Com. v. Pagan
Decision Date | 29 June 2005 |
Docket Number | No. 04-P-1102.,04-P-1102. |
Citation | 63 Mass. App. Ct. 780,829 N.E.2d 1168 |
Parties | COMMONWEALTH v. Pedro PAGAN. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dana Alan Curhan, Boston (John J. Connell with him) for the defendant.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
Present: GREENBERG, COWIN, & GREEN, JJ.
On June 4, 2002, a Suffolk County grand jury returned a three-count indictment charging the defendant with unlawful possession of a firearm (G.L. c. 269, § 10[a]), unlawful possession of ammunition (G.L. c. 269, § 10[h]), and resisting arrest (G.L. c. 268, § 32B).
Prior to trial, the defendant filed a motion to suppress the firearm and other evidence on the ground that, at the time they stopped him, the police officers did not have reasonable suspicion to believe he was engaging in criminal activity. A Superior Court judge (motion judge) denied that motion after a hearing.
A bench trial was then held before a different Superior Court judge (trial judge) who, on stipulated facts, found the defendant guilty of all three charges. The defendant was sentenced to three concurrent terms of one year in the Suffolk County house of correction.
On appeal, the defendant claims that the motion judge erred in failing to suppress the firearm and other evidence and that the evidence at trial was insufficient to convict him of resisting arrest. We affirm the firearm and ammunition convictions, and reverse the resisting arrest conviction.
1. The facts. According to the motion judge's findings, the weapon and ammunition were discovered under the following circumstances:
2. The patfrisk. The defendant contends that there was insufficient justification for the officers to initiate a threshold inquiry and that the pat-down frisk leading to the search of the defendant's waistband was not justified by the circumstances. We disagree.
We first note that the police officers did not impinge on the defendant's rights by simply alighting from the police cruiser and approaching him. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, 387-388, 644 N.E.2d 1294, cert. denied, 515 U.S. 1146, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995) ( ); Commonwealth v. Thomas, 429 Mass. 403, 406-407, 708 N.E.2d 669 (1999) (same). This is true regardless of whether the police officers possessed reasonable suspicion and were approaching to confirm information that would yield probable cause. See Commonwealth v. Thomas, 429 Mass. at 404-407, 708 N.E.2d 669; Commonwealth v. Barros, 49 Mass.App.Ct. 613, 614-618, 731 N.E.2d 538 (2000), S. C., 435 Mass. 171, 755 N.E.2d 740 (2001).
The defendant, however, contends that the circumstances did not justify a protective patfrisk during the encounter because Charbonnier had no objectively reasonable basis for believing that the defendant was armed, citing Commonwealth v. Williams, 46 Mass.App.Ct. 181, 182-183, 704 N.E.2d 212 (1999).
We disagree. Strange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect. See Commonwealth v. Anderson, 366 Mass. 394, 399-400, 318 N.E.2d 834 (1974); Commonwealth v. Grinkley, 44 Mass.App.Ct. 62, 71 & n. 11, 688 N.E.2d 458 (1997). The motion judge found, correctly so, that the defendant's reaching for his waistband at the same time he walked away — presumably with his back to Charbonnier — justified the officer's belief that his safety and that of the other officers was at risk. We need not reprise all of the cases which describe similar circumstances. What the Supreme Judicial Court said in Commonwealth v. Silva, 366 Mass. 402, 407-411, 318 N.E.2d 895 (1974), details the permissible scope of the pat-down search which was undertaken by Charbonnier. We need only point out that whether a gesture is furtive (and indicative of criminal activity or danger to police officers) or innocent depends on the factual context. When, as the officers approached the defendant, Charbonnier saw the defendant put...
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