The Massachusetts Appeals Court today upheld the seizure of a gun in Holyoke that led to the defendant’s conviction for unlawful possession of a defaced firearm. The name of the case is Commonwealth v. Colon.
The defendant was charged with unlawfully possessing a defaced firearm and ammunition following his arrest in September of 2011. He filed a motion to suppress the gun and a superior court judge denied the motion. After he was convicted, the defendant appealed the superior court judge’s denial of his motion to suppress.
At the motion to suppress hearing a Holyoke police detective testified that he had received a call from a convenience store owner that five Hispanic males, including the defendant, were loitering in front of his store. The store was located in a high-crime area of the city. The detective and other officers, all wearing plain clothes, responded and found the five men. The detective recognized one of the men (not the defendant) as having previously been arrested for drug offenses and home invasion. After telling the men to leave, the detective noticed the defendant stare at him nervously before quickly walking away. The defendant repeatedly looked back at the detective and adjusted a bulge that was located under his shirt near his right hip. The detective, who was assigned to the narcotics and vice unit and had extensive experience in arresting people for gun-related offenses, believed the bulge was a firearm. He ordered the defendant to stop and the defendant began to run. While fleeing, the defendant pulled a .380 caliber semi-automatic handgun from his pants and attempted to throw it away. The detective seized the gun and other officers apprehended and arrested the defendant.
The issue at the motion to suppress hearing and on appeal was whether the detective had a reasonable suspicion, based on specific and articulable facts, that the defendant was violating the law. If so, the detective was justified in ordering the defendant to stop. If not, the stop was unconstitutional and the gun would be suppressed.
The Appeals Court concluded that the detective had reasonable suspicion, based on all of the surrounding circumstances of the stop, to conclude that the defendant was carrying a gun. The Court said that all of the factors need to be considered collectively. In this case, the officer had considerable experience dealing with firearms offenses. He was familiar with the area of the city and knew its history of being associated with crime. The defendant’s demeanor suggested he was hiding something, and he repeatedly touched the area of his pants that apparently contained an object. These facts, taken together, allowed the detective to reasonably suspect that the defendant possessed a gun and permitted the detective to order the defendant to stop. Accordingly, the motion to suppress was properly denied and the defendant’s convictions were affirmed.
Although the defendant did not prevail here, this case illustrates the importance of aggressively litigating motions to suppress evidence. Trial and appellate courts carefully review the specific facts of each case to determine whether police conduct was justified, and most cases (like this case) could go either way. If you have been charged with a gun offense, you should immediately consult a criminal defense attorney to explore your options.