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Gun toter with no license protected by constitution

PostPosted: Wed Oct 17, 2001 4:21 pm
by Alan K
In these trying times it is great to see the Courts protect one's constitutional rights.

This case clearly defines a seizure by police.

Here goes:

The Supreme Judicial Court of Massachusetts (SJC) has just decided a case based upon the search and seizure of a pedestrian wherein a pedestrian was charged with carrying a firearm without a license and carrying ammunition without a license and without a firearm identification card. The court decided that the evidence should be suppressed on the ground that the police officer who stopped the defendant had based his action on an anonymous tip and did not have reasonable suspicion of criminal activity.

His conviction in the trial court was reversed.

The defendant was convicted in the District Court of carrying a firearm without a license and possession of ammunition without a firearm identification card. On appeal he claims error in the denial of his motion to suppress the firearm and ammunition taken from his person after a police officer stopped him based upon an anonymous tip and, he argues, without reasonable suspicion to believe he was committing a crime. The Appeals Court, concluding that the police officer had “insufficient basis to detain and search the defendant” when he did, vacated the order denying the defendant’s motion to suppress and reviewed his convictions…The SJC reached the same conclusion as the Appeals Court and reversed the decision of the Trial Court.

The Court summarized the facts that acting on an anonymous tip he had received, a Brockton Police Officer named McDermott, who was on duty and in uniform, drove his marked cruiser to the area of Main and Hancock Streets to look for a light-skinned Cape Verdean male, approximately five feet, six inches tall, wearing a blue baseball cap, a blue and white T-shirt, and blue jeans. The anonymous informant reported seeing the man take a handgun from his waistband and show it to others who were with him. “Within about three minutes of receiving the tip, McDermott came upon a group of Cape Verdean males walking along Main Street. One, the defendant, was similar in appearance to the description given by the informant. The officer recognized the defendant as someone he previously had told not to “hang around” in front of the stores in that neighborhood. He did not know whether the defendant was carrying a weapon. He drove alongside the group and said to the defendant, ‘Hey you..I want to speak to you’. The defendant looked at the officer, but otherwise kept walking and ignored his request. McDermott stopped his cruiser, got out, walked up to the defend and and, as two other officers arrived, pointed at him and said,’ Hey you, I wanna talk to you. Come here’. The defendant turned away from the officer, then stopped.

“The defendant moved his hands toward the front of his waistband. Concerned for his safety, McDermott drew his service weapon and told the defendant to raise his hands. The defendant did not respond, so the officer repeated his command. The defendant raised his hands and then turned and faced the officer, taking four steps backward.. Concerned that the defendant would flee, the officer handcuffed him, pat frisked him, and removed a loaded handgun from the front of the defendant’s waistband. When asked whether he had a license to carry the firearm, the defendant said he did not. he was placed under arrest.

The above were all the reported facts as summarized by the Court.

The SJC commented that the Appeals Court was correct that determining the precise moment of seizure was critical to the resolution of the seizure suppression. If seizure occurred when the officer drew his weapon out of concern for his own safety after the defendant mad a gesture toward his waistband, then the motion to suppress was correctly denied. If however seizure occurred when the officer pursued the defendant, pointed at him and said , “Come here, as the defendant argues, the result is altogether different.

“Police have seized a person in the constitutional sense only if, in view of all circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
United States v. Mendenhall, 446 U.S. 544 (1980) Under the Mendenhall test, the police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.

“The judge’s finding that McDermott’s initial request to the defendant to stop for questioning was not a seizure is supported by the record. McDermott remained in his cruiser while asking to speak to the defendant, and he did not impede or restrict the defendant’s freedom of movement. As cited in Commonwealth v. Murdough 428.Mass760.officers may make inquiry of anyone they wish and knock on any door, so long as they do not implicitly or expressly assert that the person inquired of is not free to ignore their inquiries”.

“However the officer’s second request had a compulsory dimension to it that his first request did not. Here after the defendant broke eye contact with , McDermott and refused to respond to the first request, McDermott stepped out of his cruiser and pursued the defendant.

The question that remains is whether McDermott, at the time of seizure, had an objectively reasonable suspicion of criminal activity, based on specific and articulable facts….The Appeals Court concluded that he did not.”, and the SJC agreed.

The tip, and McDermott’s corroboration of the defendant’s identity, did not provide sufficient indicia of reliability for suspecting that the defendant had a handgun.

(Rich C: Do you remember this type of problem from Summer Camp and lecture by Roy Bedard, sensei.)

Alan K

Gun toter with no license protected by constitution

PostPosted: Thu Oct 18, 2001 1:06 am
by RACastanet
Hi Alan. I do not remember the specifics of the Roy Bedard discussion except that it is important to be polite but ask if you are under arrest. If not, ask if you can leave and then do so. Some law enforcement types will try to get you to do or say something willingly that can be used against you.

Regarding handguns or firearms in general in Virginia, it is not likely here that someone would report a person to the police merely because they saw them with a weapon unless it was in a school or at the airport. There just is not that mindset down here.

The Virginia constitution mirrors the US version (or it might be the other way around) and in this state the 2nd Amendment is pretty much sacred. The CCW law is implemented by the highest court in the state and overrides all localities, and the law will not let any localities make new local amendments to it. There are a few old laws in some localities that stand (in the City of Richmond for instance, assault style weapons are limited to 20 round magazines and hunters are limited to 5 round magazines) so some awareness must exist.

Of course, we initiated 'Project Exile', which is an automatic 5 year federal sentence for 'illegal' firearms. Typically, that would be one used in a crime or even merely possessed by a felon. That law has has contributed to a decrease in the murder rate of more than 50% since 1995. By the way, that was the year the 'shall issue' CCW law went into effect, as well the abolition of parole, so we had a real shift in favor of the law abiding that year.

Personally, I often have a small revolver in my pocket. In the past year I have had two run ins with wildlife and called for a LEO to get a report for my insurance claim (one case last March, a deer ran into the driver side door while I was almost stopped - a very hormoned up deer I guess). One LEO was a county sherrif deputy and one was a county police officer. Both times I told them I had a concealed weapon and a permit in my pocket and both times the reply was 'thanks for telling me'. Neither asked to see either the weapon or the permit. So fortunately, there is no paranoia at least in central VA.

I know a few people that own properly permitted fully automatic weapons and like to fire them once in a while. They will often invite a local LEO (who would be thrilled at the offer to play with them) to join them in a full auto range day so should anyone report odd noises the LEO is already on site.

When I read about the football player (a Jet?) arrested Sunday for having an AR type rifle in his trunk (cased, unloaded, and locked) at the Meadowlands, I am disturbed by his stupidity - he is in NJ and NJ is not firearm friendly - and the reaction by the press. That just would not happen here. However, when I travel north I empty out my trunk as even a hollow point bullet will get you arrested in NJ. Have to shoot bad guys with practice ammo I guess.

Oh well, off the soapbox.


Gun toter with no license protected by constitution

PostPosted: Thu Oct 18, 2001 2:15 am
by gmattson
Hmmm. . . I think the police officer should simply have waited and watched, until the suspicious person who was seen showing-off his gun to his buddies, committed a crime and hopefully not killing the victim, before stopping him and politely asking if he had a permit to carry!

I'm shocked as well. . . Imagine finding a criminal type in that section of Brockton!

Gun toter with no license protected by constitution

PostPosted: Thu Oct 18, 2001 2:31 pm
by Alan K
Rich, I think that I would be quite happy if this quagmire of garbage presently on the books in Massachusetts, was repealed and the Virginia law was substituted.

Mass. law assumes that most citizens have felonious intent and either by poor or purposeful draftsmanship have created instances where a household member could possibly become a felon. In the example that Van Canna gave in his forum, he wondered if his wife could be exposed to prosecution if Van left the house and she were not licensed.


I loved tongue in cheek reference to that fine upstanding area of Brockton.

That case was a fluke and a real concession to the court being required to make this finding based upon the evidence.

The LEO was either very honest or the DA was honest and did not attempt to spoon feed the LEO.

What I didn't report, but will now was a concurring opinion by two of the SJC justices, Sosman and Cordy.

They had to agree with the result but criticized the fact that the evidence was reported in such a sparse manner as would not permit them to reverse the Appeals Court.

The concurring opinion said that we have never had a case that addressed the power of an officer to stop someone in order to make a demand for a license under G.L. c. 140 section 129C (permit to carry). They went on to say that the Commwealth's failure to brief any of the issues surrounding the proper exercise of such power, and therefore that issue was not before the court. They stated that this would be an intriguing suggestion, and one that would be at least arguable to justify a stop the facts in this case.

The concurring opinion was that the stop would be even more justifiable in this case because of the defendant's age.

It admitted that the purpose of the exclusionary rule was to deter police misconduct, and that the court believed that was not the case here and chastised the prosecution, "by the Commonwealth's failure to present the entirety for the officer's actions. As a result, our reversal now terminates a meritorious prosecution of an underage youth who was carrying a loaded handgun concealed on his person ashe and his young friends proceeded along the streets of Brockton. There are few more dangerous street scenarios than that of an adolescent with a gun...I then join in the result reached by the court, but note that it is a regretable result that was probably avoidable."

It is not my purpose to agree with or criticise court decisions; however the concurring opinion will now be a red flag to LEO's and DA's to follow the dicta of the concrring opinion in this case and let it be known that the SJC is not going liberal.

Alan K

Gun toter with no license protected by constitution

PostPosted: Fri Oct 19, 2001 6:40 am
by Gene DeMambro
Preface: I am NOT anti-gun. I actual admire some poeple for the physical and mental skill they show when the talk about their firearms. Hopefully (when I'm not so lazy) I'll be able to own one myself.

This isn't a gun case.

This is a search and seizure case. The fact that the police were searching and then (illegally) seized a gun is not really material. It could have been drugs, stolen goods or whatever, and the outcome will still be the same.


Gun toter with no license protected by constitution

PostPosted: Mon Oct 22, 2001 3:14 pm
by Alan K

You are correct when you state that this case was not a gun case and was in fact a seizure case. I believe that the concurring opinon pointed out that the only thing which prevented it from becoming a gun issue was the fact that the prosecution did not prepare a case or even remotely present a case concerning the right of the LEO to make inquiry at any time of the suspect of his possession of a license to carry.

There is a fine post in Van Canna sensei's
forum of the Emerson Case which came down from the 5th Circuit Court of Appeals.

We obviously do not have the case as reported but enough to determine that there is enough opinion of both pro and con to take solace of the merits of this give and take decision.

I find a bit of comfort in what I believe the decision encompassed was that the right to bear arms does exist but congress can impose "reasonable standards" or limitations.

Reaonable limitations resulting in a standard is the test that most courts apply in a variety of cases, as opposed to the words subjective and objective standing alone.

Important areas of doubt, that we are all concerned with, in the Massachusetts statute,
are provisions which make instant felons out of individuals by operation of law.

The most flagrant example would be in a scenario where a family member, having a license, locks his weapons in a safe lock-box, leaves the house to go to work.
Do the unlicensed family members become instant felons?

This case could have an important bearing on such matters.

Alan K