COMMONWEALTH v. LEIF L., a Juvenile. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-887
COMMONWEALTH
vs.
LEIF L., a juvenile.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the juvenile was adjudicated delinquent
by reason of unlawful possession of a firearm (G. L. c. 269,
§ 10 [a]), unlawful possession of ammunition (G. L. c. 269,
§ 10 [h] [1]); and unlawful possession of a weapon (here, a
switchblade knife) prohibited by G. L. c. 269, § 10 (b). On
appeal, the juvenile argues that the loaded firearm, which the
judge held was lawfully seized in plain view, should have been
suppressed, because the incriminating nature of the firearm was
not immediately apparent. Because we agree that the seizure of
the firearm was unlawful, we reverse the order denying the
juvenile's motion to suppress the firearm, the ammunition, and
1 A pseudonym.
the switchblade discovered incident to his arrest, and we set
aside all three adjudications of delinquency. Further, we
accept the Commonwealth's concession that there was insufficient
evidence the defendant knew the firearm was loaded, and we
therefore order judgment for the juvenile on the ammunition
charge. Finally, in light of the recent decision in
Commonwealth vs. Canjura, 494 Mass. 508 (2024) (holding that
statutory ban on possession of switchblade knives violates U.S.
Constitution's Second Amendment), we order judgment for the
juvenile on the switchblade charge.
Background. We summarize the judge's findings of fact,
supplemented by testimony that the judge explicitly or
implicitly credited. See Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015). On September 27, 2021, an anonymous 911
caller reported that he had seen a group of young males on the
porch of a multi-unit Brockton residence and that he saw one of
the males, who was wearing a white hoodie, "wave a gun around."2
Brockton police officers Shannon O'Donnell and Wilson Alves
responded to the address immediately and observed the juvenile
2 The caller also reported that some of the males, including
the juvenile, were wearing black ski masks. The dispatcher did
not, however, relay this information to the officers on the
scene, and they were unaware of it at the time the search and
seizures took place. For this reason, the Commonwealth agreed
at oral argument that the report of masks is not relevant to our
analysis.
2
wearing a white hooded sweatshirt. Officer O'Donnell recognized
one of the other individuals as someone she knew from a prior
shooting investigation. Upon exiting the vehicle, the officers
ordered the individuals to put their hands on their heads, and
the officers began to pat frisk them.
At about this time, Detective Michael Bunker and another
officer arrived on scene. Detective Bunker went onto the porch
to "cover" Officer O'Donnell. While there, he observed "what
looked to be like a firearm, the tail end of a firearm"
protruding from a small cross-body bag located next to where the
juvenile had been seated. He picked up the bag and noticed that
its weight was consistent with the presence of a gun. Detective
Bunker seized the bag, unzipped it fully, and removed a firearm,
which turned out to contain one round of ammunition.
After discovering the firearm, the officers learned that
the juvenile was a minor and therefore could not possess any
firearms license, so they arrested him. Officer O'Donnell
conducted another, more thorough search of the juvenile incident
to his arrest and found a switchblade on his person.
The juvenile was charged with unlawful possession of a
firearm, unlawful possession of ammunition, and unlawful
possession of the switchblade. His motion to suppress the
fruits of what he asserted were an unlawful search and seizure
3
was denied. He was adjudicated delinquent on all three counts,
and he now appeals.
Discussion. 1. Suppression. In reviewing a ruling on a
motion to suppress, "we adopt the motion judge's factual
findings absent clear error," but we "independently determine
whether the judge correctly applied constitutional principles to
the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818,
821 (2008). Here, the Commonwealth's case depends most
immediately on the validity of the firearm's "plain view" (or
"plain feel") seizure. It was only after that seizure that
(1) the juvenile was asked if he had a license, (2) Officer
O'Donnell learned that he was a juvenile and arrested him, and
(3) a search incident to arrest led to the discovery of the
switchblade. For the following reasons, we conclude that the
seizure was invalid and thus that the firearm and switchblade
should have been suppressed.3
3 We reject the Commonwealth's suggestion that the motion to
suppress could have been denied on the basis that the juvenile's
supporting affidavit dated May 3, 2022, was not properly signed.
The juvenile's electronic signature could have been lawfully
affixed pursuant to the Supreme Judicial Court's Updated Order
Authorizing Use of Electronic Signatures by Attorneys and Self-
Represented Parties, issued June 10, 2020, ¶¶ 2-5. See
https://www.ma-appellatecourts.org/docket/OE144. That order
provides that if a party has a good faith basis to believe that
an electronic signature was unauthorized, "a challenge may be
raised promptly by way of motion," which the Commonwealth did
not do here. See id. ¶ 9.
4
A police officer may seize objects inadvertently discovered
in plain view if the officer: (1) is lawfully in a position to
view the object, (2) has a lawful right of access to the object,
and (3) its incriminating character is immediately apparent.
See Commonwealth v. D'Amour, 428 Mass. 725, 730-731 (1999).
"[W]hether a thing plainly viewed or plainly felt may be
constitutionally seized is to be measured by whether there is
probable cause to believe in the incriminating character of the
object." Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 402
(2004), citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)
(plain feel), and Arizona v. Hicks, 480 U.S. 321, 326-327 (1987)
(plain view).
The Supreme Judicial Court has previously held that "the
incriminating character of [a] weapon . . . [is] immediately
apparent and remain[s] so until such time as the officers
ascertain[] whether the defendant had a license to carry a
firearm." Commonwealth v. Johnson, 461 Mass. 44, 51 (2011).
More recently, however, the court recognized "that a general
prohibition against carrying a firearm outside the home is
unconstitutional" in light of New York State Rifle & Pistol
Ass'n v. Bruen, 597 U.S. 1 (2022). Commonwealth v. Guardado,
491 Mass. 666, 690 (2023), S.C., 493 Mass. 1 (2023).
"Accordingly, the absence of a license is necessary to render a
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defendant's possession of a firearm" criminal activity.
Guardado, supra. Therefore, the incriminating character of the
firearm in this case was immediately apparent only if there was
probable cause to believe that the juvenile was unlicensed.4
Here, at the time of the seizure, police had no such
probable cause. First, although the juvenile was ultimately
found to be too young to possess any firearm license under
Massachusetts law, there is nothing in the record to support a
finding that the officers recognized or could have recognized
that the juvenile was a minor based on his appearance. Contrast
Commonwealth v. Karen K., 491 Mass. 165, 179 (2023) (officer
coming face to face with juvenile "could have observed that she
likely was too young to be licensed to carry a firearm in the
Commonwealth"). Indeed, the testimony was that police learned
the juvenile's age and licensure status only after seizing the
weapon and arresting the juvenile.
Second, the information provided by dispatch and
corroborated by the officers on scene was inadequate to infer
that the juvenile was unlicensed. The dispatch recordings and
testimony from the officers confirm that police were informed
only that a man in a white hoodie was seen waving a firearm at
4 The Commonwealth does not argue that the firearm was
seized as evidence of another crime known to police.
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the address. Officer Alves testified that he was not even sure
what the caller meant when he reported a man "just waving the
gun." Once on scene, police testified that they observed the
group "just sitting there talking," and that no one seemed angry
or nervous or made any furtive gestures.
Nevertheless, the Commonwealth argues that police could
reasonably believe that the suspect waving a firearm was
unlicensed because a licensed gun owner would treat a firearm
with more respect. The cases cited by the Commonwealth in its
brief do not adequately support this proposition.
In both Commonwealth v. Manha, 479 Mass. 44, 45 (2018), and
Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), the court
agreed that reasonable suspicion existed to justify a stop and
frisk of the defendants based on 911 reports that the defendants
were handling firearms in a manner that either constituted a
crime or suggested imminent criminal activity. See Manha, supra(911 caller told police that suspect pointed firearm at her and
threatened her); Haskell, supra ("the act of publicly loading a
handgun is an event that creates a reasonable suspicion that a
crime may be about to take place"). "Waving" a firearm, without
more, does not rise to this level. See Haskell, supra at 793("Because it is legal in Massachusetts to carry a handgun if
properly licensed, a report that an individual possesses a
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handgun, without any additional information suggesting criminal
activity, does not create a reasonable suspicion that a crime is
or will be committed").
The only case cited by the Commonwealth that recognizes a
possible nexus between a person's handling of a weapon and the
person's licensure status is Commonwealth v. Edwards, 476 Mass.
341, 346-347 (2017). In Edwards, police received a 911 report
that, among other suspicious behaviors, the suspect was openly
holding a gun in his hand. Id. at 346. In assessing whether
the officer had reasonable suspicion to justify an investigatory
stop, the court considered the officer's testimony that, in his
experience, "trained, licensed owners of a handgun typically
carry their firearm in a holster." Id. Nevertheless, the court
acknowledged that "a person licensed to carry a gun is not
required to carry it holstered and concealed from view," and as
such, this fact added only "marginally" to the reasonable
suspicion calculus. Id. at 346 n.10. Ultimately, the court
agreed that a combination of factors, including the suspect's
handling of the firearm, "just barely" met the reasonable
suspicion threshold. Id. at 347.
Here, none of the officers testified about their experience
with specific behaviors exhibited by licensed or unlicensed
firearm owners or about how that experience might have
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contributed to any belief that the juvenile was unlicensed.
Even if police had testified that licensed owners rarely "waved"
around a firearm, however, it would add only marginally to the
analysis, where such behavior is not illegal in and of itself.
Moreover, we are grappling here with the probable cause
standard; if the facts in Edwards -- many of which were not
present here -- "just barely" rose to the level of reasonable
suspicion, then the facts known to police at the time of the
seizure here cannot establish probable cause to believe that the
firearm was illegally possessed.
In deciding that there was inadequate basis to seize the
firearm in this case, we do not question whether police who spot
a firearm in plain view under similar circumstances may make
reasonable inquiry about the ownership of the firearm and the
owner's licensure status. Nor do we suggest that officers,
while making those inquiries, could not take reasonable steps,
such as placing themselves between the persons and the firearm,
to ensure that no one within reaching distance could quickly
grab and use the gun. It might also be permissible to
temporarily secure the firearm if there is a reasonable
suspicion that its presence poses a risk to officer safety. But
these are not facts and arguments with which we have been
presented, and we do not decide those issues. Instead, here we
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have a case where officers, armed with little more than the
knowledge that the juvenile was seen in possession a firearm,
seized a firearm without any articulable reason to suspect that
the firearm was unlawfully possessed or used.
In sum, we conclude that the firearm was unlawfully seized
and that the knife found on the juvenile incident to his arrest
was the fruit of that unlawful seizure. Therefore, the motion
to suppress the firearm, the ammunition contained in the
firearm, and the switchblade should have been granted.
2. Sufficiency of evidence. The Commonwealth has
correctly conceded that evidence of the juvenile's knowledge
that the gun was loaded was insufficient, so that the
adjudication for unlawful possession of ammunition cannot stand.
See Commonwealth v. Brown, 479 Mass. 600, 601 (2018).
3. Second Amendment issue. The juvenile argues, as he did
in the trial court, that the ban in G. L. c. 269, § 10 (b), on
the possession of switchblade knives violates the U.S.
Constitution's Second Amendment. The Supreme Judicial Court
recently agreed with this argument and invalidated the ban. See
Commonwealth vs. Canjura, 494 Mass. at 509. The adjudication on
the switchblade charge thus cannot stand.
Conclusion. The order denying the juvenile's motion to
suppress is reversed. The adjudications of delinquency are
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vacated and the verdicts are set aside. On the charges of
delinquency by reason of unlawful possession of ammunition and
unlawful possession of a weapon prohibited by G. L. c. 269,
§ 10 (b), judgment shall enter for the juvenile.
So ordered.
By the Court (Sacks,
Ditkoff & Toone, JJ.5),
Clerk
Entered: October 4, 2024.
5 The panelists are listed in order of seniority.
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