Commonwealth v. DePeiza

Rapoza, J.

(dissenting). I respectfully dissent. Although the circumstances before us present a close case, our analysis must “take into account ‘the totality of the circumstances — the whole picture.’ Thus, a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief.” Commonwealth v. Fraser, 410 Mass. 541, 545 (1991), quoting from United States v. Cortez, 449 U.S. 411, 417 (1981).

The majority is correct to suggest that the factors present here, taken individually, were insufficient to support a reasonable suspicion on the part of the officers that the defendant was engaged in criminal activity. Nonetheless, I conclude that when the relevant factors are considered together and not in isolation, the facts and reasonable inferences drawn therefrom provided an objective factual basis for the police officers to suspect that the defendant illegally possessed a firearm and to justify a threshold inquiry and patfrisk. See Commonwealth v. Watson, 430 Mass. 725, 729 (2000) (“Seemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry”). See also Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 44 (2002).

As noted by the majority, the area where the events occurred *410is “a ‘high crime’ area where, on past occasions, shots had been fired and arrests had been made involving illegal handguns.” Ante at 399. Shortly after midnight, the officers observed the defendant walking on the sidewalk with his right arm “rigid, not moving, and pressed to his side as if he were holding something.” Ibid. As he continued to walk he favored his right side.

Based on both their training and experience, the two officers were familiar with ways that illegal firearms may be concealed and transported. “One such method — the straight arm method — employs a straightened arm pressed against the concealed weapon. Ten to fifteen percent of their twenty-five gun arrests in the previous eight months involved an initial observation of this method of carrying the firearm.” Ibid. The manner in which the defendant conducted himself was consistent with the description of the “straight arm” method of firearm concealment.

Additionally, once engaged in conversation with the officers, the defendant “was attempting to shield his right side from their view ‘as if trying to hide something.’ He avoided eye contact, looked left and right, and shifted his weight from side to side.” Ante at 400. As he reached for his identification “he continued to turn his right side from their view.” Ibid.

Prior to the frisk, the officers observed “that the right pocket of [the defendant’s] jacket was tilted to the side, as if it held a heavy object — heavier than a cellular telephone, wallet, or pack of cigarettes.” Ibid. It was at this point that Officer Bickerton concluded that the defendant had a firearm in his jacket, and he told the defendant that he was going to patfnsk him. As the majority states, the defendant attempted to move away, and the officer grabbed his right jacket pocket, felt the handle of a handgun, and seized the weapon.

Unlike the majority, in these circumstances I conclude that prior to the announcement of the frisk, the officers had reason to suspect that the defendant illegally possessed a firearm. Although a number of the officers’ observations could, considered individually, admit of an entirely innocent explanation, in combination they were sufficient to justify a reasonable suspicion on the part of the officers. See Commonwealth v. San*411taliz, 413 Mass. 238, 241-242 (1992) (individual factors considered in combination sufficient to support belief that criminal activity is occurring); Commonwealth v. Roble, 51 Mass. App. Ct. 494, 497-498 (2001) (suggestive factors taken in aggregate supported reasonable suspicion). The majority posits a number of other factors, absent here, that would support a determination of reasonable suspicion. Such indicia are of no moment so long as the facts actually present in the case at bar are sufficient to support a reasonable suspicion of criminal activity.

The majority suggests that the defendant’s manner of walking, “like his hairstyle or clothing, is by itself too idiosyncratic to serve as the basis for a reasonable suspicion of criminal activity.” Ante at 404. To the contrary, it was not the defendant’s individualized gait that attracted the officers, but the fact that he walked with a rigid right arm pressed to his side as if he was hiding something. Moreover, they had observed the very same conduct in ten to fifteen percent of their twenty-five gun arrests in the previous eight months. What was significant to the officers was not the observation of “idiosyncratic” behavior, but conduct that was entirely consistent with the actions of persons known to conceal illegal firearms. In the circumstances, I cannot agree with the majority’s conclusion that the officers were merely “pursuing a hunch that the defendant’s walk suggested he was carrying a firearm.” Ante at 407.

The majority asserts that there may have been a number of entirely innocent reasons why the defendant appeared nervous, failed to make eye contact with the officers, and shifted from side to side. Considering that the defendant appeared to be walking in such a manner as to conceal something, his other gestures, which in a different setting might appear unremarkable, took on a different cast supporting the eventual conclusion of the officers that they had reason to believe the defendant was engaged in criminal activity.

Further, it must be emphasized that Officer Bickerton did not conduct a patfrisk until after the officers made the additional observation that the defendant’s jacket was tilted to one side, apparently holding a weighty object. In the circumstances, the officers believed that the pocket contained a firearm and it was *412only then that the frisk occurred. Even if the officers did not already have a reasonable basis for suspicion, the indication of a heavy object in the defendant’s pocket on the side that he had consistently shielded from the officers’ gaze “tipped the scales in favor of reasonable belief when aggregated with the other nondispositive but relevant factors discussed above.’’ Commonwealth v. Fisher, 54 Mass. App. Ct. at 47.

Finally, considering all the factors known to the officers, especially the defendant’s attempt to conceal the weapon and his other evasive actions, the circumstances were sufficient to support a reasonable suspicion not only that the defendant was in possession of a firearm, but also that he possessed it illegally. This is not a case in which the carrying of a firearm, standing alone, constituted the basis for suspicion of criminal activity. See Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498 U.S. 951 (1990) (mere possession of firearm is insufficient to support reasonable suspicion that it is carried illegally).

In addition, it was reasonable for the officers to believe not only that the defendant was armed, but also that he might present a danger to them, if not to others. See Terry v. Ohio, 392 U.S. 1, 27 (1968). This was especially true considering the fact that he was attempting to conceal the weapon from the officers at the time of their encounter, which was shortly after midnight in a high crime area where shots had been fired in the past and arrests had been made involving illegal handguns. In the circumstances, a reasonably prudent officer would have reason to be concerned for his safety.

“While the officer need not be absolutely certain that the individual is armed, the basis for his acts must he in a reasonable belief that his safety or that of others is at stake.” Commonwealth v. Silva, 366 Mass. 402, 406 (1974). Such was the case here. Once the officers noted what appeared to be a heavy object in the defendant’s pocket, Officer Bickerton told him that he was going to conduct a patfrisk for reasons of safety. See Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (patfrisk justified as protective measure when officer observed bulge in suspect’s clothing). “[W]hen all the facts are taken together, [the officers] had sufficient information to justify the protective *413frisk of the defendant,” which produced the illegal handgun. Commonwealth v. Fraser, 410 Mass. at 546.

For all these reasons, I conclude that the judge did not err in denying the defendant’s motion to suppress the loaded handgun seized by the officers, and I would affirm the judgments of conviction.