Com. v. Ballou
| Decision Date | 03 June 1966 |
| Parties | COMMONWEALTH v. Thomas J. BALLOU, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. Lee Bailey, Boston, for defendant.
John F. McAuliffe, Asst. Dist. Atty. (James F. Sullivan, Legal Asst. to Dist. Atty., with him), for the Commonwealth.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.
The defendant was convicted by a judge sitting without jury on an indictment charging him with unlawfully carrying 'on his person a certain firearm, to wit: a revolver * * *.' G.L. c. 269, § 10, as amended. The judge stayed proceedings and has reported three questions of law to this court. G.L. (Ter.Ed.), c. 278, § 30.
The first question is, 'Did the allowance of the defendant's motion to suppress in the Charlestown District Court followed by a dismissal of the complaint by the same court constitute a bar to a subsequent indictment and trial of the defendant in the Superior Court for the same offense?'
The defendant was brought before the District Court on September 15, 1965, the day after his arrest. He pleaded not guilty. After several continuances there was a hearing on his motion to suppress. The defendant was not placed on trial. The only witness was Captain Bulens, the arresting officer, who was called by the defendant. The motion was granted and the complaint dismissed. The report states that the defendant was not placed in jeopardy, and cites Commonwealth v. Micheli, 258 Mass. 89, 91, 154 N.E. 586, where it was said, 'Dismissing a complaint without a trial on the merits is no bar to a trial for the same offense charged in the complaint dismissed.' The ruling of the judge was right. There was no jeopardy. Commonwealth v. Bressant, 126 Mass. 246, 247. Commonwealth v. Anderson, 220 Mass. 142, 143--144, 107 N.E. 523. 22 C.J.S. Criminal Law § 254.
The other questions reported are:
The facts are from the judge's report.
Detective McLean testified. On September 14, 1965, about 12:45 P.M. he was at Boston police headquarters, where he received a telephone call from an unidentified informant, who asked for Detective-Sergeant Lynch, formerly assigned to the Charlestown area. Detective McLean said that Lynch was out, but that he was Lynch's partner, and would take the message for him. The informant asked for and was told Detective McLean's name. After hesitating he told the detective that 'Buddy' McLean, Ballou, and one Winters or Winston were in Driscoll's Cafe on Medford Street, Charlestown, and that they all had guns. Detective McLean asked the informant for his name, but the latter refused. The detective immediately telephoned Sergeant Sweeney of police headquarters, and repeated the tip in every detail. Detective McLean did not know the defendant personally, but did know of him through circulars bearing his picture which were posted on the police bulletin board and which identified him as 'involved in the controversy between the McLean and McLaughlin factions.' The police frequently received and acted upon this type of anonymous tip. This is considered good police practice.
The testimony of Sergeant Sweeney is somewhat at variance with that of Detective McLean according to the judge. His findings are that in the telephone call from the detective Sweeney was told only that the detective had 'good information that Tommy Ballou, Buddy McLean' and a third person whose name Sweeney did not know 'were in a joint, in Charlestown, and (that) they all had pieces--were armed.' Sweeney was unaware that the detective's information was the product of a tip. He also believed the 'joint' was on Main Street rather than on Medford Street. Sergeant Sweeney knew the defendant at the time of the call. He knew that Ballou had been convicted on a gun carrying charge and had spent time in prison for this offence; that his parole had been revoked and he had been returned to prison but later released; and that he was known to carry a gun. He also knew that Ballou was a friend of 'Buddy' McLean, and that prior to his association with McLean he had been a friend of some associates of the McLaughlins. After Sergeant Sweeney finished talking with Detective McLean, he said in a telephone call to Captain Bulens of Division 15 in Charlestown that he had 'good information that Buddy McLean, Ballou, and a third man (he) didn't know * * * were in a joint in Charlestown,' which he believed to be on Main Street; and that they were armed.
Captain Bulens had known Sergeant Sweeney for some years. He knew that it was the latter's job to 'tail' known criminal elements. In the call from Sergeant Sweeney he was told that the latter had 'good information that Tommy Ballou and Buddy McLean were in some joint in Charlestown on Main Street, and they were carrying guns.' He was not told specifically where they were, and was not aware of the source of Sweeney's information.
Acting on the information he received, Captain Bulens and Detective Ingemi drove to Main Street. After checking four drinking establishments, Captain Bulens directed Detective Ingemi to take him to Driscoll's on Medford Street. As they approached Driscoll's, Detective Ingemi saw the defendant, who was unknown to Captain Bulens except by reputation, standing in front of the building. The car stopped, and Captain Bulens unsnapped the top of his holster to free his gun. The two officers got out and approached the defendant. The captain considered Ballou to be under arrest at this point, before he came within five feet of him, though he had not informed him that he was in custody or restrained him physically. Captain Bulens stood by Ballou while Ingemi went over to McLean in a doorway and searched him with his permission. McLean was found to be unarmed. Detective Ingemi rejoined Ballou and Captain Bulens. The captain 'patted down' Ballou without his permission and 'felt an object stuck inside of his belt' underneath his sweater. The captain reached in and removed a loaded .38 calibre revolver. The revolver showed no bulge and was not plainly visible unless the sweater was lifted. Ballou and McLean were taken to the police station. McLean was later released.
Captain Bulens knew the defendant by reputation. He had heard him discussed many times by police officers in Division 15 who said that he was a 'bad one.' He had read of the defendant in the State Police Journal. He had seen the defendant's name in State police circulars in connection with the recent wave of gangland killings. He knew the defendant to be an associate of 'Buddy' McLean. He was aware that the defendant had been convicted and had served a prison sentence on a gun carrying charge and that the defendant and McLean were known to carry guns.
In the Superior Court the defendant moved to suppress evidence of the firearm taken when he was searched and to dismiss the...
To continue reading
Request your trial
-
Com. v. Bottari
...of the vehicle. If this conduct is permissible, the evidence should not have been suppressed. The language of Commonwealth v. Ballou, 350 Mass. 751, 756, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967), in which we upheld an arrest for possession of a......
-
Com. v. Moses
...risk that he found himself in as he approached the car and that he feared that Moses may have been armed. See Commonwealth v. Ballou, 350 Mass. 751, 756-757, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967); United States v. Jackson, 652 F.2d 244, 249-......
-
Com. v. Joe
...that can be inferred from all the circumstances; it does not necessarily depend on direct testimony," citing Commonwealth v. Ballou, 350 Mass. 751, 756-757, 217 N.E.2d 187 [1966], cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 [1967]; Commonwealth v. Patti, 31 Mass.App.Ct. 440, 4......
-
Com. v. Cook
...was never communicated to the defendant. See Florida v. Bostick, supra 501 U.S. at 436, 111 S.Ct. at 2387; Commonwealth v. Ballou, 350 Mass. 751, 756, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). Lieutenant Degou's request that the defendant have ......