DocketNumber: 16–P–1605
Citation Numbers: 95 N.E.3d 299, 92 Mass. App. Ct. 1117
Filed Date: 12/7/2017
Status: Precedential
Modified Date: 10/18/2024
The defendant, Evan Burton, appeals after he was convicted of carrying a firearm without a license, see G. L. c. 269, § 10(a ), and carrying a loaded firearm without a license, see G. L. c. 269, § 10(n ). Because the Commonwealth concedes that the colloquy conducted incident to the defendant's stipulation to the facts supporting his convictions was defective,
The defendant claims that the stop and frisk resulting in discovery of a loaded firearm in his possession was not justified by reasonable suspicion. We agree. A police officer may only make an investigatory stop where "specific and articulable facts and reasonable inferences therefrom" provide "reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime." Commonwealth v. Wilson,
Passing the question whether the information contained in the dispatch was sufficiently detailed to implicate the defendant as the "unknown male in a white t-shirt fleeing on a bike heading from Ruggles [Street] towards Columbus [Avenue]," away from the area of an anonymous report of "shots ... fired," there was nothing in the information available to police to indicate whether the fleeing male was a victim, a witness, the shooter, or an entirely uninvolved passerby.
The judgments are vacated and the findings are set aside. In addition, the order denying the defendant's motion to suppress is reversed and a new order shall enter allowing the motion. The rescript is to issue forthwith.
So ordered.
Judgments vacated; order reversed, and new order entered.
The colloquy failed to include an explanation that the defendant was waiving certain fundamental constitutional rights, including his right to cross-examine witnesses and his privilege against self-incrimination.
As the Commonwealth acknowledged at oral argument, there is no evidence to support the motion judge's description of the fleeing male as the "shooter" in his order denying the defendant's motion to suppress.
The other factors cited by the Commonwealth to support reasonable suspicion, including the "high-crime area" in which the incident occurred, the defendant's suspected gang affiliation, and his nervous demeanor upon being approached by police, are unavailing for essentially the same reason: nothing in the report implicated the defendant's involvement in criminality, as compared to his quite understandable flight from a location when shots were fired.