Opinion
No. 12–P–546.
2013-05-10
COMMONWEALTH v. Richard SOUZA.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order entered by a judge of the District Court allowing the defendant's motion to suppress evidence. We reverse.
Background. The motion judge found the following facts. On August 8, 2011, at approximately 7:00 A.M., Michael Fontaine was parked in a Fall River shopping plaza near a Dunkin' Donuts restaurant. Fontaine saw a white car pull into a parking space near him. A man, who was later identified as the defendant, left the white vehicle, walked around it, and got back inside. Fontaine thought it looked as though there was something wrong with the defendant, so he approached the white vehicle and nudged the defendant through the open window to ascertain whether he was all right. The defendant appeared to be either sleeping or unconscious. He stirred slightly when Fontaine nudged him, but then fell back asleep. Fontaine saw that the defendant had a silver handgun tucked into the waistband of his pants. Fontaine then dialed 911 and said that he thought the defendant was overdosing and that the defendant had a silver handgun. Fontaine left the scene before the police arrived because he was late for work. At approximately 7:20 A.M., State police Officer Adam Crook was working a nearby road construction detail and drove to the same Dunkin' Donuts restaurant from which Fontaine had made his 911 call. Crook did not receive any of the Fall River police radio transmissions regarding Fontaine's 911 call. Crook saw an ambulance enter the parking lot with its lights flashing and offered his assistance. The ambulance attendant advised Crook that they were responding to a dispatch concerning a possible heroin overdose by a man with a handgun in a white vehicle with Rhode Island registration. Crook returned to his patrol car and began searching the lot. He eventually located the white vehicle, parked his patrol car behind it, and observed the defendant slumped forward in the driver's seat. Crook signaled to the ambulance that he had found the car. Crook did not see a gun, but he observed a bulge at the defendant's waist. Gently, in a manner not intended to awaken the defendant, Crook lifted the defendant's shirt and seized the handgun. Crook did not attempt to wake the defendant prior to seizing the gun, nor did he conduct an assessment of the defendant's condition. Fall River police Officer Adam Katz arrived on the scene just in time to witness Crook take something from the defendant.
The defendant stirred as Crook seized the gun and began to exit the vehicle. Katz asked the defendant if he had a firearms identification card for the handgun. The defendant responded that he did not. The defendant was then arrested and a search of his person revealed a pill container and currency, which were also seized by the police. Fontaine returned to the scene and identified the defendant before he was taken to the police station.
The defendant was charged with multiple drug and firearm offenses. He filed a motion to suppress all evidence obtained as a result of the seizure. Following an evidentiary hearing, the motion judge allowed the defendant's motion, concluding that the seizure of the defendant's weapon could not be justified by the community caretaking function. A single justice of the Supreme Judicial Court allowed the Commonwealth's request for an interlocutory appeal and ordered the matter transferred to this court.
Discussion. The Commonwealth asserts that the defendant's motion to suppress should have been denied because Crook acted out of concern for public safety when he disarmed the defendant before attempting to wake him. “In reviewing a ruling 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 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
“Police encounters with citizens are not limited to criminal investigations or the exercise of regulatory duties. Some encounters may occur simply when a citizen is in need of assistance, as part of an officer's ‘community caretaking functions.’ “ Commonwealth v. Murdough, 44 Mass.App.Ct. 736, 738 (1998), S.C., 428 Mass. 760 (1999), quoting from Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “[T]he community caretaking function is implicated if there is an objectively reasonable basis for believing that the safety of an individual or the public is jeopardized.” Commonwealth v. Brinson, 440 Mass. 609, 615 (2003). The officer's “subjective belief, even a compelling one, that the operator was engaged in illegal behavior does not affect our decision.” Commonwealth v. McDevitt, 57 Mass.App.Ct. 733, 736 (2003). See Commonwealth v. Murdough, supra at 762 (officer's motive does not invalidate objectively justifiable behavior).
Here, Crook had an “objectively reasonable basis for believing that the safety of an individual or the public is jeopardized.” Commonwealth v. Brinson, supra. Crook had been told by the ambulance attendant that the defendant was believed to be suffering from a heroin overdose and had a handgun on his person. Otherwise stated, and in contrast to the facts in Commonwealth v. Alvarado, 423 Mass. 266 (1996), the defendant was reported both to be armed and not in full possession of his faculties. Additionally, he was parked in a shopping center at a time of day when many pedestrians and members of the public were likely to be present, any one of whom could have accessed the weapon just as Crook did. Crook was not required to run the risk that the defendant, upon being awoken by the police, would be dazed, confused, and belligerent. Crook correctly determined that, armed and unconscious, the defendant posed a danger to himself as well as to others. Under these circumstances, Crook acted reasonably to secure the defendant's firearm before waking him or assessing his physical well-being. See Commonwealth v. Knowles, 451 Mass. 91, 95 (2008) (“An officer may take steps that are reasonable and consistent with the purpose of his [community caretaking] inquiry ... even if those steps include actions that might otherwise be constitutionally intrusive. See Cady v. Dombrowski, supra at 447; Commonwealth v. Murdough, supra at 763–764 [officers need not have reasonable suspicion to require driver in rest area to step out of vehicle in order to better assess whether he was in condition to resume driving]; Commonwealth v. Lubiejewski, 49 Mass.App.Ct. 212, 216 [2000], and cases cited [under community caretaking doctrine, officers may, without reasonable suspicion of criminal activity, approach and detain citizens for community caretaking purposes]”).
Because the arrest arose out of evidence that came to light during the course of an appropriate exercise of the officer's community caretaking role, the order allowing the motion to suppress is reversed.
So ordered.