Com. v. Derosia

• Decision Date: 04 May 1988
• Citation: 402 Mass. 284,522 N.E.2d 408
• Parties: COMMONWEALTH v. Leo A. DEROSIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 408

522 N.E.2d 408

402 Mass. 284

COMMONWEALTH v. Leo A. DEROSIA.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued April 6, 1988.

Decided May 4, 1988.

Katherine E. McMahon, Asst. Dist. Atty., for the Com.

Peter K. Binder, Gardner, for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

As a result of a search and a seizure of a firearm from his person on January 5, 1986, the defendant was found guilty at a bench trial of unlawfully carrying a firearm. He appealed to the jury session and, before trial, he filed a motion to suppress the firearm. The judge allowed the motion. The Commonwealth appealed and a single justice of this court allowed the Commonwealth's application for interlocutory appeal. We affirm.

We have the benefit of the motion judge's thoughtful findings of fact from which we learn that an officer of the police department of Keene, New Hampshire, received a telephone call from an anonymous informant on January 5, 1986. The caller told the police officer that the defendant was in the area and armed with a .32 caliber handgun. This police officer knew that a capias had been issued on a New Hampshire indictment for arrest of the defendant for his defaulting on a bail bond, and for weapons and narcotics offenses. Armed with another report as to the defendant's location, this police officer telephoned a home in Gardner, Massachusetts. The telephone was answered by the defendant (the officer recognized his voice). A check of the telephone records indicated that the residence called was that of the defendant's mother in Gardner.

The police officer in Keene then telephoned a police officer in Gardner and told him that the defendant was in Gardner, in his mother's home, was armed, probably had a police scanner, and that he was wanted on a capias in New Hampshire for a weapons offense. He told the Gardner police officer that the defendant may be operating a motor vehicle with Texas registration plates, and furnished a detailed description of the defendant. The Gardner police officer confirmed the existence of the weapons charge, as well as the default on the bail bond and his outstanding narcotics offenses by using a computer terminal linked to the National Crime Information System. The Keene police department sent the capias to the Gardner police and, on receipt of it, the Gardner police went to the residence of the defendant's mother. Two persons emerged from the residence and drove away. A police officer stopped them and asked whether the defendant was present in his mother's home. The driver acknowledged the defendant's presence in the house, but he said that he did not know whether the defendant was armed at the time.

This police officer then telephoned an assistant clerk of the local District Court and told him of the defendant's location and the capias. The assistant clerk advised the police officer that a warrant for the defendant's arrest was not necessary. Several police officers went to the residence of the defendant's mother. One police officer knocked on the door. The defendant...