DocketNumber: No. 12-P-1970
Citation Numbers: 85 Mass. App. Ct. 134
Judges: Katzmann
Filed Date: 3/25/2014
Status: Precedential
Modified Date: 6/25/2022
Following a jury-waived trial, a District Court
Background. On March 19, 2012, at 10:00 a.m., police were dispatched to Cape Cod Community College based on a report that security officers had observed ammunition in plain view inside a locked Jeep in a college parking lot. Officer Kevin Donovan of the Barnstable police department responded and met two security officers at the lot. The security officers identified the vehicle, which had decals attached to it, including “Kill ‘Em All Let God Sort It Out” and “Sniper No Need to Run — You’ll Only Die Tired.” Additionally, there was a sign hanging from the vehicle’s rearview mirror that said “Funeral.” Officer Donovan looked through the closed window of the vehicle and observed in the console area three rounds of ammunition for a semiautomatic weapon — a nine millimeter round, a .38 caliber round, and an empty nine millimeter shell casing — and a camping knife. After seeing the ammunition, Officer Donovan became that concerned there was someone on campus with weapons. The college was open, and classes were being conducted. By checking the license plate, Officer Donovan learned that the vehicle was registered to Brenda Kelly.
Soon after Officer Donovan arrived at the scene, the defendant, a student at the school, walked down a hill towards the vehicle. The defendant was wearing Army camouflage pants, black boots, a dark black sweatshirt, and a camouflage hat, and he had a black backpack strapped to his back. The officer testified that when the defendant was about thirty to fifty yards
The defendant was arraigned on March 20, 2012, with one count of carrying a firearm without a license, one count of carrying a firearm on school grounds, and one count of possession of a firearm without an FID card. After an evidentiary hearing, at which Officer Donovan was the sole witness, the motion judge denied the defendant’s motion to suppress the items obtained as a result of the officer’s backpack search. The judge found:
“Officer Donovan was justified in conducting a pat-frisk of the defendant and the backpack based on a reasonable apprehension that the defendant might be armed. The location, an open college campus, heightened concerns for his safety and the safety of others who were on campus. The defendant’s appearance and aggressive posture contributed to Officer Donovan’s legitimate concern. Although the officer was more focused on the ammunition, the language on the decals affixed to the vehicle is an additional factor that would warrant an individual in the officer’s position to fear that his safety or the safety of others was in jeopardy.”
Discussion. The defendant argues the evidence obtained as a result of Officer Donovan’s search of the backpack should have been suppressed because Officer Donovan exceeded the scope of an initially legitimate Terry-type
In reviewing a determination on a motion to suppress, “we accept the [motion] judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ The judge determines the weight and credibility of the testimony. ‘[Ojur duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004) (citations omitted).
“In ‘stop and frisk’ cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances.” Commonwealth v. Silva, 366 Mass. 402, 405 (1974). The purpose of a Terry-type stop and frisk is not to discover evidence of a crime, but to protect police and the public and allow police officers to pursue their investigation without fear of violence. Terry v. Ohio, 392 U.S. 1, 27, 29 (1968). See Commonwealth v. Almeida, 373 Mass. 266, 270-271 (1977). An officer is entitled to take reasonable precautions, Commonwealth v. Ferrara, 376 Mass. 502,
While the defendant acknowledges that the stop and the body frisk were justified, he argues that the search of the backpack exceeded the scope of a permissible search under Terry v. Ohio, supra. The defendant argues that after the officer found no weapons in his body frisk, and after the officer found the defendant’s FID card, which indicated that he was allowed to carry ammunition in a locked car, there was no basis for a continuing suspicion to justify a further patfrisk and search of the backpack. We disagree.
First, regardless whether the defendant possessed an FID card, there were sufficient articulable facts to create a reasonable suspicion for the patfrisk and search of the backpack. In the wake of school shootings such as occurred at Columbine, Colorado; Santee, California; and Newtown, Connecticut, “we take judicial notice of the actual and potential violence in . . . schools,” Commonwealth v. Milo M., 433 Mass. 149, 156 (2001), and note the heightened sensitivity of school officials to signs that a student may have brought guns onto school property and might embark on a shooting rampage. See generally G.S. Katzmann (ed.), Securing Our Children’s Future: New Approaches
As Terry instructs, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. “The nature of the suspected crime and its location abundantly supported the frisk. . . . The circumstances required the protection of the police, students, faculty, and administrators from danger.” Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 285-286 (2009). See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 n.7 (1997) (a frisk is justified when a reasonable person in the officer’s position would fear for his or her own safety). Even when there is ambiguity about the risk, police do not need to accept the risk of ambiguity and to gamble with safety. Commonwealth v. Johnson, 454 Mass. 159, 164 (2009).
The same factors justifying the patfrisk of the defendant’s person justified a patdown of the backpack he carried. A rule prohibiting the search of the bag would allow the defendant to leave the scene with a weapon that could be used against the officer as soon as the defendant regained possession of the bag. See Commonwealth v. Pagan, 440 Mass. 62, 72-73 (2003).
Quite apart from judicial notice, it is significant that the
“Whoever, not being a law enforcement officer, and notwithstanding any license obtained by him under the provisions of chapter one hundred and forty, carries on his person a firearm as hereinafter defined, loaded or unloaded or other dangerous weapon in any building or on the grounds of any elementary or secondary school, college or university without the written authorization of the board or officer in charge of such elementary or secondary school, college or university shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. For the purpose of this paragraph, ‘firearm’ shall mean any pistol, revolver, rifle or smoothbore arm from which a shot, bullet or pellet can be discharged by whatever means.”
In short, the defendant’s claim — that once the police officer determined that he had an FID card permitting him to possess ammunition, reasonable suspicion to continue the search of his backpack vanished — fails under the terms of the statute. A license to possess ammunition (or a firearm) is not a defense to prosecution under § 10(j) — lacking the permission of school authorities, a suspect would still be subject to prosecution. See Commonwealth v. Sayers, 438 Mass. 238, 240 (2002).
Finally, as Officer Donovan testified and as the motion judge found, he read the defendant the Miranda rights after he pat frisked him for weapons. As has been noted, after he removed the backpack from the defendant and advised him that he was going to pat frisk it, the defendant suddenly said, “Wait, there
Judgments affirmed.
The defendant acknowledges that the patfrisk of his body was justified.
Terry v. Ohio, 392 U.S. 1 (1968).
The Commonwealth does not contend, and we do not address, the argument that the search was sustainable on the alternate ground that it was incident to a lawful arrest. “The search may precede the formal arrest so long as probable cause to arrest exists independently of the results of the search, and where there is also probable cause to believe that the object searched contains evidence of the crime for which the defendant is being arrested.” Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 617, cert, denied, 132 S. Ct. 327 (2011) (citations omitted).
We discern no merit in the defendant’s contention that the motion judge ignored critical facts when she determined that Officer Donovan acted reasonably when he searched the defendant’s backpack. The judge did not err in her findings of fact or in her ultimate determination based upon them.