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1 3

- P

- 774 Appeals Court

COMMON WEALTH vs . GABRIEL COLON.

No. 13

- P

- 774.

Hampden. December 9, 2014.

- May 22 , 2015.

Present: Cypher, Wolohojian, & Blake, JJ.

Firearms

. Practice, Criminal , Motion to suppress. Search and Seizure , Reasonable suspicion. Constitutional Law , Search and seizure, Reasonable suspicion.

I ndictments found and returned in the Superior Court Department on October 18, 2011.

A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder , J., and t he case s w ere heard by Cornelius J. Moriarty, II , J.

Elaine Fronhofer for the defendant

. Bethany C. Ly nch , Assistant District Attorney, for the Commonwealth.

CYPHER, J. The defendant, Gabriel Colon, was convicted

after a jury

- waived trial of unlawful possession of a firearm,

possession of a defaced firearm, and unlawful possession of2

ammunition. 1 On appeal from the ensuing judgments, he argues

error in an order denying his motion to suppress evidence , contending that the judge erred when he found that the defendant

was lawfully seized

. Only one witness testified at the hearing

on the motion to suppress, Detective William Delgado. The

salient facts are not in dispute. 2 We accept the motion judge ' s
findings of fact unless they are clearly erroneous , but we

undertake an independent review of the application of the

constitutional princip les

. Commonwealth v. Hoose , 467 Mass.

395, 399

- 400 (2014). The motion judge found the following

facts, which we recite verbatim.

" At approxima tely 5:30 P

. M

. on September 18, 2011, Holyoke Police Detective William Delgado received a telephone call from a friend, Manuel Alicea. Alicea informed Detective Delgado that five Hispanic males were loitering in front of Manny ' s Market near the intersection of Sergeant and Walnut Streets in Holyoke

. Alicea, the owner of the property, asked Detective Delgado to respond to address the problem.

" Manny ' s Market is in a high crime area, well known to Detective Delgado for drug dealing, firearms off enses and shootings. A Holyoke [p] olice [o] fficer had been killed recent ly in that area.

" Detective Delgado had been a Holyoke p olice officer for ten years. At the time , he was assigned to the Holyoke [ p ] olice [ d ] epartment [ n ] arcotics and [ v ] ice [ u ] nit and

1 Various other charges were dismissed or nolle p rose quied

.

2 The judge found that police officers arrived within fifteen minutes of the request that gave rise to the circumstances of this case . The record shows, however, that the officers arrived two hours later. The defendant notes some additional minor factual errors in the findings but concedes that they are not relevant to the issue on appe al.3

also the Western Massachusetts [ g ] ang [ t ] ask [ f ] orce. He was familiar with firearms, having made firearms arrests approximately [ forty ] to [ fifty ] times. Many of those arrests involved illegal possession of firearms on the street.

" At approximately 5:45 P

. M

. , Detective Delgado responded to Manny ' s Market with other officers in an unmarked vehicle. All of the officers were in plain clothes, but wore their police badges around their neck[s]. Upon arrival, Detective Delgado observed f ive Hispanic males standing on the sidewalk in front of Manny ' s Market. There were no other persons in the area. Detective Delgado recognized one of the men, Jeffrey Rosario, from past arrests for drug offenses and home invasion. Detective Delgado exite d his police vehicle and moved toward the group of men for the purpose of telling them to move along. As he did so, he noticed one of the men he did not recognize, later identified as Colon, stare at him in a manner he described as nervous. After Detecti ve Delgado and the other police officers identified themselves and asked the men to move along, Colon began to walk away at a fast pace repeatedly looking back toward Detective Delgado. Colon was wearing a loose shirt untucked. From a vantage point of app roximately [ ten ] feet away, Detective Delgado observed a bulge on Colon ' s right hip underneath his shirt. He described the bulge as a few inches in size. Based on his training and experience, Detective Delgado believed the bulge was consistent with a firearm, both in size and location. Soon after Colon began to walk away at a fast clip, Detective Delgado observe d him reach to the bulge with his right hand and make what Detective Delgado described as an ' adjustment ' with his hand. At that point, Detective Delgado ordered him to stop.

"After Detective Delgado's directive to stop, Colon began to run. Detective Delgado gave chase north on Walnut, west into a dirt lot, down an alley and onto Pine Street. On Pine Street Detective Delga do observed Colon reach toward the bulge, pull out what appeared to be a firearm and throw it over a fence. [Detective] Delgado stopped and retrieved the firearm, a silver .380 caliber semi

- automatic handgun with a black handle, approximately [ five ] inche s long, [ three ] inches wide [,] and [ one ] inch thick. The firearm was loaded w ith one bullet in the chamber.4

"Other officers continued to pursue Colon, apprehending and arresting him shortly thereafter. "

According to the defendant, Detective Delgado did not have

" an objectively reasonable suspicion of criminal activity, based

on specific and articulable facts " that would justify the

seizure. Commonwealth v. Barros , 435 Mass. 171, 176 (2001) , citing Commonwealth v. Stoute , 422 Mass. 782, 789 (1996). The

defendant and the Commonwealth agree that the motion judge

properly determined that the defendant was seized in the

constitutional sense when Detective Delgado yelled at the

defendant to stop. Commonwealth v. Mock , 54 Mass. App. Ct. 276,

278 (2002). See Grasso & McE v oy, Sup p ression Matters Under

Massachusetts Law, § 4

- 3 ( 2013

- 2014 edition) (determination of

the grounds of the stop is both " fact

- specific and time

dependent " ). Thus, the defendant ' s flight following the order

to stop m ay not be factored into the determination of whether

the seizure of the defendant was reasonable

. When Detective Delgado first saw the defendant, he was

standing near four other men, one of whom was known to Detective

Delgado because he had arrested him for narcotics and home

invasion. The defendant walked away quickly and appeared

nervous. They were in a high crime area. Detective Delgado

observed a bulge under the defendant ' s shirt on his right hip,

which, based on the detective ' s experience and training , was5

consistent with carrying a firearm. See Commonwealth v. King ,
389 Mass. 233, 243 (1 9 8 3). Detective Delgado also saw the

defendant adjust the bulge. The defendant argues that, even

assuming all of these factors, Detective Delgado did not ha ve
reasonable suspicion to believe that the firearm was illegal.

Mere possession of a firearm does not, by itself, justify a

stop. See Commonwealth v. Alvarado , 423 Mass. 266, 27 1 (1996).

See also Commonwealth v. DeJesus , 72 Mass. App. Ct. 117, 120

(200 8) (no reason to believe that defendant was too young to

possess firearm legally). The Commonwealth responds that the

defendant ' s nervous demeanor when he first saw the police

arrive, his immediate and fast

- paced departure from the area,

the fact that he repeatedly looked back at Detective Delgado as

he walked away, the bulge on his hip where firearms are carried,

and his reaching towards the bulge as he fled, provided a

reasonable suspicion based on the facts and the inferences which

could reasonably be d rawn therefrom, that the defendant was

unlawfully carrying a firearm. See Commonwealth v. Silva , 366

Mass. 402, 406 (1974).

Both the Commonwealth and the defendant rely on

Commonwealth v. DePeiza , 449 Mass. 367 (2007) , to support their

arguments. In De P eiza , the Supreme Judicial Court stated:

" Although the question is a close one, we conclude that by the time the officers announced the patfrisk, they reasonably suspected that the defendant was committing the6

crime of carrying an illegal firearm, and the stop was therefore justified. This conclusion follows from the combination of the many factors

. . . . T he police

encoun tered the defendant s hortly after midnight in a high crime neighborhood with increasing incidences of firearm violence. He was walki ng with his right arm held stiff and straight against his body, which , based on the officers ' training at the police academy , suggested he was carrying a concealed firearm. While speaking with the officers the defendant appeared nervous, looking from left to right and shifting his feet, as if ready to run. Finally, and most significantly, through out the encounter the defendant repeatedly hid his right side from the officers ' view, and when the officers finally glimpsed that side they noticed that his righ t jacket pocket appeared to hold a heavy object. "

Id

. at 371

- 372.
Relying on DePei za , we have held that collective factors,

including the officer ' s tr aining and nine years ' experience in

the district, the history of firearms in the neighborhood, the

late hour, the defendant ' s head movements, his continuous

placement of his hand inside his pants, and his accelerating

evasion of the police establish ed reasonable suspicion of

unlawful possession of a firearm

. See Commonwealth v. Jones

Pannell , 85 Mass. App. Ct. 390, 397 (2014) , further appellate

review granted , 469 Mass. 1106 (2014). See also Commonwealth v.

Franklin , 456 Mass. 818, 823 n.3 (2010) ( " fact of concealment of

. . . weapon
. . . gives rise to

. . . reasonable suspicion that

weapon is being carried unlawfully); Commonwealth v. Powell , 459

Mass. 572, 578 (2011) (same). The facts of this case support a7

conclusion that Commonwealth v. DePeiza is controlling and the

officer had reasonable s uspicion to st op the defendant.

Judgments affirmed

.