Com. v. Alvarado

• Decision Date: 14 April 1998
• Parties: COMMONWEALTH v. Manuel ALVARADO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 131

693 N.E.2d 131

427 Mass. 277

COMMONWEALTH v. Manuel ALVARADO.

Supreme Judicial Court of Massachusetts Hampden.

Argued March 2, 1998.

Decided April 14, 1998.

Thomas H. Townsend, Assistant District Attorney (Marcia B. Julian, Assistant District Attorney, with him), for the Commonwealth.

Thomas F. McGuire, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, Justice.

The defendant was charged in the Holyoke Division of the District Court Department under G.L. c. 269, § 10 (a ), with carrying a firearm without having a license to do so. He filed a motion to suppress "evidence seized by the police when they stopped and searched a motor vehicle in which the [d]efendant was a passenger," basing the motion on art. 14 of [427 Mass. 278] the Massachusetts Declaration of Rights and the Fourth and Fourteenth Amendments to the United States Constitution. A District Court judge held an evidentiary hearing and allowed the motion which resulted in the suppression of the handgun that is the subject of the carrying charge, as well as a statement made by the defendant in response to a question by a police officer. ¹ The Commonwealth appealed, and the Appeals Court, in an unpublished decision pursuant to its rule 1:28, affirmed the order allowing the motion to suppress. ² Commonwealth v. Alvarado, 42 Mass.App.Ct. 1116, 678 N.E.2d 1347 (1997). We granted the Commonwealth's application for further appellate review. We now vacate the order suppressing the handgun and direct that further proceedings be conducted with respect to the defendant's statement.

1. The judge found the following facts. On March 7, 1994, at 4:30 P.M., Christopher Hopewell, a paramedic employed by the Holyoke Hospital Emergency Medical Services (EMS), stood on High Street in Holyoke after responding to an emergency call, when he saw a car containing four men drive slowly past him. Hopewell noticed that a man in the front passenger seat of the car, subsequently identified as the defendant, was slumped over and holding, what Hopewell described as, a "foot to two foot long 'cylinder-ish' pipe which reflected light." Hopewell followed the car, and made contact with the dispatcher at the Holyoke police department by radio. Hopewell described the registration number of the car, the number of occupants, and the perception of what he saw, namely, a sawed-off shotgun. ³

Henry Wielgosz, a Holyoke police officer on cruiser patrol at the time, heard the radio communications between Hopewell and the police dispatcher concerning the description of a possible sawed-off shotgun in the car, and proceeded to intercept the car with the expressed intent "to stop and to search the vehicle for a weapon." Officer Wielgosz stopped the car without incident after being joined by Lieutenant Charles DiNapoli and Detective William Lempke of the Holyoke police department. Wielgosz drew his service weapon and ordered the four men in the car to get out while keeping their hands in plain sight. The men did so. Each man was searched for weapons, and no weapon was found. Lt. DiNapoli observed a steering wheel locking device, the "Ultra Club," in the front of the car. Detective Lempke, who also had been informed of a possible sawed-off shotgun in the front passenger side of the car, searched that area after the men had been removed from the car. Lempke found a four-inch by three-inch handgun in the area between the seat cushion and the back support of the front passenger seat. At some point after the men had been removed from the car, Officer DiNapoli said to the defendant, "You got a gun?" The defendant responded, "It's dangerous out there."

Based on these findings of fact, the judge concluded that, "[w]hen Manuel Alvarado, the defendant, exited the motor vehicle at gun point and [was] searched; he was not free to go and [was] effectively [placed] under arrest." The judge went on to conclude that the information furnished to the police by Hopewell was not reliable enough to establish probable cause for the police to stop and search the car in which the defendant was riding. Consequently, the judge suppressed both the handgun and the defendant's statement to DiNapoli as fruits of an illegal search.

In reaching these conclusions, the judge relied on our decision in Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538, cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990), in which we upheld the suppression of a handgun seized from the defendant's pickup truck based on information received by the police that the defendant had been seen earlier inside a convenience store with a handgun protruding from his right rear pocket. In Couture, we stated that the stop and subsequent search of the defendant's pickup truck constituted a seizure within the meaning of the Fourth Amendment, ⁴ id. at 183, 552 N.E.2d 538, for which the police needed probable cause, and that, the "unadorned fact" that the defendant had been seen in public with a handgun (the carrying of which would not be a crime) "without any additional information suggesting criminal activity, does not give rise to probable cause." Id. at 181, 552 N.E.2d 538. We also indicated in Couture, that the stop could not be justified under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in the absence of some information that the defendant might be engaged in criminal conduct. Id. The judge in this case analogized the circumstances to those in Couture, reasoning, in substance, that Hopewell's report of a sawed-off shotgun, unless more detailed and corroborated, would not justify the stop and subsequent examination of the men in the car and the car's interior. The Appeals Court agreed, stating simply in its memorandum and order that, "[t]his case is controlled in all material respects by the decisions in Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990), and Commonwealth v. Alvarado, 423 Mass. 266, 667 N.E.2d 856 (1996)," a case we shall discuss shortly.

2. The issue is whether the police had a constitutionally sufficient basis to stop the car, order the four men out and frisk them for weapons, and then examine the car's interior for a weapon which had been described as a possible sawed-off shotgun. In Commonwealth v. Alvarado, 423 Mass. 266, 667 N.E.2d 856 (1996), the police received an anonymous tip that several Hispanic men had been seen inside a blue car at a specified address with a handgun wrapped in a towel. The police located and stopped the car with six people inside at the designated address, received permission from the defendant (the driver of the car) to search the car, and found and seized an unlicensed handgun from the car. Id. at 267-268, 667 N.E.2d 856. We considered the situation in Alvarado (where the defendant's claim was made, as is the case here, under both the Federal and State Constitutions), under the standards developed under art. 14 for an investigatory stop. We described those standards as follows:

"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, [38 Mass.App.Ct. 650,] 652, 650 N.E.2d 1290 [1995], 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, [680-681], 83 L.Ed.2d 604 (1985); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690 [694-695], 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)."

Alvarado, supra at 268-269, 667 N.E.2d 856. We went on to conclude in Alvarado, in reliance on the analysis about information concerning the sighting of a handgun as set forth in Commonwealth v. Couture, supra, that, "[b]ecause the tip [about the handgun] 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." Id. at 271, 667 N.E.2d 856.

We apply these standards to the facts found by the judge in this case to determine on our own whether an objectively reasonable police officer would have been warranted in stopping the car in which the defendant was riding and looking for a specific type of weapon. We conclude that the information received by the police justified their conduct because reliable information that someone might be carrying a sawed-off shotgun stands on a much different footing than a report that someone might be carrying a handgun.

A sawed-off shotgun is an extremely lethal weapon which poses "an ominous threat in and [of] itself." United States v. McKinney, 477 F.2d 1184, 1186 (D.C.Cir.1973). The weapon has virtually no legitimate use outside, perhaps, of uses by law enforcement and military personnel. "Sawed-off shotguns cannot be used against game or wild animals and their only known uses are to frighten or kill human beings." United States v. Reed, 935 F.2d 641, 643 (4th Cir.1991). See Brook v. State, 448 N.E.2d 1249, 1251 (Ind.C...