Commonwealth v. Suriel ( 2017 )

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16-P-254 Appeals Court
COMMONWEALTH vs. JUAN G. SURIEL.
No. 16-P-254.
Hampden. March 1, 2017. - May 26, 2017.
Present: Green, Wolohojian, & Sullivan, JJ.
Firearms. Practice, Criminal, Motion to suppress.
Constitutional Law, Search and seizure, Reasonable
suspicion. Search and Seizure, Automobile, Reasonable
suspicion.
Complaint received and sworn to in the Springfield Division
of the District Court Department on December 2, 2013.
A pretrial motion to suppress evidence was heard by Robert
A. Gordon, J., and the case was tried before Charles W. Groce,
III, J.
William M. Driscoll for the defendant.
Kelsey A. Baran, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. The defendant, Juan G. Suriel, appeals from
his convictions of possession of a firearm without a license in
violation of G. L. c. 269, § 10(a), and possession of ammunition
without a firearm identification card in violation of G. L.
2
c. 269, § 10(h)(1).1 He contends that his motion to suppress
should have been allowed because the police lacked reasonable
suspicion to conduct an investigatory stop. We affirm.
Background. We recite the motion judge's factual findings,
supplemented by uncontroverted evidence in the record that is
consistent with those findings. See Commonwealth v. Edwards,
476 Mass. 341, 342 (2017). On November 30, 2013, at about 5:30
P.M., a police officer from the narcotics division of the
Springfield police department was surveilling a local
barbershop. The narcotics officer was parked across the street
from the barbershop, in the parking lot of Springfield Technical
Community College on State Street. At around 6:20 P.M., the
narcotics officer saw two men go into the barbershop. A short
time later, another man, later identified as codefendant Glidden
Gotay, went into the barbershop holding a blue bag. The three
men were talking by the front door and a fourth man, later
identified as the defendant, joined the conversation. The men
then went into a back area of the barbershop, out of sight of
the narcotics officer. Within a short period of time, the four
men came out of the barbershop, walked about ten to fifteen feet
1
A third charge of receiving stolen property over the value
of $250 in violation of G. L. c. 266, § 60, was nolle prossed.
3
down the driveway next to the barbershop, and began to talk.2
Another man, later identified as codefendant Jose L. Vicente,
remained at the head of the driveway near the street and
sidewalk. The narcotics officer then saw Gotay hand a gun to
one of the two men, who handed it back to Gotay. Gotay next
handed the gun to the defendant. The defendant then put the gun
inside his jacket. The entire transaction took a matter of
seconds.
The men then went their separate ways in separate cars.
The defendant drove away in a car (a Saturn), operated by
Vicente. While observing the meet-up, the narcotics officer had
given support officers a running description of what he saw,
including the make, model, color, and license plate of the
Saturn.
When support officers spotted the Saturn, they pulled in
front of it, positioning the unmarked cruiser so that the Saturn
had to stop. When one of the support officers approached the
Saturn, he noticed the defendant "looking down to his right, and
gesturing feverishly to the right side of his seat with his
arm." That officer shouted for the defendant to show his hands.
The defendant made eye contact with the officer, while still
reaching down to the right side. The support officer continued
2
The area was lit by street lamps and lights from the
barbershop.
4
to approach the Saturn and, with the help of another support
officer, "extracted" the defendant from the car. A search of
the Saturn revealed a .22 caliber Smith & Wesson firearm in the
passenger side compartment and a magazine on the passenger side
floorboard.
Discussion. Motion to suppress. "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 [the judge's] ultimate findings and conclusions of
law."'" Commonwealth v. Jessup, 471 Mass. 121, 129 (2015),
quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The stop. A stop of a motor vehicle is justified if "the
police [have] a reasonable suspicion, based on specific,
articulable facts and reasonable inferences therefrom, that an
occupant of the . . . [car] had committed, was committing, or
was about to commit a crime." Commonwealth v. Alvarado, 423
Mass. 266, 268 (1996). "An officer's suspicion must be grounded
in '"specific, articulable facts and reasonable inferences
[drawn] therefrom" rather than on a "hunch."'" Edwards, 476
Mass. at 345, quoting from Commonwealth v. Lyons, 409 Mass. 16,
19 (1990). Here, a stop in the constitutional sense occurred
when the police car pulled in front of the Saturn and stopped
it. See Edwards, 476 Mass. at 345.
5
The defendant contends that the police lacked reasonable
suspicion to stop the Saturn based on the surveillance
information relayed by the narcotics officer. He points out
that there is no evidence in the record to suggest that the
location was known to police for illegal gun sales. There was
no explanation of the reasons for the surveillance. Similarly,
none of the men involved were known to the police. The
defendant further contends that the fact that the gun was
transferred to the defendant by another does not give rise to
reasonable suspicion, because ownership of a gun is not in and
of itself illegal. See Alvarado, supra at 269 ("Carrying a gun
is not a crime. Carrying a firearm without a license [or other
authorization] is"). "The mere possession of a handgun [is] not
sufficient to give rise to a reasonable suspicion that the
defendant was illegally carrying that gun." Commonwealth v.
Couture, 407 Mass. 178, 183 (1990).
As in Edwards, however, there is more to this case than
mere possession of a gun.3 Here there was a transfer of a gun.
The timing of the men's arrival permitted the narcotics officer
to infer that the men met by prearrangement. None of the men
stayed to get a haircut or for any other reason unrelated to
3
"[W]hen . . . police observations are coupled with other
factors, there may be reasonable suspicion of a crime.
Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007). See
Edwards, 476 Mass. at 346-347.
6
this transaction. After speaking briefly at the back of the
barbershop, they left and walked together down a nearby
driveway, which was sheltered from view. One man stayed at the
head of the driveway. The narcotics officer could infer that he
served as a lookout. A gun was passed from hand to hand in a
matter of seconds and pocketed, followed by a prompt departure
by all of the men.
The circumstances of the transfer of the gun give rise to
reasonable suspicion, not a mere hunch. The participants chose
to leave the barbershop, where what they were doing could be
witnessed, and to move outside to a secluded area. They hastily
transferred the gun and left immediately. "[T]he officer 'could
reasonably infer from the conjunction of these facts that
criminal activity might be afoot.'" Edwards, supra at 347,
quoting from Commonwealth v. Thompson, 427 Mass. 729, 734, cert.
denied, 525 U.S. 1008 (1998).
The location of the transaction also matters. In this
case, the transfer occurred in a driveway in the early evening,
not in a building housing a business dedicated to the sale,
rental, or lease of firearms during customary business hours.4
4
A person who intends "to sell, rent or lease firearms,
rifles, shotguns or machine guns, or to be in business as a
gunsmith" must have a license to do so. G. L. c. 140, § 122, as
amended by St. 1957, c. 688, § 5. "Every license shall specify
the street and number of the building where the business is to
be carried on, and the license shall not protect a licensee who
7
There was reason to suspect that this was not a lawful
commercial sale.
The defendant points out that not all sales or transfers
must be made by a licensed gun dealer, relying on G. L. c. 140,
§ 128A.5 This is undoubtedly true, but the fact that the
transfer might have been lawful does not mean that the officers
lacked reasonable suspicion that it was not. See Commonwealth
v. Rivas, 77 Mass. App. Ct. 210, 218 (2010), quoting from
Commonwealth v. Deramo, 436 Mass. 40, 44 (2002) ("[T]he police
carries on his business in any other place." G. L. c. 140,
§ 122, as amended through St. 1998, c. 180, § 10.
5
As is pertinent here, and as in effect at the time, that
statute permitted an individual who is not a licensed gun dealer
to sell or transfer up to four firearms in a calendar year,
provided that (1) the seller has a firearm identification card,
a license to carry firearms, or is otherwise exempted or
authorized by the statute, and (2) the purchaser has a permit to
purchase and a firearm identification card, license to carry
firearms, or is an exempt person, as defined in the statute.
G. L. c. 140, § 128A. In addition, "[a]ny sale or transfer"
pursuant to § 128A, must comply the provisions of G. L. c. 140,
§ 131E. G. L. c. 140, § 128A, inserted by St. 2014, c. 284,
§ 29. The requirements of § 131E are strict. A firearm may be
purchased "only upon presentment of: (i) a valid Class A or
Class B license to carry firearms issued under section 131; or
(ii) a valid firearm identification card issued under section
129B together with a valid permit to purchase a firearm issued
under section 131A; or (iii) a valid permit to purchase a
firearm issued under section 131A together with valid proof of
exempt status under section 129C." G. L. c. 140, § 131E, as
amended through St. 1998, c. 180, § 45. There was nothing in
the brief encounter in the driveway that suggested that any of
the statutory requisites had been met. From what the narcotics
officer could observe, the transfer of a gun was made without
any presentment of proof of licensure, authorization, or exempt
status.
8
officer was not required to 'exclude all possible innocent
explanations of the facts and circumstances'"). Reasonable
suspicion does not mean absolute certitude; it means facts that
would cause an officer to draw the reasonable inference that
unlawful activity was taking place. See Edwards, 476 Mass. at
347. Those facts were present here.
Considering all of the surrounding circumstances, the
officers had reasonable suspicion to believe that the defendant
was "participating in a gun [transaction] . . . [and] that the
[transaction] was unlawful." Commonwealth v. Rupp, 57 Mass.
App. Ct. 377, 382 (2003).6
Judgments affirmed.
6
In light of our disposition, we do not address the
defendant's argument that the judge erred in denying his motion
for directed verdict because the evidence should have been
suppressed. However, "we note that the constitutional
sufficiency of the evidence under Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), is to be measured upon that which was
admitted in evidence without regard to the propriety of the
admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,
98 (2010).