Com. v. Alvarado

• Decision Date: 23 July 1996
• Parties: COMMONWEALTH v. Alex ALVARADO, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 856

667 N.E.2d 856

423 Mass. 266

COMMONWEALTH v. Alex ALVARADO, Jr.

Supreme Judicial Court of Massachusetts Essex.

Argued April 1, 1996.

Decided July 23, 1996.

Michael W. Seddon, Haverhill (John J. Barter, Boston, with him) for defendant.

Susanne Levsen, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

We consider, on further appellate review, the question whether the defendant's motion to suppress a gun that the police seized from him should have been allowed. A District Court judge denied the suppression motion, which was based on art. 14 of the Massachusetts Declaration of Rights and the Fourth and Fourteenth Amendments to the United States Constitution. A divided Appeals Court agreed, affirming the defendant's conviction of carrying a firearm without having a license to do so (G.L. c. 269, § 10[a] [1994 ed.] ). Commonwealth v. Alvarado, 38 Mass.App.Ct. 650, 650 N.E.2d 1290 (1995). ¹

The issue here is whether the police had a constitutionally adequate basis for stopping the vehicle that the defendant was driving. After the stop occurred, the defendant consented to a search of the vehicle. The police then found a .22 caliber handgun wrapped in a towel in the glove compartment. If the stop was proper, admission of evidence of the gun and of the defendant's statements to the police was correct.

The motion judge found that, on July 14, 1993, Methuen police officers went to 138 Jackson Street because of information received from an anonymous telephone caller. We set forth directly from the testimony of the police officer who testified at the hearing on the motion to suppress as to what the anonymous informant said:

"We had a caller reported seeing a blue car in the driveway [at 138 Jackson Street] with several Hispanic subjects inside. The caller also stated that they [sic ] observed a handgun inside the motor vehicle and that it was wrapped in a towel."

Police officers who arrived at 138 Jackson Street in three vehicles saw a blue motor vehicle, with six people in it, backing out of the driveway. ² A police officer parked his vehicle in the driveway blocking egress. He turned on the blue police lights on his vehicle. The police told the defendant, who was the driver, that they were responding to a report of a handgun. The defendant denied that he had a gun and invited the police to search the vehicle. The police found the gun, and the defendant was arrested.

The motion judge concluded that the anonymous caller had described "the precise location of a car and its occupants and of suspicious activity (i.e. the hiding of a firearm in a towel)." She concluded that the police "had reasonable and articulable facts, not just a hunch, that illegal activity ... was taking place." She suggested the possibility of "carrying a concealed weapon" (which, we note, is not a crime) "or carrying an unlicensed firearm" (which is a crime). She ruled that the police's threshold inquiry was proper as a Terry stop. ³

The investigatory stop was justified if the Commonwealth proved that the police had a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the blue motor vehicle had committed, was committing, or was about to commit a crime. Commonwealth v. Alvarado, supra at 652, 650 N.E.2d 1290, citing Commonwealth v. Lyons, 409 Mass. 16, 18-19, 564 N.E.2d 390 (1990), and Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). See United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680-81, 83 L.Ed.2d 604 (1985); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). In this Commonwealth, under art. 14, the legality of the stop, that is, the existence of reasonable suspicion, is not determined by the imprecise Federal totality of the circumstances standard but rather by application of the principles stated in determining the existence of probable cause in Commonwealth v. Upton, 394 Mass. 363, 373-375, 476 N.E.2d 548 (1985) (reliability of informant and basis of his or her knowledge). Commonwealth v. Lyons, supra. "Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Id. at 19, 564 N.E.2d 390. See Commonwealth v. Willis, 415 Mass. 814, 819, 616 N.E.2d 62 (1993). We decide this case under art. 14. As would a Federal appellate court, we review the historical facts to determine on our own whether an objectively reasonable police officer would have been warranted in having a reasonable suspicion of criminal activity. See Ornelas v. United States, --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Commonwealth v. Santos, 402 Mass. 775, 780, 525 N.E.2d 388 (1988).

We shall initially assume, for the purposes of analysis, that the reliability of the informant and the basis for the informant's knowledge have been established at the level that is required by art. 14. We shall return to that question later, but first we consider whether the police had any information that justified a reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. The question is whether the presence of a handgun wrapped in a towel provides any reasonable basis for suspecting the occurrence of past, present, or future criminal activity.

Carrying a gun is not a crime. Carrying a firearm without a license (or other authorization) is. G.L. c. 269, § 10(a). This court held in Commonwealth v. Couture, 407 Mass. 178, 183, 552 N.E.2d 538, cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990), that, under the Fourth Amendment, "[t]he mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun." See Commonwealth v. Toole, 389 Mass. 159, 163-164, 448 N.E.2d 1264 (1983) ("carrying a .45 caliber revolver is not necessarily a crime" and thus there was no probable cause to search vehicle). The dissenting Appeals Court Justice in this case concluded that this case was controlled in material respects by our Couture opinion. See Commonwealth v. Alvarado, supra at 654, 650 N.E.2d 1290 (Brown, J., dissenting). ⁴

The Appeals Court distinguished the Couture case on the ground that here the gun was wrapped in a towel, whereas in the Couture case the defendant had had a gun protruding from his right rear pocket. Commonwealth v. Alvarado, supra at 654, 650 N.E.2d 1290. The Appeals Court concluded that the concealment here was suspicious and that "the police could have inferred that concealment of the gun was possibly related to an illicit activity." Id.

Under the rule for which the Commonwealth contends, and which the Appeals Court opinion adopted, a police officer who receives reliable information that a person is carrying a concealed weapon is warranted, without more, in having reasonable suspicion that the person has been, is, or will be engaged in criminal activity and thus is warranted in making an investigatory stop. Carrying a weapon concealed in a towel, a bag, or a knapsack, for example, however, is not a crime in this State. The suspected crime in such circumstances can only be the carrying of an unlicensed weapon, because carrying a concealed weapon is not, standing alone, an indication that criminal conduct has occurred or is contemplated.

Some courts have been willing to accept the view that the number of handguns in society greatly exceeds the number of licensed handguns and, therefore, "the odds are" (the reasonable suspicion is) that a person carrying a weapon is committing a crime. See United States v. Bold, 19 F.3d 99, 104 (2d Cir.1994) ("the statistical likelihood that the gun was illegal," along with other circumstances, supports reasonable suspicion). Other decisions seem to relax the standard when a gun tip, as opposed to a drug tip, is involved, because of the hazards created by guns. See United States v. Clipper, 973 F.2d 944, 950-951 (D.C.Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1025, 122 L.Ed.2d 171 (1993); State v. Pulley, 863 S.W.2d 29, 33 (Tenn.1993), and cases cited.

We have nothing here to justify a reasonable suspicion of criminal conduct beyond a report of a concealed weapon. There is no suspicious conduct except as the concealment itself may generate suspicion. The Massachusetts cases on which the Appeals Court relied involving a report of imminent danger, as distinguished from a tip involving drugs, do not support an investigative stop on the facts of this case. See Commonwealth v. Alvarado, supra at 653, 650 N.E.2d 1290. ⁵ There is no showing of imminent danger in this case.

Because the tip did not disclose any imminent threat to public safety, we are reluctant to relax our established rule that the report of the carrying of a firearm is not, standing alone, a basis for having a reasonable suspicion of criminal activity. We are especially reluctant to abandon our rule where, as we shall next demonstrate, the reliability of the tip was not sufficiently established so as to justify reliance on it. ⁶

The information from the anonymous informant would warrant a reasonable suspicion that the defendant had committed, was committing, or was going to commit a crime only if the informant's tip were shown to be reliable. Reliability of an anonymous tip must be based on the informant's reliability and on a demonstration of the basis of the informant's knowledge. Commonwealth v. Lyons, 409 Mass. 16, 19, 564 N.E.2d 390 (1990). The basis of the informant's knowledge appeared within the tip itself, in which the caller stated that he or she had seen several "Hispanic subjects" in a blue car in the driveway at 138 Jackson Street and had seen a handgun wrapped in a towel in the vehicle. The message suggested that the caller had just seen the blue car, its occupants, the towel, and the handgun. From this, the basis of...