Commonwealth v. Colon ( 2015 )

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13-P-774 Appeals Court
COMMONWEALTH vs. GABRIEL COLON.
No. 13-P-774.
Hampden. December 9, 2014. - May 22, 2015.
Present: Cypher, Wolohojian, & Blake, JJ.
Firearms. Practice, Criminal, Motion to suppress. Search and
Seizure, Reasonable suspicion. Constitutional Law, Search
and seizure, Reasonable suspicion.
Indictments found and returned in the Superior Court
Department on October 18, 2011.
A pretrial motion to suppress evidence was heard by C.
Jeffrey Kinder, J., and the cases were heard by Cornelius J.
Moriarty, II, J.
Elaine Fronhofer for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Gabriel Colon, was convicted
after a jury-waived trial of unlawful possession of a firearm,
possession of a defaced firearm, and unlawful possession of
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ammunition.1 On appeal from the ensuing judgments, he argues
error in an order denying his motion to suppress evidence,
contending that the judge erred when he found that the defendant
was lawfully seized. Only one witness testified at the hearing
on the motion to suppress, Detective William Delgado. The
salient facts are not in dispute.2 We accept the motion judge's
findings of fact unless they are clearly erroneous, but we
undertake an independent review of the application of the
constitutional principles. Commonwealth v. Hoose, 467 Mass.
395, 399-400 (2014). The motion judge found the following
facts, which we recite verbatim.
"At approximately 5:30 P.M. on September 18, 2011, Holyoke
Police Detective William Delgado received a telephone call
from a friend, Manuel Alicea. Alicea informed Detective
Delgado that five Hispanic males were loitering in front of
Manny's Market near the intersection of Sergeant and Walnut
Streets in Holyoke. Alicea, the owner of the property,
asked Detective Delgado to respond to address the problem.
"Manny's Market is in a high crime area, well known to
Detective Delgado for drug dealing, firearms offenses and
shootings. A Holyoke [p]olice [o]fficer had been killed
recently in that area.
"Detective Delgado had been a Holyoke police officer
for ten years. At the time, he was assigned to the Holyoke
[p]olice [d]epartment [n]arcotics and [v]ice [u]nit and
1
Various other charges were dismissed or nolle prosequied.
2
The judge found that police officers arrived within
fifteen minutes of the request that gave rise to the
circumstances of this case. The record shows, however, that the
officers arrived two hours later. The defendant notes some
additional minor factual errors in the findings but concedes
that they are not relevant to the issue on appeal.
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also the Western Massachusetts [g]ang [t]ask [f]orce. He
was familiar with firearms, having made firearms arrests
approximately [forty] to [fifty] times. Many of those
arrests involved illegal possession of firearms on the
street.
"At approximately 5:45 P.M., Detective Delgado
responded to Manny's Market with other officers in an
unmarked vehicle. All of the officers were in plain
clothes, but wore their police badges around their neck[s].
Upon arrival, Detective Delgado observed five Hispanic
males standing on the sidewalk in front of Manny's Market.
There were no other persons in the area. Detective Delgado
recognized one of the men, Jeffrey Rosario, from past
arrests for drug offenses and home invasion. Detective
Delgado exited his police vehicle and moved toward the
group of men for the purpose of telling them to move along.
As he did so, he noticed one of the men he did not
recognize, later identified as Colon, stare at him in a
manner he described as nervous. After Detective Delgado
and the other police officers identified themselves and
asked the men to move along, Colon began to walk away at a
fast pace repeatedly looking back toward Detective Delgado.
Colon was wearing a loose shirt untucked. From a vantage
point of approximately [ten] feet away, Detective Delgado
observed a bulge on Colon's right hip underneath his shirt.
He described the bulge as a few inches in size. Based on
his training and experience, Detective Delgado believed the
bulge was consistent with a firearm, both in size and
location. Soon after Colon began to walk away at a fast
clip, Detective Delgado observed him reach to the bulge
with his right hand and make what Detective Delgado
described as an 'adjustment' with his hand. At that point,
Detective Delgado ordered him to stop.
"After Detective Delgado's directive to stop, Colon
began to run. Detective Delgado gave chase north on
Walnut, west into a dirt lot, down an alley and onto Pine
Street. On Pine Street Detective Delgado observed Colon
reach toward the bulge, pull out what appeared to be a
firearm and throw it over a fence. [Detective] Delgado
stopped and retrieved the firearm, a silver .380 caliber
semi-automatic handgun with a black handle, approximately
[five] inches long, [three] inches wide[,] and [one] inch
thick. The firearm was loaded with one bullet in the
chamber.
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"Other officers continued to pursue Colon,
apprehending and arresting him shortly thereafter."
According to the defendant, Detective Delgado did not have
"an objectively reasonable suspicion of criminal activity, based
on specific and articulable facts" that would justify the
seizure. Commonwealth v. Barros, 435 Mass. 171, 176 (2001),
citing Commonwealth v. Stoute, 422 Mass. 782, 789 (1996). The
defendant and the Commonwealth agree that the motion judge
properly determined that the defendant was seized in the
constitutional sense when Detective Delgado yelled at the
defendant to stop. Commonwealth v. Mock, 54 Mass. App. Ct. 276,
278 (2002). See Grasso & McEvoy, Suppression Matters Under
Massachusetts Law, § 4-3 (2013-2014 edition) (determination of
the grounds of the stop is both "fact-specific and time-
dependent"). Thus, the defendant's flight following the order
to stop may not be factored into the determination of whether
the seizure of the defendant was reasonable.
When Detective Delgado first saw the defendant, he was
standing near four other men, one of whom was known to Detective
Delgado because he had arrested him for narcotics and home
invasion. The defendant walked away quickly and appeared
nervous. They were in a high crime area. Detective Delgado
observed a bulge under the defendant's shirt on his right hip,
which, based on the detective's experience and training, was
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consistent with carrying a firearm. See Commonwealth v. King,
389 Mass. 233, 243 (1983). Detective Delgado also saw the
defendant adjust the bulge. The defendant argues that, even
assuming all of these factors, Detective Delgado did not have
reasonable suspicion to believe that the firearm was illegal.
Mere possession of a firearm does not, by itself, justify a
stop. See Commonwealth v. Alvarado, 423 Mass. 266, 271 (1996).
See also Commonwealth v. DeJesus, 72 Mass. App. Ct. 117, 120
(2008) (no reason to believe that defendant was too young to
possess firearm legally). The Commonwealth responds that the
defendant's nervous demeanor when he first saw the police
arrive, his immediate and fast-paced departure from the area,
the fact that he repeatedly looked back at Detective Delgado as
he walked away, the bulge on his hip where firearms are carried,
and his reaching towards the bulge as he fled, provided a
reasonable suspicion based on the facts and the inferences which
could reasonably be drawn therefrom, that the defendant was
unlawfully carrying a firearm. See Commonwealth v. Silva, 366
Mass. 402, 406 (1974).
Both the Commonwealth and the defendant rely on
Commonwealth v. DePeiza, 449 Mass. 367 (2007), to support their
arguments. In DePeiza, the Supreme Judicial Court stated:
"Although the question is a close one, we conclude that by
the time the officers announced the patfrisk, they
reasonably suspected that the defendant was committing the
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crime of carrying an illegal firearm, and the stop was
therefore justified. This conclusion follows from the
combination of the many factors . . . . The police
encountered the defendant shortly after midnight in a high
crime neighborhood with increasing incidences of firearm
violence. He was walking with his right arm held stiff and
straight against his body, which, based on the officers'
training at the police academy, suggested he was carrying a
concealed firearm. While speaking with the officers the
defendant appeared nervous, looking from left to right and
shifting his feet, as if ready to run. Finally, and most
significantly, throughout the encounter the defendant
repeatedly hid his right side from the officers' view, and
when the officers finally glimpsed that side they noticed
that his right jacket pocket appeared to hold a heavy
object."
Id. at 371-372.
Relying on DePeiza, we have held that collective factors,
including the officer's training and nine years' experience in
the district, the history of firearms in the neighborhood, the
late hour, the defendant's head movements, his continuous
placement of his hand inside his pants, and his accelerating
evasion of the police established reasonable suspicion of
unlawful possession of a firearm. See Commonwealth v. Jones-
Pannell, 85 Mass. App. Ct. 390, 397 (2014), further appellate
review granted, 469 Mass. 1106 (2014). See also Commonwealth v.
Franklin, 456 Mass. 818, 823 n.3 (2010) ("fact of concealment of
. . . weapon . . . gives rise to . . . reasonable suspicion that
weapon is being carried unlawfully); Commonwealth v. Powell, 459
Mass. 572, 578 (2011) (same). The facts of this case support a
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conclusion that Commonwealth v. DePeiza is controlling and the
officer had reasonable suspicion to stop the defendant.
Judgments affirmed.