Commonwealth v. Barros

Jacobs, J.

(concurring). I write to emphasize that the “unique and broadly recognized hazards to police officers and the public presented by guns in the streets,” Commonwealth v. Foster, 48 Mass. App. Ct. 671, 680 (2000) (Jacobs, J., concurring), call not only for considerable caution on the part of police but also for careful and thorough prosecution.

Here, the hearing evidence never alluded to the apparent age of the defendant. The complaint filed after his arrest states his date of birth as August 27, 1980, indicating that he was 17 years, 11 months old when Officer McDermott confronted him. At that time, G. L. c. 140, § 131, prohibited a person under 181 years’ of age from being issued a license to carry firearms. It, therefore, would have been proper at the hearing to inquire of *621Officer McDermott, or any other officer or witness at the scene, as to the appearance of the defendant in terms of age. A finding by the judge, based upon a response to that question, that the defendant reasonably appeared to be under the age of 18, would sustain an inference of illegally carrying a firearm. See G. L. c. 269, § 10; Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 70 n.10 (1997); Commonwealth v. Gunther G., 45 Mass. App. Ct. 116, 119 (1998). Given that there are few more dangerous street scenarios than that of an adolescent with a gun, that inference would be sufficient to support a reasonably based stop and frisk.

The age of eligibility was raised to 21 years of age by St. 1998, c. 180, § 41, approved on July 23, 1998.