Opinion
10-P-1370
11-08-2011
COMMONWEALTH v. BILLY PHAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this, the defendant's direct appeal from convictions of unlawful possession of ammunition and disorderly conduct, his sole argument is that his pretrial motion to suppress should have been allowed. We affirm.
He was acquitted on a charge of possession of a sawed-off shotgun.
Facts. At about 7:45 P. M. on the evening of October 15, 2008, Officer Jose Ramirez and his partner were on patrol in a marked cruiser when Ramirez observed a white Cadillac make a right-hand turn without the use of a directional light signal, nearly causing an accident with another vehicle. The officers activated their lights and pulled over the Cadillac in front of 19 Grove Street. Two people were inside -- the defendant driver and a passenger. The defendant looked at the police, left the vehicle, and ran. As he did, Ramirez noticed that the defendant was clutching his left side with both hands and holding what appeared to be a long cylindrical object under his clothing. Based on his past experience identifying firearms and arresting individuals for firearms offenses, including possession of a sawed-off shotgun, Ramirez believed the defendant to be concealing a firearm.
We summarize the relevant facts found by the motion judge, supplemented by the testimony of the sole witness at the suppression hearing, Lowell police Officer Jose Ramirez, whom the motion judge expressly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
The defendant fled into 16 Grove Street, a two-family residence. Ramirez had been to that building previously in response to incidents involving firearms, and knew that the building owner lived downstairs, and that the leader of a local gang and his mother lived upstairs. Ramirez chased the defendant into the hall of the building and up the common stairwell leading to the upstairs apartment. There, Ramirez waited outside the partially-open door; upon hearing multiple voices and the sound of someone running up a flight of interior stairs, he slowly entered with his service firearm drawn. Ramirez told a male occupant (whom he recognized as the gang leader) to get on the floor, and directed a female occupant (the mother) to sit on the couch. Another officer arrived and secured the male occupant for officer safety.
Ramirez then conducted a protective sweep of the second floor, and, finding no one, went up the interior stairs and knocked on the doors of two bedrooms located on the third floor. An elderly couple was in one bedroom. After a few minutes, the defendant opened the door of the other, where another male was present.
Meanwhile, several officers had responded to the scene. The officers did a protective sweep of the bedroom where the defendant was found and discovered a sawed-off shotgun wrapped in a towel on a ledge outside an unscreened, open window. Ramirez saw that the shotgun had the same long, cylindrical shape as the object he had seen the defendant gripping under his clothes. He also saw something sticking out from under the bed that looked like the gray sweatshirt the defendant was wearing when he ran from the police. Ramirez pulled the sweatshirt out and, underneath it, found a plastic bag containing four rounds of shotgun ammunition. The defendant became disruptive during the protective search and was placed under arrest.
Discussion. Applying familiar standards, we discern no error in the motion judge's ruling that probable cause and exigent circumstances provided constitutional justification for the warrantless search of the residence. See generally Commonwealth v. DeJesus, 439 Mass. 616, 619 (2003). The defendant's flight into the home of a known gang leader, after a routine traffic stop, while using two hands to conceal, under his clothes, a long, cylindrical object that Officer Ramirez's experienced eye identified as a firearm, gave rise to probable cause to believe that the defendant was committing a felony, i.e., the illegal possession of a firearm. Cf. Commonwealth v. Brookins, 416 Mass. 97, 104 (1993) (possession of gun, criminal activity, and flight create probable cause to arrest for unlawfully carrying firearm). Indeed, the defendant does not contend otherwise. Rather, his argument is that the warrantless entry into the dwelling was not justified by exigent circumstances.
We accept the motion judge's findings of fact 'absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law.' Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).
While 'the standards as to exigency are strict,' Commonwealth v. Forde, 367 Mass. 798, 800 (1975), we agree with the motion judge that they were met here. Ramirez had reason to believe the defendant was armed, and could be virtually certain that he was still in the building. Entry was made at a reasonable hour, 7:45 P. M., and was not forcible. Because of the defendant's headlong flight, Ramirez had reason to believe that the defendant would take steps to conceal his weapon and/or endeavor to escape if not promptly apprehended. Furthermore, Ramirez justifiably could conclude that delay in apprehending the defendant and locating the firearm exposed persons known to reside there, as well as the police, to the danger of assault or injury.
Relevant factors in assessing the reasonableness of a warrantless entry include whether (1) a crime of violence had occurred, and the suspect was reported to be armed and dangerous; (2) there was probable cause to believe that the suspect had committed a felony, and strong reason to believe the suspect was in the particular dwelling; (3) entry was made peaceably (preferably in the daytime); (4) there was a likelihood that delay to obtain a warrant would facilitate the destruction of evidence or property; (5) there was a likelihood that the suspect would escape if not promptly apprehended; and (6) there was some reasonable basis to believe that delay would subject the officers or others to physical harm. Commonwealth v. DiSanto, 8 Mass. App. Ct. 694, 700 (1979), discussing Commonwealth v. Forde, supra.
The authorities chiefly relied upon by the defendant are substantially different. The motion to suppress was properly denied.
In Commonwealth v. Tyree, 455 Mass. 676, 685-691 (2010), the entry occurred in the middle of the night, there was no proof that the occupants knew of the presence of police, and no risk of flight or the removal or destruction of evidence, because the suspects could not anticipate that the police were likely to find them. Furthermore, police were stationed outside. There also was no reason to believe that other persons were in the vicinity or likely to arrive or that the police or others were exposed to danger. In Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 473-475 (2007), entry was made into the apartment of a suspect already under arrest to prevent a nonsuspect occupant from destroying or removing evidence. However, there was no reason to believe that she had been enlisted to do so, it was not feasible for her to destroy the evidence (a gun and ammunition), and police could have secured the outer perimeter to prevent her from removing incriminating evidence while a warrant was obtained.
We need not consider the validity of the consent to search form later executed by the apartment's female occupant, because the shotgun and shotgun shells were recovered in the course of a lawful, circumscribed protective sweep. See Commonwealth v. Mejia, 64 Mass. App. Ct. 238, 247 (2005).
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Judgments affirmed.
By the Court (Rapoza, C.J. & Cohen & Agnes, JJ.),