Commonwealth v. Powell, SJC–10783.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation946 N.E.2d 114,459 Mass. 572
Docket NumberSJC–10783.
Decision Date28 April 2011

459 Mass. 572
946 N.E.2d 114



Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Oct. 7, 2010.Decided April 28, 2011.

[946 N.E.2d 118]

Kathryn Hayne Barnwell, Boston, for the defendant.Kathleen Celio, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, with her) for the Commonwealth.The following submitted briefs for amici curiae: Mark G. Mastroianni, District Attorney, Jane Davidson Montori, Assistant District Attorney, & Bethany C. Lynch, Assistant District Attorney, for the Hampden County District Attorney.David M. Skeels, Cambridge, Committee for Public Counsel Services, & Peter S. Krupp for Committee for Public Counsel Services & another.Edward F. George, Jr., Malden, for Gun Owners Action League.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.1IRELAND, J.

[459 Mass. 573] On January 30, 2009, after a jury-waived trial in the Central Division of the Boston Municipal Court Department, the defendant, Aaron Powell, 2 was convicted of possession of a firearm 3 without a firearm identification card (FID card), in violation of G.L. c. 269, § 10 ( h ); carrying a loaded firearm without a license, in violation of G.L. c. 269, § 10 ( n ); carrying a firearm without a license, in violation of G.L. c. 269, § 10 ( a ); and [459 Mass. 574] resisting arrest, in violation of G.L. c. 268, § 32B.4 He appeals from the denial of his pretrial motion to suppress evidence,5 contending that the firearm recovered was the result of an unlawful seizure of his person under art. 14 of the Massachusetts Declaration of Rights.6 In addition, he contends that there was insufficient evidence to support his convictions of resisting arrest and unlawful possession of a firearm, and that his counsel furnished him with constitutionally ineffective representation by failing to file a motion to suppress a statement made by him. Last, the defendant challenges his firearm convictions under the Second Amendment to the United States Constitution. We transferred the case here on our own motion. We affirm the denial of the defendant's motion to suppress and affirm his convictions.

[946 N.E.2d 119]

1. Motion to suppress. Prior to trial, the defendant moved to suppress evidence, namely a firearm, that he claimed was the result of an unlawful seizure of his person under both the Fourth Amendment to the United States Constitution and art. 14. After an evidentiary hearing, the motion was denied.

In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.7 See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005).

[459 Mass. 575] On August 20, 2008, at approximately 11 p.m., Boston police Officer Manuel Blas and his partner, Scott Roby, were on routine patrol on Sonoma Street heading toward Maple Street in the Roxbury section of Boston. The officers were in an unmarked Ford Crown Victoria automobile with antennae on the back like those that appear on a marked police cruiser, and as such, are often recognized as an unmarked police cruiser. Officer Roby was driving; Officer Blas was seated in the front passenger seat. Both officers were dressed in plainclothes. Officer Blas wore a badge that identified him as a Boston police officer on a chain around his neck. Officer Roby displayed a badge on his clothing. Officer Blas had responded to that area in the past for calls concerning “shots fired,” disturbances, and gun-related offenses.

As the officers approached the intersection, they observed about twenty-five people who were separated into three groups. There were both men and women, and they appeared mainly to be teenagers with a couple of individuals appearing to be in their early twenties. One group was comprised of about ten individuals who were standing in the vicinity of 87 Maple Street, which was to the officers' right. The other two groups were across the street; one consisted of about five individuals and the other of approximately ten individuals.

Officer Roby was driving “very slowly.” The windows in the vehicle were down. The officers did not activate any lights or sirens, and did nothing to indicate that they were police. The officers heard yelling between the two groups and saw individuals pointing at each other. It appeared to Officer Blas that an altercation was brewing. While driving between the groups, however, it became “eerily quiet.” Officer Blas noticed one young man, the defendant, standing apart from the groups on the 87 Maple Street side of the street.

The defendant was not interacting with any other people, and looked away after he saw the officers. The defendant then walked on the sidewalk toward the officers and through the group congregating at 87 Maple Street. As he started walking, the defendant's right hand moved to his right hip, and his left hand moved to the center of his waist, as if he were grasping something which, based on Officer Blas's experience and training, appeared to be a gun.

[946 N.E.2d 120]

Once the defendant got past the group, he started to run.

[459 Mass. 576] Officer Blas got out of the vehicle and followed the defendant up Sonoma Street. He saw that the defendant was clutching something with his right hand on his right side, with his left hand positioned in the “center right of his waist.” The defendant ran to a driveway near a garage. Officer Blas observed that the defendant was holding the handle of what Officer Blas believed to be a gun. As he ran, the defendant, using his right hand, pulled out a firearm, a .22 caliber revolver. Officer Blas held a flashlight in his left hand and drew his gun with his right hand, pointing it at the defendant. Officer Blas twice yelled, “Drop it.”

The defendant turned left and ran to a fence along the driveway. As he tried to climb the fence, the defendant dropped the revolver to the ground. Unable to get over the fence, the defendant ran between the fence and a vehicle parked in the driveway in the rear area of the garage. Officer Blas lost sight of the defendant for a few seconds. The defendant emerged from the left side of the driveway, charging at Officer Blas with his hands clutched in fists. Officer Blas moved to his side, and the defendant ran into Officer Roby who had been trailing Officer Blas. The defendant knocked Officer Roby's flashlight out of his hand. Officer Blas placed his gun in his holster and chased the defendant down Sonoma Street. Officer Blas eventually caught up with the defendant when he ran into two armed security guards who worked in the neighborhood. Officer Blas arrested the defendant. Officer Roby secured the revolver dropped by the defendant, which police soon determined to be loaded.

The motion judge made his findings and stated his conclusions orally. He first stated that Officer Blas “had a reasonable and articulable suspicion that the defendant was in possession of a weapon” based on Officer Blas's training and experience, and based on the defendant's actions. The judge concluded that no seizure of the defendant had occurred in the constitutional sense until Officer Blas told the defendant to drop his weapon. At that time, because the defendant had drawn a weapon on Officer Blas, there was “reasonable suspicion [that] became probable cause to arrest.” The judge went on to determine that the defendant abandoned his weapon when he tried to climb the fence, and that after its abandonment, the defendant did not retain any [459 Mass. 577] expectation of privacy in the revolver. The judge denied the defendant's motion to suppress.

On appeal, the defendant contends that his seizure was unsupported by reasonable suspicion under art. 14. See note 6, supra. In Commonwealth v. Franklin, 456 Mass. 818, 820, 926 N.E.2d 199 (2010), we stated that whether a seizure has occurred “requires a two-fold determination: whether a seizure has taken place at all and, if so, the precise point in time at which the seizure occurred.” We explained that “[a] person is ‘seized’ by a police officer ‘if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id., quoting Commonwealth v. Barros, 435 Mass. 171, 173–174, 755 N.E.2d 740 (2001).

We first must determine when the defendant was seized. Commonwealth v. Narcisse, 457 Mass. 1, 5, 927 N.E.2d 439 (2010). The defendant asserts that his seizure took place when Officer Blas got out of the unmarked police cruiser and pursued him on foot. While there may be instances where a police pursuit is the “functional equivalent” of a seizure, see, e.g., Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996), we have, in

[946 N.E.2d 121]

Commonwealth v. Franklin, supra at 822, 926 N.E.2d 199, recently “clarified the circumstances in which police pursuit of an individual sufficiently indicates that the person pursued is not free to leave, so that a seizure in the constitutional sense has occurred:”

“[W]e have held that the police may follow in a cruiser someone whom they observe engage in suspicious conduct to further their investigation, see Commonwealth v. Grandison, 433 Mass. 135, 138, 741 N.E.2d 25 (2001), and cases cited (following person in cruiser for surveillance purposes without use of blue lights, flashers, or sirens is not seizure), and that following a person, presumably at a rate of speed sufficient to keep him in sight, does not amount to a seizure absent some additional assertion of authority, by direct verbal communication (‘stop’) or otherwise (blocking, use of flashers). See Commonwealth v. Battle, 365 Mass. 472,...

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