To slow MPD :FM: :wink: :t:
COMMONWEALTH vs. JOHN R. HASKELL, JR.
SUPREME JUDICIAL COURT OF MASSACHUSETTS
438 Mass. 790; 784 N.E.2d 625; 2003 Mass. LEXIS 180
November 7, 2002, Argued November 7, 2002
March 10, 2003, Decided
SUBSEQUENT HISTORY: [***1] As Modified May 15, 2003.
PRIOR HISTORY: Berkshire. Complaint received and sworn to in the Pittsfield
Division of the District Court Department on October 7, 1994. A motion to
reconsider an order denying a motion to suppress evidence, filed on May 30,
2000, was heard by Alfred A. Barbalunga, J. An application for leave to
prosecute an interlocutory appeal was allowed by Greaney, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court on its own initiative transferred
the matter from the Appeals Court.
DISPOSITION: On direct review, trial court's judgment was affirmed, in part,
reversed, in part, and case was remanded.
HEADNOTES: Practice, Criminal, Motion for reconsideration. Jurisdiction,
Reconsideration of order or judgment.Constitutional Law, Investigatory
stop,Reasonable suspicion, Admissions and confessions, Self-incrimination.
Complaint received and sworn to in the Pittsfield Division of the District Court
Department on October 7, 1994.
A motion to reconsider an order denying a motion to suppress evidence, filed on
May 30, 2000, was heard by Alfred A. Barbalunga, J.
An application for leave to prosecute an interlocutory appeal was allowed by
Greaney, J., in the Supreme Judicial Court for the county of Suffolk, and the
appeal was reported by him to the Appeals Court. The Supreme Judicial Court on
its own initiative transferred the matter from the Appeals Court.
COUNSEL: Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.
Robert J. Carnes for the defendant.
JUDGES: Present: Marshall, C.J., Greaney, Cowin, Sosman, Cordy, JJ.
[**627] [*791] COWIN, J. In 1994, the defendant was charged with
possessing a firearm without a license in violation of G. L. c. 269, § 10(a).
Later that same year, the defendant, alleging State and Federal constitutional
violations, moved to suppress evidence and statements made to the police. A
District Court judge denied the motion after a hearing. The defendant
subsequently failed to appear for his trial, and his [***2] whereabouts
remained unknown until May, 2000, when he removed his default and requested
reconsideration of the denial of his 1994 suppression motion. The motion judge,
without hearing further evidence, reversed his initial position and allowed the
motion. The Commonwealth sought and was granted leave by a single justice of
this court for an interlocutory appeal to the Appeals Court, and we transferred
the case here on our own motion. We affirm the order of suppression with regard
to the defendant's statement that he did not have a firearms license and
otherwise reverse the order.
We recount the facts as originally found by the motion judge. Shortly before
2 A.M. on October 7, 1994, a bartender in a Pittsfield bar saw, through the bar
's window, a man sitting in an automobile loading a handgun. The bar was located
in an area of Pittsfield with a high level of criminal activity. The man drove
away, and the bartender locked the bar's door to protect his patrons, dialed
911, and reported his observations and the direction in which the car was
traveling. Less than one minute later, Officer Jeremy Barber of the Pittsfield
police department, alerted by a radio call describing the [***3] automobile and
the bartender's observations, spotted a matching vehicle driving in the
indicated direction approximately 500 yards from the bar. Barber stopped the
vehicle and got out of his cruiser. As he did, he saw the vehicle's lone
occupant (later identified as the defendant) reach down toward the floor of the
car. Barber [*792] ordered the defendant to put both his hands out the window,
and the defendant complied. A second officer, Richard Saldo, then arrived (the
total number of officers present would eventually rise to six) and approached
the car from the front while Barber approached from behind. Barber drew his
service weapon; Saldo put his hand on his weapon, but did not draw it. Saldo
asked the defendant if he had a gun, and the defendant said that he did. Saldo
then asked where the gun was, and the defendant told him that it was under the
seat. The police next ordered the defendant out of the car and pat frisked him,
finding no weapons. While this was occurring Officer Barber saw "a pile of .45
caliber bullets on the front seat" and, after a search of the passenger
compartment, retrieved a loaded .45 caliber revolver, a holster, and a large
sheath knife from beneath the driver's [***4] seat. At this point, Lieutenant
David Reilly (who had recently arrived) asked the defendant whether he had a
permit to possess the revolver, and the defendant responded that he did not. The
defendant was then arrested.
As a preliminary matter, the Commonwealth argues that the motion judge's
allowance [*793] of the defendant's motion to reconsider was an abuse of his
discretion. It was not. A judge may permit a motion that has been heard and
denied to be renewed when "substantial justice requires." Mass. R. Crim. P. 13
(a) (5), 378 Mass. 871 (1979). Although renewal "is appropriate where new or
additional grounds are alleged which could not reasonably [**628] have been
known when the motion was originally filed," Reporters' Notes to Mass. R. Crim.
P. 13, Mass. Ann. Laws, Criminal Procedure 132 (Lexis 1997), the remedy is not
restricted to those circumstances. A judge's power to reconsider his own
decisions during the pendency of a case is firmly rooted in the common law, and
the adoption of rule 13 was not intended to disturb this authority. See
Commonwealth v. Cronk, 396 Mass. 194, 196-197, 484 N.E.2d 1330 (1985); [***5]
Commonwealth v. Downs, 31 Mass. App. Ct. 467, 469, 579 N.E.2d 679 (1991) (
"Judges are not condemned to abstain from entertaining second thoughts that may
be better ones"). But see Commonwealth v. Balboni, 419 Mass. 42, 43-44, 642
N.E.2d 576 (1994) (postdisposition motion to reconsider must be filed within
time allowed for appeal). Although the five-year gap between the judge's initial
ruling and his allowance of the defendant's motion for reconsideration was
entirely due to the defendant's protracted default, it was within the judge's
discretion to reconsider his ruling despite the passage of time.
We next address the substance of the judge's order. In the absence of a
written decision explaining his reasons for allowing the defendant's motion on
reconsideration, we are unable to determine the basis for his suppression order.
The defendant argues before us that the physical evidence (the revolver,
holster, ammunition, and knife), as well as the statements made to Officer Saldo
before the defendant was ordered out of his vehicle, were the fruit of an
illegal stop. He further argues that his statement that he did not have a
license to possess the revolver found in his car, made to Lieutenant Reilly
after the defendant had been ordered from [***6] his car, was obtained in
violation of the requirements set forth in Miranda v. Arizona, 384 U.S. 436,
479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We address these claims as framed
by the defendant, applying State and Federal constitutional principles to the
facts found by the judge. See Commonwealth v. Haas, 373 Mass. 545, 550, 369
N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986).
The police did not overstep any constitutional limits when Barber stopped the
defendant's vehicle. An investigatory stop of a motor vehicle is justified when
the police have "a reasonable suspicion, based on specific, articulable facts
and reasonable inferences therefrom," that a vehicle occupant "had committed,
was committing, or was about to commit a crime." Commonwealth v. Alvarado, 427
Mass. 277, 280-281, 693 N.E.2d 131 (1998), quoting Commonwealth v. Alvarado, 423
Mass. 266, 268-269, 667 N.E.2d 856 (1996). See Terry v. Ohio, 392 U.S. 1, 20 L.
Ed. 2d 889, 88 S. Ct. 1868 (1968). Because it is legal in Massachusetts to carry
a handgun if properly licensed, a report that an individual possesses a handgun,
[***7] without any additional information suggesting criminal activity, does
not create a reasonable suspicion that a crime is or will be committed. See
Commonwealth v. Couture, 407 Mass. 178, 183, 552 N.E.2d 538, cert. denied, 498
U.S. 951, 112 L. Ed. 2d 334, 111 S. Ct. 372 (1990). Here, however, the police
received a report that the defendant had been seen loading a handgun shortly
before 2 A.M. in a high-crime area. The report was based on the personal
observations of an identified citizen. See Commonwealth v. Alvarado, supra at
283. While a licensed gun [*794] owner might well choose to carry a handgun for
protection when venturing into a high-crime area in the early hours of the
morning, the act of publicly loading a handgun is an event that creates a
reasonable suspicion that a crime may be about to take place. "It would have
been poor police work indeed" if Officer Barber had "failed to investigate this
behavior further." [**629] Terry v. Ohio, supra at 23. The stop of the
defendant's vehicle was therefore constitutionally justified. See Commonwealth
v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990); [***8] Commonwealth v.
Wren, 391 Mass. 705, 707-708, 463 N.E.2d 344 (1984); Commonwealth v. Matthews,
355 Mass. 378, 381, 244 N.E.2d 908 (1969).
The defendant further argues that the precautions taken by the investigating
officers converted the investigatory stop into a formal arrest for which the
police lacked the necessary probable cause. We disagree. The Constitution does
not require officers "to gamble with their personal safety," Commonwealth v.
Robbins, 407 Mass. 147, 152, 552 N.E.2d 77 (1990), and police officers
conducting a threshold inquiry may take reasonable precautions, including
drawing their weapons, when the circumstances give rise to legitimate safety
concerns. See id. at 151-152. The precautions taken by Officers Barber and Saldo
were, at each stage of the investigatory stop, proportional to the safety risks
that they faced, and therefore did not transform the stop into an arrest. See
Commonwealth v. Moses, surpa, 408 Mass. at 141, quoting Commonwealth v. Borges,
395 Mass. 788, 794, 482 N.E.2d 314 (1985) ("The degree of intrusiveness that is
permitted is that which is 'proportional to the [***9] degree of suspicion that
prompted the intrusion'"). In this case, the stop took place in the early
morning hours after the police had received reliable information that the
defendant was both armed and (in loading a weapon in public) behaving in a
suspicious manner. In addition, Officer Barber had observed the defendant reach
down with his right hand, as if reaching for an object. Any police officer in
Barber's position would be justifiably concerned for his safety, and approaching
with a drawn weapon was an appropriate precautionary response. See Commonwealth
v. Willis, 415 Mass. 814, 821, 616 N.E.2d 62 (1993). The order to the defendant
to get out of the vehicle and the protective search of the interior that
produced the handgun were likewise justified. See [*795] Commonwealth v.
Stampley, 437 Mass. 323, 325-326, 771 N.E.2d 784 (2002); Commonwealth v.
Gonsalves, 429 Mass. 658, 664, 711 N.E.2d 108 (1999), S.C., 432 Mass. 613, 739
N.E.2d 1100 (2000); Commonwealth v. Moses, supra at 144.
We next address the Miranda issue. The defendant contends that, when the
police asked whether he had a license for his handgun without [***10] first
advising him of his Miranda rights, they conducted a custodial interrogation in
violation of the Fifth Amendment to the United States Constitution. See
Dickerson v. United States, 530 U.S. 428, 444, 147 L. Ed. 2d 405, 120 S. Ct.
2326 (2000); Miranda v. Arizona, supra. Miranda warnings are required whenever
police interrogation occurs in a "custodial" setting. Id. at 444. A suspect is
in custody when his freedom "is curtailed to a 'degree associated with formal
arrest.'" Commonwealth v. Morse, 427 Mass. 117, 123, 691 N.E.2d 566 (1998),
quoting Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 104 S. Ct.
The Commonwealth does not contest the defendant's contention that he was
subjected to a custodial interrogation when Lieutenant Reilly asked whether the
defendant had a license to carry firearms. We therefore assume, for the purposes
of this decision, that a custodial interrogation occurred. n1 The Commonwealth
instead argues [**630] that G. L. c. 140, § 129C, creates an exception to the
Miranda rule and would permit the specific question posed to the [***11]
defendant. It does not. General Laws c. 140, § 129C, requires, in pertinent
part, that a person found with a firearm outside the limits of his own property
or residence, "shall on demand of a police officer . . . exhibit his license to
carry firearms, or his firearm identification card or receipt for fee paid for
such card, or . . . a valid hunting license." The statute makes no mention of
the Miranda warnings, and, even if it did, the warnings may not be waived by
statute. See Dickerson v. United States, supra at 444 ("Miranda [*796]
announced a constitutional rule that Congress may not supersede legislatively").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The fact that the stop, and the safety precautions taken to effect it,
fell within the permissible limits of a Terry stop is not dispositive of whether
the questioning was "custodial" for Miranda purposes. See Terry v. Ohio, 392
U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Justifiable safety precautions,
such as handcuffing a suspect and approaching with drawn weapons, may create a
level of coercion equivalent to formal custody without transforming the Terry
stop itself into an arrest. See Commonwealth v. Gordon, 47 Mass. App. Ct. 825,
827, 716 N.E.2d 1036 (1999). Thus, our conclusion that the restraints imposed on
the defendant were permissible as part of a Terry stop does not contradict our
assumption that Lieutenant Reilly's question to the defendant constituted
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***12]
This is not to say that the police must administer Miranda warnings before
demanding, pursuant to § 129C, that a suspect in custody produce a license to
carry firearms. The Miranda warnings are designed to protect the integrity of a
suspect's privilege against self-incrimination. See Dickerson v. United States,
supra at 435; Miranda v. Arizona, supra at 439. Although this privilege protects
a suspect's testimonial communications, n2 it does not permit a suspect to
refuse to produce real or physical evidence (such as a license) when lawfully
ordered to do so. See Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d
908, 86 S. Ct. 1826 (1966) (no right to refuse to produce physical evidence
under Fifth Amendment to United States Constitution). See also Commonwealth v.
Burgess, 426 Mass. 206, 218, 688 N.E.2d 439 (1997) (no right to refuse to
produce physical evidence under art. 12 of Massachusetts Declaration of Rights).
It would serve no purpose to advise a suspect that he has a right to remain
silent when the police are only demanding the production of physical evidence
that the suspect may not withhold. [***13] The police, therefore, need not
administer Miranda warnings before demanding that a suspect in custody produce
one of the documents listed in § 129C.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 A testimonial communication is one that, by itself, "explicitly or
implicitly, relates a factual assertion or discloses information." Doe v. United
States, 487 U.S. 201, 210, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988). While a
demand for the production of a license does compel the disclosure of the
information contained on that license, "a person may not claim the [Fifth]
Amendment's protections based upon the incrimination that may result from the
contents or nature of the thing demanded." Baltimore City Dep't of Social Servs.
v. Bouknight, 493 U.S. 549, 555, 107 L. Ed. 2d 992, 110 S. Ct. 900 (1990).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The problem in this case, however, is one of form. Lieutenant Reilly did not
order the defendant to produce or exhibit a license to possess the revolver
found in his car; he asked the defendant whether he had such a license. [***14]
As subtle as this distinction may seem, Lieutenant Reilly's question was an
invitation to "relate a factual assertion or disclose information," Doe v.
United States, 487 U.S. 201, 210, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988),
specifically, an admission that the defendant was in violation of G. L. c. 140,
§ 129C. It was therefore a request for a [**631] testimonial communication that
entitled the defendant to the Fifth Amendment's protections, including [*797]
the right to refuse to answer. Id. at 210-211. Given our assumption that the
defendant was in custody for Miranda purposes when Lieutenant Reilly questioned
him, and the fact that the defendant was not given the required warnings, the
defendant's answer must therefore be suppressed. Miranda v. Arizona, supra at
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Although the Commonwealth did not argue the point before us, we recognize
that, in some situations that might be considered custodial for Miranda
purposes, a demand that a suspect produce his firearms license would invite a
suspect to reach into his pocket or glove compartment in the midst of a tense
encounter. Such an act might well prove dangerous both to the police (if the
suspect were carrying an as yet undiscovered weapon) and the suspect (if the
police believed that the suspect was reaching for a weapon). Our holding today
should not be read to require the police to administer Miranda warnings before
asking preliminary questions reasonably designed to ensure the safe production
of a suspect's license pursuant to G. L. c. 140, § 129C. See New York v.
Quarles, 467 U.S. 649, 654-658, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984);
Commonwealth v. Clark, 432 Mass. 1, 13-14, 730 N.E.2d 872 (2000).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***15]
The order of suppression is affirmed with regard to the defendant's statement
regarding his lack of a firearms license and reversed as to all other matters.
The case is remanded to the District Court for further proceedings consistent
with this opinion.