Com. v. McCauley
Decision Date | 24 June 1981 |
Citation | 419 N.E.2d 1072,11 Mass.App.Ct. 780 |
Parties | COMMONWEALTH v. Lawrence McCAULEY. |
Court | Appeals Court of Massachusetts |
Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.
Wayne A. Perkins, West Somerville, for defendant.
Before GRANT, CUTTER and GREANEY, JJ.
McCauley was found guilty in a District Court on July 1, 1980, of unlawfully carrying on his person a .22 caliber semi-automatic pistol. G.L. c. 269, § 10(a). He appealed for a jury trial de novo. He also filed a motion to suppress the gun which was taken from him, asserting that the search of his person when the gun was discovered was without his consent. The Commonwealth did not contend that the gun was in plain view. The judge found the following facts.
About 11:55 P.M. on April 22, 1980, two Somerville police officers were in a cruiser near Teele Square. They received word to call the station by telephone. They did so. The dispatching officer told them (a) that a white male, five feet, ten inches tall, with a mustache and curly hair was in the Teele Square Cafe; (b) that he was wearing a red, white, and blue sweater; and (c) that he was carrying a firearm which he had dropped on the floor more than once. The station officer said this information "had been received from an anonymous party."
The officers went to the cafe and soon picked McCauley (from thirty to fifty patrons present) as fitting the description received from the dispatching officer. The officers approached McCauley, asked a female companion to step away, told McCauley to raise his hands above his head, and gave him a "pat down." As a consequence, the officers took from McCauley's left side a .22 caliber pistol "which had been stuffed in a belt attached to" McCauley's trousers.
Prior to the "pat down," McCauley said nothing to the two officers. They did not assert that they had seen the firearm prior to the pat down or that he was acting suspiciously, or that he consented to the pat down. No evidence was offered at the suppression hearing to warrant a finding that the officers were "apprehensive of harm at the time of the" pat down. No guns were drawn. The judge allowed the motion to suppress. The Commonwealth sought interlocutory review. Mass.R.Crim.P. 15(a)(2), 378 Mass. --- (1979). By stipulation the parties adopted the trial judge's findings as a substitute for a statement of agreed facts under Mass.R.A.P. 8(d), 365 Mass. 851 (1974).
The Commonwealth relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and cases which follow it as justifying the brief inquiry and pat down. That reliance is proper. These officers on patrol in a cruiser had received word from their dispatcher that an armed man, described in considerable detail, was present in the cafe just before midnight. He had dropped his gun at least twice. The dispatcher had to act on an anonymous telephone report. The hour and the place gave reason for suspicion that the suspect had been drinking in the cafe. The account of dropping a pistol strongly suggested carelessness with firearms and perhaps even intoxication. The officers had no time to deliberate and promptly went to the cafe. There they easily identified McCauley as fitting the detailed description, made a careful, threshold "pat down," and discovered that the anonymous informer was completely right. McCauley was armed.
The facts do not as strongly support the officer's action as those in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), but we think that the officers' prompt, restrained, threshold search was justified by the hour, the location of the inquiry, the risks to other patrons, and the specificity of the anonymous report in describing McCauley. The "specificity of the information supplied" may be relevant in determining an informant's credibility. See Commonwealth v. Fleurant, 2 Mass.App. 250, 253, 311 N.E.2d 86 (1974); State ex rel. H. B., Juvenile, 75 N.J. 243, 248-249, 381 A.2d 759 (1977).
The case seems to us much closer to Commonwealth v. Anderson, 366 Mass. 394, 397-399, 318 N.E.2d 834 (1974), than to Commonwealth v. Antobenedetto, 366 Mass. 51, 55-56, 315 N.E.2d 530 (1974). This search did not go beyond what was "minimally necessary to learn whether ... (McCauley was) armed and to disarm him once the weapon (was) discovered." Commonwealth v. Silva, 366 Mass. 402, 408, 318 N.E.2d 895 (1974).
Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 332-333, 54 L.Ed.2d 331 (1977). Here the police officers, in our opinion, probably could not have done other than substantially what they did and still have complied with their public duty.
The record in this case does not show that anything was known about the identity of the informant, nor does it suggest that the defendant was known to the police in advance of the pat down. The anonymous report did give the policemen sound ground to fear the defendant to be armed and thus to take no risks of being hurt themselves. It was a matter for the officers' judgment whether further inquiries of bar employees or other patrons would be likely to cause more commotion and create more risks than a direct approach to the defendant in the well filled cafe. Obviously, they were faced with a dilemma, and we conclude that their action was reasonable.
No case in this troublesome area of threshold searches is precisely like any other case and very slight indicia confirming suspicion have often been relied on to support sensible police conduct. Even in the absence of such slight indicia, the police sometimes must take prompt and effective action. Decisions generally supporting these officers' prompt, and only moderately intrusive action, in a great variety of circumstances, include Commonwealth v. Ballou, 350 Mass. 751, 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. Gorin, 564 F.2d 159, 160-161 (4th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) ( ); United States v. Mireles, 583 F.2d 1115, 1117 (10th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 332 (1978); Hetland v. State, 387 So.2d 963 (Fla.1980); In re Boykin, 39 Ill.2d 617, 618-619, 237 N.E.2d 460 (1968); State v. Jernigan, 377 So.2d 1222, 1224-1225 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 ( ); State ex rel. H. B., Juvenile, 75 N.J. at 248-252, 381 A.2d 759. See People v. Taggart, 20 N.Y.2d 335, 337-340, 283 N.Y.S.2d 1, 229...
To continue reading
Request your trial-
State v. Williams
...584, 439 A.2d 607 (1982); Watkins v. State, 288 Md. 597, 420 A.2d 270 (Sup.Ct.1980); Massassachusetts: Commonwealth v. McCauley, 11 Mass.App.Ct. 780, 419 N.E.2d 1072 (1981); Washington: State v. Franklin, 41 Wash.App. 409, 704 P.2d 666 (1985); and though not citing H.B., the following addit......
-
JL v. State
...439 A.2d 607 (Md.Ct.Spec.App.1982); Commonwealth v. Stoute, 422 Mass. 782, 665 N.E.2d 93 (Mass.1996); Commonwealth v. McCauley, 11 Mass.App.Ct. 780, 419 N.E.2d 1072 (Mass.App.Ct.1981); State in re H.B., 75 N.J. 243, 381 A.2d 759 (N.J.1977); State v. Williams, 251 N.J.Super. 617, 598 A.2d 12......
-
Com. v. Ceria
...318 N.E.2d 834 (1974); Commonwealth v. Thibeau, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2401, 2402, 429 N.E.2d 1009; Commonwealth v. Mc Cauley, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 904, 906-908, 419 N.E.2d 1072; Commonwealth v. Crowley, 13 Mass.App. 915, 430 N.E.2d 450 (......
-
Com. v. Cosme
...366 Mass. 394, 397-399, 318 N.E.2d 834 (1974). Commonwealth v. Johnson, 6 Mass.App. 944, 945, 382 N.E.2d 1124 (1978). Commonwealth v. McCauley, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 904, 907, 419 N.E.2d 1072. Here the law coincides with the necessities of police investigation, ......