Com. v. Alan A., No. 97-P-579

CourtAppeals Court of Massachusetts
Writing for the CourtSMITH
Citation712 N.E.2d 1157,47 Mass.App.Ct. 271
Decision Date12 July 1999
Docket NumberNo. 97-P-579
PartiesCOMMONWEALTH v. ALAN A., a juvenile.

Page 1157

712 N.E.2d 1157
47 Mass.App.Ct. 271
COMMONWEALTH

v.
ALAN A., a juvenile.
No. 97-P-579.
Appeals Court of Massachusetts,
Plymouth.
Argued Oct. 19, 1998.
Decided July 12, 1999.

Page 1158

Mathew V. Soares, Brookline, for the Juvenile.

Gail M. McKenna, for Assistant District Atty., for the Commonwealth.

Present: BROWN, GILLERMAN & SMITH, JJ.

SMITH, J.

As a result of an incident occurring in mid-September, 1996, the juvenile was charged with (1) breaking and entering in the nighttime with intent to commit a felony, (2) larceny of a firearm and (3) carrying a firearm without a license.

Page 1159

[47 Mass.App.Ct. 272] Prior to trial, the juvenile filed two motions in limine to exclude certain statements which he allegedly made to the police. 1 The judge properly considered the motions to be suppression motions. See Commonwealth v. Whelton, 428 Mass. 24, 25-26, 696 N.E.2d 540 (1998). He held an evidentiary hearing and denied both motions.

After a bench trial, the juvenile was found not delinquent on the breaking and entering charge but delinquent on the two firearm charges. He exercised his right to a de novo jury trial and at the conclusion of the trial, a jury adjudicated him to be delinquent on both outstanding charges. The juvenile was committed to the Department of Youth Services. The juvenile appealed.

The juvenile's principal claim on appeal is that his statements should have been suppressed because after he received his Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ), he was not given the opportunity to consult with his parents or an interested adult. 2

1. The juvenile's first statement. We summarize the facts found by the judge in regard to the statement that the juvenile made at the time of his arrest. On September 12, 1996, the juvenile's father reported to the West Bridgewater police that the juvenile, his son, had run away from home taking the father's handgun. The father told the police that Colleen S. was a friend of his son and he believed his son to be in her company. The police began a surveillance of Colleen S.'s home. Colleen S. was located by the police and she told them that she had seen the juvenile earlier. He had a gun which he showed to her. The juvenile allowed her to hold it after having unloaded it but then reloaded the gun after she gave it back to him. Colleen S. also stated that the juvenile still possessed the weapon and kept it on his person.

Later in the day, the police received a message that the [47 Mass.App.Ct. 273] juvenile was presently inside Colleen S.'s home. They immediately went to that address. As they approached the house they saw Colleen S. and another person looking out of the window. There was a note taped to the door which said "gone shopping."

One of the officers knocked on the door several times. No one responded. One of the officers then went to a window and spoke loudly to the persons inside the house about the seriousness of the situation. Within a few minutes Colleen S. opened the door and told the officers that the juvenile was in the living room. The officers entered the kitchen. They could not see into the living room. Both officers drew their weapons and ordered the juvenile into the kitchen. When he entered the room, the officers noticed that he did not have a gun in his hand.

He was ordered to lie face down on the floor and was handcuffed. One of the officers advised the juvenile of his Miranda rights and asked whether the juvenile understood them. The juvenile stated that he did understand them. The officer asked the juvenile, "Where's the gun?" The juvenile replied, "I don't have it anymore." 3 A search of the home for the gun was fruitless.

At the hearing and on appeal, the Commonwealth argued that the juvenile was not entitled to be given an opportunity to consult with his parents or interested adult because of the "public safety" exception to the Miranda rule, citing New York v. Quarles, 467 U.S. 649, 656-657, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). 4

Page 1160

Based on the evidence, the judge found that at the time the [47 Mass.App.Ct. 274] officer questioned the juvenile concerning the location of the gun, the officer did not know whether the firearm was on the juvenile's person or whether another person could gain access to it. The judge also found that the police reasonably feared that if the firearm were not secured immediately, the juvenile would harm himself or others who were present. Moreover, the judge found that the question was limited to the discovery of the gun, and was not designed to elicit testimonial evidence from the juvenile. See New York v. Quarles, 467 U.S. at 658-659, 104 S.Ct. 2626. The judge ruled that the "public safety" exception was applicable and therefore, by implication, the juvenile was not even entitled to be given his Miranda warnings or an opportunity to consult with an "interested adult" before he waived his constitutional rights. On appeal, the defendant raises two issues. The first is that the "public safety" exception did not apply because the evidence did not support the judge's findings that the police reasonably feared that they and others were in danger unless the gun was found. 5 The juvenile also claims that his statement was involuntary.

The juvenile's argument is based on his own view of the credibility of the police witnesses. However, "the determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not [the appellate] court." Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). We will not substitute our judgment for that of the finder of fact. Commonwealth v. Mello, 420 Mass. 375, 384, 649 N.E.2d 1106 (1995). Further, the judge's findings were clearly supported by the record.

There was testimony that the police knew the defendant had been in recent possession of a loaded gun. At the time the officer asked the juvenile the challenged question, the police had not searched the house and, therefore, did not know if the gun was still on the premises or if...

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15 practice notes
  • Com. v. Guthrie G., No. 05-P-47.
    • United States
    • Appeals Court of Massachusetts
    • June 5, 2006
    ...to Miranda set out in New York v. Quarles, 467 U.S. 649, 655-656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984),2 and Commonwealth v. Alan A., 47 Mass. App.Ct. 271, 274-275, 712 N.E.2d 1157 (1999).3 In both of those cases, officers in exigent circumstances involving a firearm were allowed to ask su......
  • Com. v. Martin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 12, 2005
    ...in this case, see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Commonwealth v. Alan A., a juvenile, 47 Mass.App.Ct. 271, 712 N.E.2d 1157 (1999), and the facts would probably not have supported such a claim. Martin was in custody; his apartment was swept and secu......
  • Commonwealth v. Loadholt
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 31, 2010
    ...residence also may present a substantial threat to a number of persons including an arresting officer." Commonwealth v. Alan A., 47 Mass.App.Ct. 271, 275, 712 N.E.2d 1157 (1999) ("public safety" exception to Miranda requirement permitted officer to ask juvenile about possible......
  • Commonwealth v. Mccollum, No. 07–P–1881.
    • United States
    • Appeals Court of Massachusetts
    • April 14, 2011
    ...firearm. See New York v. Quarles, 467 U.S. 649, 655–657, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Commonwealth v. Alan A., 47 Mass.App.Ct. 271, 274–275, 712 N.E.2d 1157 (1999). Here, the protective sweep uncovered objectively reasonable evidence, the presence of the holster, indicating that a......
  • Request a trial to view additional results
15 cases
  • Com. v. Guthrie G., No. 05-P-47.
    • United States
    • Appeals Court of Massachusetts
    • June 5, 2006
    ...to Miranda set out in New York v. Quarles, 467 U.S. 649, 655-656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984),2 and Commonwealth v. Alan A., 47 Mass. App.Ct. 271, 274-275, 712 N.E.2d 1157 (1999).3 In both of those cases, officers in exigent circumstances involving a firearm were allowed to ask su......
  • Com. v. Martin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 12, 2005
    ...in this case, see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Commonwealth v. Alan A., a juvenile, 47 Mass.App.Ct. 271, 712 N.E.2d 1157 (1999), and the facts would probably not have supported such a claim. Martin was in custody; his apartment was swept and secu......
  • Commonwealth v. Loadholt
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 31, 2010
    ...residence also may present a substantial threat to a number of persons including an arresting officer." Commonwealth v. Alan A., 47 Mass.App.Ct. 271, 275, 712 N.E.2d 1157 (1999) ("public safety" exception to Miranda requirement permitted officer to ask juvenile about possible......
  • Commonwealth v. Mccollum, No. 07–P–1881.
    • United States
    • Appeals Court of Massachusetts
    • April 14, 2011
    ...firearm. See New York v. Quarles, 467 U.S. 649, 655–657, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Commonwealth v. Alan A., 47 Mass.App.Ct. 271, 274–275, 712 N.E.2d 1157 (1999). Here, the protective sweep uncovered objectively reasonable evidence, the presence of the holster, indicating that a......
  • Request a trial to view additional results

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