COMMONWEALTH v. MOORE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant, Nathaniel Moore, was found guilty of carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a). He appeals, arguing that the motion judge erred in denying his motion to suppress the firearm, and that the trial judge erred in denying his motion for a required finding of not guilty. We affirm, essentially for the reasons well explained by the judges who heard the case.

Background. We supplement the motion judge's findings of fact with uncontested details from the hearing on the motion to suppress.² On November 1, 2013, at 10:30 a.m., a confidential informant (C.I.) contacted Detective Sergeant Matthew Skwarto of the Taunton Police Department; the C.I. informed Skwarto that the defendant had in his possession a .22 caliber handgun and would be traveling soon by the Taunton Green ³ in a Jeep Grand Cherokee headed for Weir Street.⁴ Skwarto, who was one-half hour away from Taunton, called the Taunton Police Department and relayed the information to Officer Brett Collins. Collins informed his shift supervisor, Sergeant Richard Carreiro, of Skwarto's message, and of the fact that there was a warrant outstanding for the defendant's arrest. Skwarto also called Carreiro to relay the C.I.'s information; during the call, Carreiro informed Skwarto of the defendant's outstanding warrant.

Collins then led a brief planning meeting with Taunton Police Officers Robert Travers, Peter MacDougall, Troy Enos, Carreiro, Honorto Santos, and James Coehlo. The officers agreed to make a “felony stop,” whereby officers stand twenty-five to thirty yards behind a vehicle, guns drawn, and take cover; the occupants are then ordered out of the vehicle for the search. A felony stop is routine for high risk stops, which include those involving a gun. The officers also considered the defendant's prior conviction of illegal possession of ammunition, and his history of violence with officers of the Taunton Police Department. The officers involved in the stop were particularly familiar with the defendant; Skwarto had been in several interactions with the defendant where the defendant's actions were violent and assaultive toward police. Collins also had responded to calls reporting the defendant's out of control and aggressive behavior at a hospital.

After the planning meeting, the officers watched the Taunton Green. Within several minutes of Collins's call with Skwarto, the officers observed the defendant in the front passenger seat of a green Jeep; in addition to the driver, there also was a rear seat passenger. Collins activated his lights, and the Jeep pulled over and stopped.

Once the vehicle stopped, Collins and the other officers approached it with guns drawn. Enos and MacDougall witnessed the defendant making what they believed were furtive gestures; both immediately ordered him to keep his hands where they could see them. The defendant initially disobeyed, and MacDougall witnessed the defendant making a motion consistent with the racking of an automatic firearm.

Officers eventually removed the defendant from the Jeep and conducted a patfrisk of his person. They also searched the front compartment of the Jeep in the immediate area near where the defendant had been sitting. They recovered a loaded firearm under the center console on the passenger's side of the Jeep.

After a hearing on the defendant's motion to suppress, the judge denied the motion, concluding that the stop was justified because the officers had reasonable suspicion to believe that the defendant unlawfully possessed a firearm, given the C.I.'s tip to Skwarto and the officer's corroboration of much of the information. The judge also explicitly credited the officers' testimony that they knew about the warrant for the defendant's arrest before the stop, which provided them with an independent basis for the stop.

The defendant filed a timely motion to reconsider, challenging both the conclusion that the officers knew about the warrant before the stop, and the judge's conclusions that the scope of the stop was consistent with a Terry-type stop, and that the degree of force employed did not convert the stop into an arrest. After reconsideration, the judge again denied the motion, concluding that the degree of the officers' intrusion was proportional to the degree of suspicion that prompted the intrusion. She also reiterated her finding that the officers were credible when they testified that they knew about the warrant before the stop.

At trial, at the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, arguing that the Commonwealth had not met its burden in terms of both the facts and the law. The judge denied the motion from the bench, explaining:

“[B]ased on the evidence that I've heard and particularly when viewed in the light most favorable to the Commonwealth, it appears that an officer did locate the -- what has now been opined to be a firearm by a [credentialed] witness that was found in a location that was adjacent to and immediately accessible to the Defendant; and the Defendant was observed in that immediate vicinity for at least an appreciable period after the other two occupants of the vehicle had departed the vehicle. Also, at least in the mind of one officer, he observed the Defendant acting in such a way that his movements demonstrated a lingering interest in something located toward his feet and the floorboard of the -- of the front passenger seat in an area immediately adjacent to where the firearm was eventually found.”

Discussion. Motion to suppress. First, the defendant argues that the judge erred when she credited the testimony of three police officers that they knew there was a warrant for the defendant's arrest before they stopped him. The defendant notes that records from the Criminal Justice Information System (CJIS) indicate that no one checked it until after the stop, and, therefore, all of the officers were lying when they said that they knew in advance about the warrant.

“In reviewing a ruling on a motion to suppress, we ‘accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.’ ” Commonwealth v. Neves, 474 Mass. 355, 360 (2016), quoting Commonwealth v. Washington, 449 Mass. 476, 480 (2007). “The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court.” Neves, supra, quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980).

We see no error. CJIS is not the only possible source for information about outstanding warrants; a board of probation record also often shows such information, depending on the status of the warrant. Collins testified that police officers “talk about who has warrants. Sometimes warrants are printed out off of WRMS [the Warrant Management System] who's issued warrants for the day, who's issued warrants out of what court on certain days, so it's kind of a general knowledge in discussions between officers, somebody we know and we all have knowledge of has warrants.” And, as the Commonwealth points out, this defendant was well known to the officers involved in stopping him; it is not surprising that they knew that he had an outstanding warrant from two weeks earlier in a nearby court.

The defendant also argues that, even if the officers' testimony is credited, the search that produced the loaded firearm exceeded the scope of a lawful search incident to arrest. We need not reach this issue because the judge denied the motion to suppress on the grounds that the stop and subsequent search were justified by the officers' reasonable suspicion that the defendant had a gun, and their concern for their safety during the investigation.

The defendant argues that, in order to stop the Jeep in the manner that they did, the police needed probable cause. In his view, the level of force the officers showed –- and the search of the passenger side of the Jeep -– converted the stop into an arrest, requiring probable cause, rather than merely reasonable suspicion. To determine whether an investigatory stop has become an arrest, “the pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances” (quotation and citation omitted). Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 199 (2003). That is, the degree of intrusiveness that is permitted is that “which is proportional to the degree of suspicion that prompted the intrusion” (quotation and citation omitted). Id. “The extent of the danger is important in assessing whether the force used by the police in the encounter was commensurate with their suspicion. The police are, of course, entitled to take reasonable precautions for their protection.” Commonwealth v. Willis, 415 Mass. 814, 820 (1993). Proportionality is a dynamic, not a static, principle, as suspicion may escalate over the course of a stop. See Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001).

The defendant argues that Emuakpor supports his argument that the force used by the police was not commensurate with their suspicion. We disagree. In Emuakpor, the facts, of course, are different. The officers were responding to a report of a recent armed robbery. Emuakpor, 57 Mass. App. Ct. at 193-195. They pulled a car over on the highway, blocking it, and then approached the car with guns drawn. Id. at 195. As they approached, the officers noticed that the suspects matched the information the officers had been given. Id. The officers then ordered the suspects to get out of the car, handcuffed them, and pat frisked them for weapons; eventually, they discovered a BB gun and stolen items. Id. at 195-196. This court concluded that the officers' actions did not constitute an arrest; rather, their actions were justified, including the use of handcuffs, based on their level of suspicion before and during the encounter. Id. at 199.

In the present case, we conclude that, contrary to the defendant's argument, the circumstances justified the officers' actions. Prior to the stop, the officers considered the C.I.'s report that the defendant possessed a firearm, the defendant's significant criminal history, the officers' own familiarity with the defendant, including his history of reacting violently when he was arrested, and the presence of two other individuals in the Jeep. From these facts, the officers reasonably anticipated the possibility that the encounter would be a dangerous one. As in Emuakpor, that degree of danger warranted the officers' use of drawn weapons while approaching the defendant's vehicle. Moreover, the defendant's actions after the Jeep was stopped clearly warranted further action. As noted, the officers observed the defendant reach below their line of sight; the defendant initially disobeyed orders to show his hands; and, finally, one officer witnessed the defendant make a motion consistent with the racking of an automatic firearm. We conclude, as did the motion judge, that the resulting reasonable suspicion justified detaining the defendant long enough to pat frisk him and to search the front passenger compartment of the car. See Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 313 (2013) (“The crucial safety question is the extent of the danger at the time the police used force”).

Since reasonable suspicion is required for an investigatory stop, see Terry v. Ohio, 392 U.S. 1, 21 (1968), we review the defendant's remaining challenges to the denial of his motion to suppress for the presence of reasonable suspicion, not probable cause. “When reasonable suspicion is based on an informant's tip, the tip must bear adequate indicia of reliability, i.e., ‘the Commonwealth must show the basis of knowledge of the source of the information (the basis of knowledge test) and the underlying circumstances demonstrating that the source of the information was credible or the information reliable (veracity test).’ ” Commonwealth v. Arias, 81 Mass. App. Ct. 342, 348 (2012), quoting Commonwealth v. Lopes, 455 Mass. 147, 155-156 (2009). See Commonwealth v. Mubdi, 456 Mass. 385, 396 (2010) (where standard to be met is reasonable suspicion rather than probable cause, less rigorous showing as to each of these tests is permissible).

After review, we are satisfied that, at the time that the officers stopped the Jeep, they had at least a reasonable suspicion that the defendant had in his possession an illegal firearm. The C.I. who spoke with Skwarto had been reliable in the past; what was lacking was his basis of knowledge for the information he gave to Skwarto. However, the motion judge found the specific detail and timely nature of the information, “essentially in real time,” particularly pertinent. The C.I. knew the color, make, and model of the vehicle in which the defendant would be traveling. He predicted precisely the route and the timing of the Jeep's pathway through Taunton. “The precision with which the informant predicted the time of the defendant's arrival [and] described his car ․ suggested some basis of knowledge. Any deficiency on that score was made up by the observations the police made. ․ The defendant showed up in the place, at roughly the time, and [traveling in] the precise vehicle, that the informant had foretold.” Commonwealth v. Lopez, 55 Mass. App. Ct. 741, 744-745 (2002). Further, the officers' history with the defendant also lent credence to the C.I.'s information. Skwarto had arrested the defendant “three or four times and had dealings with him probably over a dozen times” during his career. He had arrested the defendant approximately five years earlier for possession of ammunition and on outstanding warrants; there was a violent struggle at the time. On the day of the arrest at issue, Skwarto “was aware that [the defendant] had prior arrests for gun charges, stuff like that, assaults on police officers.”

From these findings, we are persuaded that the motion judge reasonably inferred that the C.I. based the information he gave Skwarto on direct knowledge gained through personal observations and contacts, and not by mere rumor. See Commonwealth v. Cast, 407 Mass 891, 897-898 (1990). Furthermore, the police investigation substantially corroborated the information. See Commonwealth v. Costa, 448 Mass. 510, 514-515 (2007). The motion judge was correct in finding the C.I.'s basis of knowledge sufficient.

The defendant's final argument on the motion to suppress is that the content of the C.I.'s message was insufficient to establish reason to believe that the defendant was committing a crime –- because possession of a firearm is not always a crime. Instead, he contends that the police had only a “hunch” that the defendant did not actually have a license to carry a firearm. We disagree.

The information that the defendant possessed a gun did not stand alone; as explained supra, it was accompanied by a lengthy history of physically resisting police officers -- including two of the officers involved in this arrest -- and a conviction of unlawful possession of ammunition. “We think this information more than sufficient to show that the defendant ․ was most probably not authorized to either carry or possess firearms within our Commonwealth.” Commonwealth v. Peterson, 61 Mass. App. Ct. 632, 636 (2004). In sum, we see no error in the motion judge's denial of the defendant's motion to suppress.

Sufficiency of the evidence. The defendant finally argues that the trial judge erred when he denied the defendant's motion for a required finding of not guilty because, he contends, the evidence was insufficient to establish that he constructively possessed the firearm.

In evaluating the sufficiency of the evidence, we determine whether, viewing it in the light most favorable to the Commonwealth, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). There must be evidence that the defendant had “knowledge coupled with the ability and intention to exercise dominion and control” over the firearm (citation omitted). Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). Presence in a vehicle containing a firearm is not enough to prove constructive possession, but presence together with “other incriminating evidence, will serve to tip the scale in favor of sufficiency” (quotation and citation omitted). Commonwealth v. Albano, 373 Mass. 132, 134 (1977). See Commonwealth v. Brzezinski 405 Mass. 401, 409-410 (1989) (circumstantial evidence and permissible inferences drawn therefrom can prove constructive possession).

We conclude, as did the trial judge, that the evidence here was sufficient as a matter of law to support the jury's verdict. That is, the jury reasonably could have inferred that the defendant had knowledge of the firearm and exercised sufficient dominion and control over it to possess it constructively. Two officers observed the defendant engaging in purposeful activity with his hands below their line of sight; the defendant initially disobeyed orders to show his hands; and officers recovered the firearm under the loose center console on the passenger side where the defendant had been sitting. Drawing all rational inferences in favor of the Commonwealth, the evidence amply supports the conclusion that the defendant hid the firearm before surrendering to the officers' patfrisk. Accordingly, as the trial judge found, the evidence at trial was sufficient as a matter of law to support the defendant's conviction of carrying a firearm without a license. See Commonwealth v. Gouse, 461 Mass. 787, 794-795 (2012).

Judgment affirmed.

FOOTNOTES

2.   We note that the motion judge explicitly credited the testimony of the five police officers who testified at the hearing.

3.   The Taunton Green is in the center of the city of Taunton, an area where several major roads converge; the area is populated with businesses and restaurants.

4.   On three prior occasions, the C.I. had provided Skwarto with information that proved to be reliable; specifically, the C.I. had provided information that had led to the arrest of three individuals who were wanted by the police. However, the prosecutor specifically declined to ask Skwarto about the C.I.'s basis of knowledge, and the defendant agreed not to pursue the issue.