Com. v. Couture

• Decision Date: 09 April 1990
• Citation: 552 N.E.2d 538,407 Mass. 178
• Parties: COMMONWEALTH v. Paul R. COUTURE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 538

552 N.E.2d 538

407 Mass. 178

COMMONWEALTH v. Paul R. COUTURE.

Supreme Judicial Court of Massachusetts Middlesex.

Submitted Dec. 6, 1989.

Decided April 9, 1990.

Cheryl A. Jacques, Asst. Dist. Atty., for the Commonwealth.

P. Scott Bratton, Chelmsford, for defendant.

Robert Dowlut of the District of Columbia and Karen L. MacNutt, for National Rifle Ass'n of America, amicus curiae, submitted a brief.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The Commonwealth appeals from a judge's allowance of the defendant's motion to suppress a handgun which was uncovered during a warrantless search of the defendant's motor vehicle. A single justice of this court allowed the Commonwealth's application for interlocutory review and reported the case to the full court. We affirm the ruling of the motion judge.

The facts of the case, as found by the motion judge, are these. On February 11, 1988, a clerk at a convenience store in Lowell telephoned the local police and informed them that a man inside the store had a small handgun protruding from his right rear pocket. The clerk said that the man entered a gray pickup truck with a New Hampshire registration number. The clerk reported the registration number to the police.

Officer Gary Richardson of the Lowell police department received a national park ranger's radio transmission stating that the ranger was following a truck which matched the clerk's description and which bore the reported registration number. Officer Richardson located and stopped the vehicle. He approached with his service revolver drawn, ordered the defendant, who was alone, out of the vehicle, and took him to the rear of the truck. As his partner detained the defendant, Officer Richardson searched the vehicle and found a small .38 caliber pistol which was three or four inches under the front seat, near the transmission. Officer Richardson testified that he was not in fear for his safety at the time of the search. The officer advised the defendant of his rights and asked the defendant if he had a license for the gun. The defendant replied that he did not have a license.

The judge allowed the defendant's motion to suppress the firearm, citing Commonwealth v. Toole, 389 Mass. 159, 448 N.E.2d 1264 (1983). We agree with the judge that this case is governed by Commonwealth v. Toole, supra.

In Toole, a State trooper lawfully stopped the defendant's vehicle and arrested the defendant on an outstanding arrest warrant. The police ordered Toole to leave the vehicle, and a subsequent "pat-frisk" revealed an empty holster and an ammunition clip containing .45 caliber bullets. While Toole waited in handcuffs with two State troopers at the rear of the vehicle, another trooper searched the vehicle and found a .45 caliber gun behind the seat. After the search, Toole admitted that he did not have a firearm identification card. The troopers did not fear for their safety during the search. Toole was charged with unlawfully carrying a firearm under his control in a vehicle. A judge in the Greenfield District Court allowed Toole's motion to suppress evidence of the gun.

We affirmed, stating that probable cause did not exist at the time of the search: ¹

"[I]t has not [been] shown that, when the search was conducted, the police reasonably believed that there was a connection between the vehicle and any criminal activity of the defendant, an essential element to a finding of probable cause.... The empty holster and ammunition found on the defendant certainly created probable cause to believe that there was a gun in the cab. But carrying a .45 caliber revolver is not necessarily a crime. A possible crime was carrying a gun without a license to carry firearms, G.L. c. 269, § 10(a ). However, the police did not learn that the defendant had no firearm identification card until after the search. They apparently never asked the defendant whether he had a license to carry a firearm. [There was an] absence of any showing that, before searching the vehicle, the police had probable cause to believe that there was contraband, an illegally carried weapon, in the cab...." (Citation and footnote omitted; emphasis supplied.) Commonwealth v. Toole, supra at 163-164, 448 N.E.2d 1264. ²

In the case at hand, the judge's findings and the record make clear that the police had no probable cause to believe that the defendant was or had been engaged in any criminal activity. There is no evidence to suggest, and the Commonwealth does not claim, that the defendant was acting suspiciously when he was seen by the clerk at the convenience store. There is no indication that the gun which was seen was used in any manner to threaten or intimidate the store clerk. There is no suggestion that the defendant lingered for an unusual period of time at the store or that he was "casing the joint" in preparation for a robbery. See Terry v. Ohio, 392 U.S. 1, 6, 54 S.Ct. 603, 605, 78 L.Ed. 1077 (1968). Rather, the police only knew that a man had been seen in public with a handgun. Under Toole, this unadorned fact, without any additional information suggesting criminal activity, does not give rise to probable cause. The police in this case had no reason to believe, before conducting the search of the vehicle, that the defendant had no license to carry a firearm. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

The Commonwealth argues that this conclusion conflicts with a body of law relating to G.L. c. 269, § 10(a ) (1988 ed.), the statute criminalizing the unlawful carrying of a firearm. We disagree. General Laws c. 269, § 10(a ), provides for the punishment of an individual who, "except as provided by law, carries on his person, or carries on his person or under his control in a vehicle, a firearm, loaded or unloaded." The statute lists four exceptions to this general rule, two of which include "having in effect a license to carry firearms" issued under G.L. c. 140, § 131 or § 131F (1988 ed.).

In Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977), we discussed the elements required to prove a violation of G.L. c. 269, § 10(a ). In that case, the Commonwealth presented no evidence to show that the defendant did not have a license to carry a firearm, and the defendant argued that there was error in the denial of his motion for a directed verdict and in the jury instructions on licensing. We affirmed the conviction for unlawfully carrying a firearm.

We stated in Jones, supra at 406, 361 N.E.2d 1308:

"The holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense.... Absence of a license is not 'an element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist." (Citation omitted.) ³

The Commonwealth argues that Jones and Toole, read together, lead to an "irrational" result, namely, that a police officer in the street must show more in determining that a gun is unlawfully carried than a prosecutor needs to prove to obtain a conviction. This argument is based on a...