Com. v. Raedy

• Decision Date: 02 November 1987
• Citation: 24 Mass.App.Ct. 648,512 N.E.2d 279
• Parties: COMMONWEALTH v. Thomas R. RAEDY.
• Court: Appeals Court of Massachusetts

Page 279

512 N.E.2d 279

24 Mass.App.Ct. 648

COMMONWEALTH v. Thomas R. RAEDY.

Appeals Court of Massachusetts,

Plymouth.

Argued Jan. 14, 1987.

Decided Aug. 31, 1987.

Further Appellate Review Denied Nov. 2, 1987.

Donald A. Harwood, Brockton, for defendant.

John P. Corbett, Asst. Dist. Atty., for Com.

Before PERRETTA, QUIRICO and KASS, JJ.

PERRETTA, Justice.

On appeal from convictions on complaints charging him with unlawfully carrying a firearm (G.L. c. 269, § 10[a ] ) and various motor vehicle violations, the defendant directs all his arguments to the firearm conviction. He claims that the gun was illegally seized from his car after he was stopped for speeding, that the Commonwealth failed to prove that the gun was a weapon from which a shot or bullet could be discharged, and that the jury instructions concerning the firing capability of the gun were erroneous. We conclude that the gun was seized in the course of a valid inventory search and that, because there was evidence to show that the gun could be discharged at least once without repair or adjustment, the Commonwealth sustained its burden of proof. Finding no error in the jury instructions or the denial of his motion for a new trial, we affirm.

I. Seizure of the Gun.

In denying the defendant's motion to suppress, the judge made no findings of fact. We think, however, that the reasons for his ultimate conclusion are "clearly evident from the record." Commonwealth v. Parham, 390 Mass. 833, 837-838, 460 N.E.2d 589 (1984); Commonwealth v. Lanoue, 392 Mass. 583, 586 n. 2, 467 N.E.2d 159 (1984). The evidence adduced at the suppression hearing is as follows.

On February 20, 1984, at about 11:40 P.M., Hingham police officer John Norkaitis saw the defendant speeding. ¹ He followed him and signalled for him to pull over. Norkaitis pulled over behind the defendant's vehicle and noted that the defendant, who was alone, was moving about the front seat more than what Norkaitis regarded as "normal." Norkaitis asked the defendant for his registration and driver's license. The defendant produced his registration but explained that, although he had a driver's license, it was not in his possession.

Norkaitis asked the defendant to get out of the automobile and when he complied, Norkaitis conducted a "pat-down" search. He advised the defendant to get back into his vehicle and wait. Returning to his cruiser, Norkaitis called into police headquarters and made two inquiries; did the defendant have a valid driver's license and were there any outstanding warrants for his arrest? He was advised that the defendant had a driver's license and that there were two outstanding warrants for motor vehicle violations.

About this time, Officer Pedro Vidal arrived upon the scene. He and Norkaitis discussed the situation, and then Norkaitis returned to the defendant's vehicle and asked that he get out. He advised the defendant that he was being placed under arrest on the outstanding warrants. He conducted another "pat-down" search, handcuffed the defendant, and escorted him to his cruiser to transport him to police headquarters.

When Norkaitis left, Vidal remained behind to arrange for and await the arrival of a truck to tow the defendant's car. The defendant had left the engine to his car running, and Vidal got into the defendant's vehicle to turn the engine off and secure it for towing in accordance with the standard procedure of the Hingham police department.

As described by Vidal, that policy and procedure requires: "[A]n inventory search will be done upon a person being arrested.... The vehicle will be searched, the ignition key removed, the keys on the ring will be returned other than the ignition key and everything will be taken note of." When Vidal got into the driver's seat of the defendant's automobile to turn off the engine and remove all the keys except the ignition key from the key ring, he saw a "shiny, metallic" object protruding from under the driver's seat directly under his feet.

Pulling the object forward, Vidal discovered that it was a hammer. There was a small semiautomatic handgun attached to the hammer claw. Vidal returned to his cruiser to call to Norkaitis to see if he had done a thorough "pat-down" of the defendant. ² Norkaitis informed Vidal that he had, and Vidal returned to the defendant's vehicle. In the course of his search, Vidal found a "lot of tools in the car, but no contraband."

In arguing that his motion to suppress should have been allowed, the defendant contends that because the gun was not seized pursuant to a search incident to an arrest or a search based upon probable cause, because there were no exigent circumstances, and because the gun was not in the officer's plain view, ³ there was no justification for the seizure of the gun. The Commonwealth argues, however, that the only theory it has ever advanced in support of the seizure of the gun is that it came into Vidal's plain view in the course of a valid storage or inventory search conducted to secure the car for towing. The defendant's response to the Commonwealth's position is that that theory was never presented to the motion judge and, moreover, that Vidal conceded that the Hingham police department had no standard written policy on inventories.

Our reading of the suppression hearing transcript shows the defendant in error on both points. In final argument on the motion, the Commonwealth made its theory clear, even if in less than eloquent terms. Vidal's testimony is equally clear. The Hingham police department has a policy concerning the procedure to be followed in securing a vehicle. He did not know whether that policy and the procedures were presently in written form. However, when Vidal became a member of the police department (at the time of his testimony Vidal had been a police officer for eleven years), there was a written policy and he had "followed it since."

In the circumstances of this case, we see no illegality in the officers' actions, including Vidal's seizure of the gun. "The Supreme Court of the United States has held that an inventory search of an impounded motor vehicle is not unreasonable under the Fourth Amendment to the Constitution of the United States if carried out in accordance with standard procedures and if there is no suggestion that the procedure was a pretext concealing an investigatory police motive. See South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976). Such inventories reasonably may be considered necessary for the purpose of protecting the car or its contents, for the purpose of protecting the police against unfounded charges of misappropriation of such property, for the purpose of protecting the public against the possibility that the car might contain weapons or other dangerous instrumentalities which might fall into the hands of vandals, or for a combination of such reasons. Id. at 369, 96 S.Ct. at 3097. Commonwealth v. Matchett, 386 Mass. 492, 509-510, 436 N.E.2d 400 (1982). See and compare, Commonwealth v. White, 374 Mass. 132, 140-141, 371 N.E.2d 777 (1977); Commonwealth v. Benoit, 382 Mass. 210, 219-220, 415 N.E.2d 818 (1981); Commonwealth v. Ford, 394 Mass. 421, 424-425, 476 N.E.2d 560 (1985); Commonwealth v. Woodman, 11 Mass.App.Ct. 965, 966, 417 N.E.2d 469 (1981). See generally, Smith, Criminal Practice and Procedure §§ 273, 274 (2d ed. 1983), and 2 La Fave, Search and Seizure § 7.4, at 576-577 (1978 & Supp.1984), cited in Commonwealth v. Ford, 17 Mass.App.Ct. 505, 509, 459 N.E.2d 1242 (1984), S.C., 394 Mass. 421, 476 N.E.2d 560 (1985).

II. Firing Capability of the Gun.

To constitute a "firearm" within the meaning of G.L. c. 140, § 121, and hence within the prohibition of G.L. c. 269, § 10(a ), the "instrument in question must be (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length." Commonwealth v. Sampson, 383 Mass. 750, 753, 422 N.E.2d 450 (1981). The defendant argues that the Commonwealth failed to present sufficient evidence from which the jury could find that the weapon had firing capability and was, therefore, a firearm. See Commonwealth v. Bartholomew, 326 Mass. 218, 222, 93 N.E.2d 551 (1950).

The firearm in question is a small .25 calibre semiautomatic handgun. When retrieved by Vidal, the gun was loaded with a clip containing five or six rounds of ammunition. The clip was held in place with scotch tape. To show that the weapon was operable, the Commonwealth offered the testimony of State police officer Michael Arnold. At the time of trial, Arnold had had nine years experience with the State police in the firearms identification section. His expertise and duties included the "preservation" of firearms evidence as well as physical and microscopic examinations of firearms and firearms-related evidence.

Arnold testified that to operate the firearm in question in the manner in which a gun is intended to be used, a "minor" repair first had to be made: the sear spring on the gun was incorrectly aligned. Until the spring was repaired by putting it in its proper position, pressure could not be applied to the sear which engages the firing pin. The repair, according to Arnold, could easily be made by someone who was familiar with or owned the weapon. Moreover, directions for the repair could be found in the manual that is provided with the gun at the time of purchase.

Arnold did not test fire the gun in its unrepaired state for the following reason: "[Y]ou would have probably caused damage to the pistol with the spring out of alignment and as a safety factor, I wouldn't want to be jiggling the gun around with a live round in the chamber in my office trying to get the pistol to cock unless there was an absolute specific reason to do that and I didn't have a reason to do it." The defendant argues that Arnold's testimony brings the case within Commonwealth v. Sampson, 383 Mass. at 759, 422 N.E.2d 450 ("the risk of harm to the person test-firing...