defendant claims that the...