Commonwealth v. Foster

Jacobs, J.

(concurring). At present, the governing case law in *680this State does not permit a search or patfiisk of a person reliably reported to be armed merely because there is a possibility he may be in possession of an unlicensed gun. Commonwealth v. Couture, 407 Mass. 178, cert. denied, 498 U.S. 951 (1990). Commonwealth v. Alvarado, 423 Mass. 266 (1996) (Alvarado I). As the majority opinion points out, an additional factor is required in the form of a reasonable suspicion based on specific, articulable facts of past, present or impending criminal behavior by that person, Commonwealth v. Silva, 366 Mass. 402, 405 (1974), or a reasonable belief that there is an “imminent threat to public safety,” Alvarado I, supra at 271; Commonwealth v. Alvarado, 427 Mass. 277, 283 (1998) (Alvarado II), or a showing (in the absence of a forcible stop) that the investigating officer reasonably believed that person to be “armed and dangerous.” Commonwealth v. Fraser, 410 Mass. 541, 544-545 n.4 (1991). Notwithstanding the arresting officer’s uncontradicted testimony at the motion hearing that neither of the two men who were questioned on Washington Street exhibited any suspicious behavior, the majority discerns the requisite additional factor from the totality of circumstances, correctly concluding the two men were “dangerous” and posed a threat to the public.

I write to indicate that my concurrence relies not only on the stated facts but largely also on the unique and broadly recognized hazards to police officers and the public presented by guns in the streets. See United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994), cert. denied, 517 U.S. 1250 (1996); United States v. DeBerry, 76 F.3d 884, 886 (7th Cir. 1996); Commonwealth v. Johnson, 36 Mass. App. Ct. 336, 337 (1994) (“Particularly in a modem urban setting, ... the carrying of guns in public is, if not by itself indicative of crime . . . , at least a matter of serious public-safety concern to the police . . .”); Commonwealth v. Berment, 39 Mass. App. Ct. 522, 529-530 (1995) (Kass, J., dissenting). The inherent dangerousness of guns in the streets is not diminished by the fact that licensed carrying of a gun is lawful. It was this inherent dangerousness together with the circumstances described in the majority opinion that gave rise to an imminent threat that shots soon might be fired by the man who had displayed the gun. When the officers, then under a duty to investigate, see Commonwealth v. Fraser, supra, reasonably and quickly came upon the defendant, they had little choice but to pat frisk him while determining whether he presented a risk to public safety. *681“Where the officer is justified in making inquiry, the law is clear that he may take prudent precautions for his own safety or that of others.” Commonwealth v. Johnson, supra at 338, citing Terry v. Ohio, 392 U.S. 1, 27 (1968).