Com. v. Bacon

• Decision Date: 27 May 1980
• Citation: 9 Mass.App.Ct. 766,404 N.E.2d 696
• Parties: COMMONWEALTH v. Paul B. BACON (and two companion cases). 1
• Court: Appeals Court of Massachusetts

Page 696

404 N.E.2d 696

9 Mass.App.Ct. 766

COMMONWEALTH v. Paul B. BACON (and two companion cases). ¹

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 10, 1979.

Decided May 27, 1980.

Daniel E. Callahan, III, Boston, for Arthur Davis.

Arthur H. Goldsmith, Boston, for Paul B. Bacon.

Brian J. Dobie, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, ROSE and KASS, JJ.

ROSE, Justice.

The defendants are awaiting trial on their indictments for violations of G.L. c. 269, § 10(a ). The defendant Bacon was charged with unlawfully carrying a handgun on his person, and both defendants were charged with possession of a sawed-off shotgun found in an automobile operated by Bacon. Each defendant filed a motion seeking to suppress the physical evidence seized by police officers after an investigative stop and warrantless search. After hearing, a judge of the Superior Court denied the defendants' motions, and the defendants applied for an appeal under G.L. c. 278, § 28E. A single justice of the Supreme Judicial Court granted the interlocutory appeals, and the matter was transferred to this court.

Based upon the "specific and articulable facts" adduced at the suppression hearing (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974)) the motion judge ruled that the police officers were justified in stopping the defendants' vehicle for the purpose of making a brief threshold inquiry, and that the scope of the ensuing search did not exceed constitutional limits. We agree with the judge's conclusion. The facts, taken from the judge's memorandum, are as follows. While on cruiser patrol on March 12, 1977, at 4:10 A.M., Boston Police Officers Carey and Martin observed two young or youthful appearing males, one the driver of and the other a passenger in a 1973 Cadillac automobile, driving on Washington Street and approaching and then passing through the intersection of Washington Street with Marcella and Brinton Streets. ² As the officers turned from Brinton onto Washington Street and passed the defendants, Officer Martin, who was driving the police cruiser, observed the driver of the Cadillac raise his left hand to his face in an apparent attempt to obscure his face from the view of the oncoming and passing police, who were attempting to observe the Cadillac's interior. Officer Martin testified that it appeared to him that the defendant "didn't want to be recognized by a Boston uniformed officer." Within seconds after the vehicles had passed, Martin made a U-turn to follow the Cadillac. The Cadillac continued north on Washington Street at a slow but steady speed. As the cruiser closed the distance between the cars, the cruiser's blue lights were activated, and for a few seconds there was no discernible change in the speed or the course of the Cadillac. Officer Martin then engaged the siren. He pulled his cruiser out from behind the Cadillac and placed the cruiser somewhat abreast of and slightly ahead of it, thereby obstructing its progress and forcing it to a halt.

Officer Carey alighted and approached the driver of the Cadillac to request his license and automobile registration. Officer Martin approached the passenger side of the Cadillac, and immediately recognized that the passenger was Davis (one of the defendants). ³ In an encounter between Martin and Davis some time during the previous year, Davis, as the operator of a stolen car being pursued by Martin, had intentionally rammed into Martin's police cruiser, and had subsequently been arrested. Martin also knew that Davis had previously been arrested for unlawful possession of a firearm. Martin then opened the door of the Cadillac to illuminate the interior of the automobile (the immediate area not being well illuminated) and to talk with Davis, and he saw, on the floor between the engine firewall and seat, under Davis' legs, the barrel of a sawed-off shotgun pointed in Martin's direction, protruding from under a jacket or coat. Martin alerted his partner and drew his service revolver. Both defendants were ordered from the car and frisked. A search of the defendants revealed a fully loaded handgun in defendant Bacon's left front pants pocket.

1. In light of the circumstances and the facts known to the officers when they initiated the stop, such as the suspects' youthful appearance, the relatively expensive automobile in which they were traveling, the time of night and the deserted street, together with the Cadillac operator's apparently evasive movement in obscuring his face from view, we think that the officers could reasonably have suspected criminal activity on the part of the defendants and were justified in initiating a brief stop "to determine (their) identity or to maintain the status quo momentarily while obtaining more information . . . ." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). See Commonwealth v. Matthews, 355 Mass. 378, 381, 244 N.E.2d 908 (1969); Commonwealth v. Silva, 366 Mass. at 405, 318 N.E.2d 895, and cases cited; Commonwealth v. Almeida, 373 Mass. 266, 268-269, 271-272, 366 N.E.2d 756 (1977); Commonwealth v. Tisserand, 5 Mass.App. 383, 384-385, 386, 363 N.E.2d 530 (1977). Cf. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). Contrast Brown v. Texas, 443 U.S. 47, 50-52, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979); Commonwealth v. Stinson, 6 Mass.App. --- ^a, 377 N.E.2d 437 (1978). See generally, 3 LaFave, Search & Seizure § 9.3(c), at 69-82 (1978).

2. Once the stop had been effected and Officer Martin had recognized the defendant Davis, a limited protective search for weapons...