COMMONWEALTH v. Timmy HEM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in District Court, the defendant was found guilty of carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a); carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n); and possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h) (1).2 The charges arose after the defendant was stopped on the street, and pat frisked, resulting in the seizure of a firearm. The defendant appeals, arguing that his motion to suppress the firearm should have been allowed. The defendant also claims that because he was found guilty of carrying a loaded firearm without a license, his conviction of possession of ammunition was duplicative. We conclude that the motion to suppress was properly denied and affirm the defendant's convictions under § 10 (a) and § 10 (n), but we set aside the defendant's conviction for possession of ammunition under § 10 (h) (1).
Background. The motion judge found the following facts, adopting the testimony of Revere Police Officer Trifkovic, whom the judge found to be credible. In the early morning of September 16, 2018, Revere police officers responded to a report of an altercation at the Las Vegas restaurant. The responding officers were informed that the defendant had “brandished” or displayed a firearm during the altercation. Shortly thereafter, on September 18, 2018, the Revere Police Department issued an Officer Safety Bulletin (bulletin), which stated in part:
“Officers were dispatched to Las Vegas Restaurant ․ for reports of a fight. [The defendant] ․ was seen with what looked to be the handle of a firearm in his waistband.”
The bulletin was accompanied by a screenshot taken from surveillance footage at the restaurant, depicting a man, purportedly the defendant, lifting his clothing to reveal a black object concealed at his waist.
Officer Trifkovic was made aware of the bulletin shortly after the incident. The defendant was well known to Officer Trifkovic. Trifkovic described his relationship with the defendant as “friendly․ We always kept a good relationship․ He was always approachable [and willing to talk to me].” Officer Trifkovic was also aware that the defendant was a “self admitted [member of] a street gang that's called bloods,” and that the defendant had previously had interactions with the Revere Police Department, as well as a criminal record reflecting “assault and batteries, possession of ammunition.”
Approximately two weeks after the Las Vegas restaurant incident, on October 1, 2018, Officer Trifkovic was on patrol when he spotted the defendant and several other individuals walking by at around 10:30 a.m. Trifkovic tried to get the defendant's attention as he drove by, but the defendant “was very evasive․ [He] didn't acknowledge me in any way. He was looking away.” Trifkovic pulled over a short distance away to confer with another officer, who was on a traffic detail.
The officers approached the defendant and the group as they walked by. Officer Trifkovic asked the defendant “if he had a minute” in a “[v]ery conversational tone.” The defendant “turned around and he, in a nervous tone, troubled voice, he said, yeah, what's up.” Officer Trifkovic testified that the defendant's demeanor seemed unusual to him, as the defendant was normally “very laid back, relaxed.” The officer “asked him -- well, I told him I -- that I heard he had some issues in the neighborhood involving a firearm.” The defendant's “nervous behavior [then] became a little more noticeable” and “he took a step back ․ blading towards the side ․ [and] reached towards his waistband.” The officer testified that the defendant was “constantly pull[ing] up his pants because they were falling down as if they were being weighted down.” The officer explained that in his experience and training, both the “blading” movement and the pulling up or adjusting of the pants -- what he termed an “assurance check” -- are behaviors commonly observed of individuals carrying a firearm in their waistband.
Officer Trifkovic “immediately ordered [the defendant] to relax and put his hands above his head and not to reach for his waistband.” The officer testified that he feared for his safety in light of the bulletin, the defendant's history, and the defendant's observed behaviors, which together indicated that the defendant might be in possession of a firearm. The officer performed a patfrisk and recovered the firearm from the defendant's pants. The firearm “resembled pretty much exactly [the alleged firearm] in the officer safety bulletin.”
The defendant moved to suppress the firearm, and the ammunition within, on the basis that the officer lacked sufficient cause to search the defendant. After an evidentiary hearing, the motion was denied.
The defendant was subsequently convicted in a jury-waived trial.
Discussion. 1. Motion to suppress. On appeal, the defendant argues that the search of his person violated his Federal and State constitutional rights. He contends that the officers’ approach, and Officer Trifkovic's question regarding a firearm, constituted an investigatory stop supported only by stale information -- the bulletin, which was fifteen days old at the time of the stop. The Commonwealth responds that the officer's initial questioning did not constitute a stop, and that the defendant was only seized after the officer had observed additional actions giving rise to reasonable suspicion that the defendant was in possession of a firearm.
On review of a motion to suppress, we accept the judge's findings of fact absent clear error, but “[w]e make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). Officer Trifkovic's testimony is unchallenged, and thus the primary issues before us are (1) when the stop occurred, and (2) whether the stop was properly supported, at the time it occurred, by reasonable suspicion. See Commonwealth v. Grandison, 433 Mass. 135, 139-140 (2001).
Turning first to the issue of when the stop occurred, the question is when did the officer exercise coercive power such that “a reasonable person would have believed that he was not free to leave” (quotation and citation omitted). Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001). See Commonwealth v. Harris, 93 Mass. App. Ct. 56, 60-61 (2018) (“In applying the ‘free to leave’ standard, courts evaluate whether the police have applied coercive power”). It is well settled that an officer “may make inquiry of anyone they wish ․ so long as they do not implicitly or explicitly assert that the person inquired of is not free to ignore their inquiries.” Barros, supra at 174, quoting Commonwealth v. Murdough, 428 Mass. 760, 763 (1999).
We conclude that the defendant was not stopped until Officer Trifkovic ordered the defendant to put his hands in the air. Prior to that time, the officer and the defendant had merely engaged in ordinary conversation. The officer used a conversational tone, as he had when he and the defendant had spoken in the past. The officer was free to ask questions of the defendant, and the circumstances did not suggest that the defendant was compelled to answer the officer's inquiries. It was only after the defendant behaved suspiciously in response to these questions that Trifkovic directed the defendant to put his hands in the air, thereby stopping the defendant for constitutional purposes. See Commonwealth v. DePeiza, 449 Mass. 367, 370 (2007).
We turn next to whether, at the time the defendant was asked to put his hands in the air, Officer Trifkovic had reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime. Commonwealth v. Wilson, 441 Mass. 390, 394 (2004). A patfrisk for weapons is permissible when officers have a reasonable belief that the subject of the search is armed and dangerous. Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020).
As the motion judge stated, at the time that Officer Trifkovic ordered the defendant to put his hands in the air, the officer knew the following:
a. He knew the defendant, from many prior interactions. He also knew the defendant's history of gang involvement, and his prior violent crimes and possession of ammunition;
b. The substance of the bulletin, e.g., that the defendant had reportedly displayed a firearm during an altercation at a restaurant fifteen days prior;
c. The defendant behaved atypically when the officer approached on this occasion; the defendant was nervous and was reticent to stop and speak with the officers;
d. After the officer mentioned a “firearm” issue, the defendant “blad[ed]” away from the officer and also performed “assurance checks,” both common behaviors of individuals with a firearm concealed at their waistband.
In light of the totality of the above circumstances, Officer Trifkovic had sufficient cause to believe that the defendant, at the time of the stop, might be carrying a concealed firearm. Indeed, many of the above circumstances have previously been identified in our case law, as part of the basis for a finding of reasonable suspicion.3 See, e.g., Commonwealth v. Resende, 474 Mass. 455, 461 (2016) (observed “blading” movement and “motions ․ consistent with weapon retention checks” supported reasonable suspicion that defendant was armed); DePeiza, 449 Mass. at 372-374 (behavior suggesting attempt to “conceal” firearm from officers in high crime area supported reasonable suspicion that defendant was carrying illegal firearm); Commonwealth v. Wren, 391 Mass. 705, 708 n.2 (1984) (“attempt to avoid contact with or observation by police ․ may be considered along with other facts”); Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841-842 (2010) (gang membership and prior arrests factor into reasonable suspicion that officer safety is at risk). The motion to suppress was properly denied.
2. Duplicative convictions. The defendant also argues that his conviction of possession of ammunition under § 10 (h) was duplicative of his conviction of possession of a loaded firearm under § 10 (n). The Commonwealth concedes that the convictions are duplicative, where, as here, the only ammunition in evidence was that contained in the firearm itself. See Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011).
The Commonwealth, while conceding the above, argues that we should not reach the issue because the duplicative conviction was placed on file, and thus no final judgment was issued. “Ordinarily, we do not consider appeals from indictments placed on file ․ but in the interest of efficiency and in a suitable case we may choose to do so.” Commonwealth v. Chappee, 397 Mass. 508, 523 (1986). Where a defendant has been convicted of a substantive offense and a lesser included offense, and therefore cannot be sentenced on the lesser included offense, we exercise our discretion to consider the appeal. See id.
Conclusion. On the charge of possession of ammunition without a firearm identification card, the finding of guilty is set aside, and that count of the complaint is to be dismissed. The judgments on the charges of carrying a firearm without a license and carrying a loaded firearm without a license are affirmed.
Affirmed in part; dismissed in part and set aside.
2. The defendant's motion for a required finding of not guilty was allowed as to the charge of receiving stolen property, subsequent offense, in violation of G. L. c. 266, § 60.
3. Our decision does not rest solely or even substantially on the bulletin. We merely consider it as another relevant factor among the factors known to the officer, that reasonably indicated that the defendant may have been armed at the time, and posed a threat to officer safety. See Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005).
Was this helpful?