Opinion
15-P-424
05-03-2016
COMMONWEALTH v. ADONIS ALVAREZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, following a jury-waived trial in the Superior Court, of resisting arrest and various firearm offenses, arguing that his motion to suppress should have been allowed because the police lacked reasonable suspicion to stop or probable cause to arrest him. We affirm.
The defendant makes no argument regarding his conviction for resisting arrest.
Background. Following an evidentiary hearing on the defendant's motion to suppress where the only witness was Boston police Officer Jonathan Hester, the motion judge made oral findings on the record. The motion judge credited Hester's testimony "in its entirety[,]" and we summarize her findings.
June 11, 2014, was a "warm summer evening." On that date, Hester and other members of the Boston police department (BPD) were on assignment at the McKinley High School graduation. School officials were concerned that the integration of various groups at the graduation would become problematic due to a "history of problems and violence" between the groups. Around 7:11 P.M., the graduation ceremony ended and approximately one hundred people filed outside. "The officer made observations of several groups outside of the graduation, and specifically observed individuals known to him with a gang affiliation, and with prior violence, who appeared to be upset and making telephone calls." This was consistent with Hester's understanding and experience, as a ten-year veteran of the BPD, "that such calls would be made when trouble was brewing to bring in more assistance to the group."
Around this time, Hester observed the defendant, "who, in spite of the warm and balmy weather, was attired in a hooded sweatshirt and sweatpants[,]" approaching the scene. Hester observed that the hood on the defendant's sweatshirt was pulled tightly around a hat he was wearing, so that his face was obscured. "The officer made further observations of a heavy object "weighing down the front pocket of the sweatshirt" the defendant was wearing. Other officers saw and alerted Officer Hester that they had seen the defendant approach people within a group, whisper to those individuals, and tug at his pocket. Hester saw the defendant's hand in the center pocket and noticed that he was holding his hand tight to his waist, causing him to have an unnatural gait. From his specialized training in the characteristics of an armed gunman, Hester believed "that these are common characteristics of an armed person."
Hester and his partner approached the defendant and asked to speak with him. The defendant offered his hand for a handshake and Hester identified himself as a police officer, "at which time the [d]efendant became wide-eyed and immediately made an attempt to run . . . while simultaneously reaching for his waist, in the same area that the officer had previously seen the heavy object." Hester reached out and grabbed the defendant as he turned to run. The defendant fell to the ground with his hands underneath him. Concerned that the defendant was armed, Hester pulled back one of the defendant's arms in order to secure him. As he did so, he observed a firearm on the ground underneath the defendant. The defendant told Hester "I have another one in my waist[,]" and Hester lifted the defendant's sweatshirt to reveal another firearm. Both were loaded. Hester asked the defendant if he had a license to carry, and the defendant "answered I don't have one."
The motion judge found that, based upon Hester's observations and the defendant's attempt to flee after Hester announced himself, Hester had reasonable suspicion to stop the defendant for illegally carrying a firearm. Once the defendant fell to the ground and Hester discovered two firearms on his person for which the defendant stated he did not have a license, Hester had probable cause to arrest. Trial proceeded before a different judge, and once again Hester was the only witness. After crediting Hester's testimony, the trial judge convicted the defendant of two counts of carrying a firearm without a license, two counts of carrying a loaded firearm, and resisting arrest.
The judge found that Hester's decision to stop the defendant was based upon Hester's observations of: the defendant's attire, which "simply did not fit in with the weather conditions"; his "physical actions in holding his arm tight against the waist and walking in an unusual gait"; a heavy object in the front pocket of the defendant's hoodie; and the defendant's conversations "with the individuals on scene, in which the [d]efendant was observed whispering . . . and tugging on the pocket."
Discussion. We review the motion judge's findings for clear error, and "independently determine the correctness of [her] application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "The clear error standard is a very limited form of review[,]" Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990) (quotation omitted), wherein we defer to the findings of the motion judge who heard the testimony and observed the witness. Commonwealth v. Sanna, 424 Mass. 92, 97 (1997).
Because the defendant's only challenge on appeal is to the denial of his motion to suppress, we limit our discussion to that issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The defendant does not argue error in the judge's legal conclusions. Rather, he challenges her assessment of Hester's credibility and the weight she assigned his testimony. Upon our review of the transcript, the judge's findings "are supported by the evidence [s]he found credible" and "we accept them." Commonwealth v. Narcisse, 457 Mass. 1, 2-3 (2010). Hester permissibly relied on his observations of the defendant's behavior, including tugging at the heavy object in his pocket while whispering to members of a group Hester knew to be agitated and associated with violence, in determining whether to stop and inquire of the defendant. Commonwealth v. Gomes, 458 Mass. 1017, 1019 n.6 (2010). Hester reasonably suspected that the defendant was carrying a firearm based upon his "walking with his . . . arm held stiff and straight against his body," Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007), and the judge properly considered the defendant's "apparent desire to depart from the scene" after Hester announced himself. Commonwealth v. Mubdi, 456 Mass. 385, 398 (2010). Once the defendant was stopped it was not unlawful for Hester to observe the first firearm in plain view, Commonwealth v. Watson, 430 Mass. 725, 733 (2000), and the defendant's statements provided probable cause to arrest him. See Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996) (carrying a firearm without a license is a crime). The findings amply support the judge's conclusion that Hester had reasonable suspicion to stop, and probable cause to arrest, the defendant for illegally carrying a firearm.
The defendant does not argue that his statements were involuntary.
Judgments affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 3, 2016.