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13-P-774 Appeals Court

COMMONWEALTH 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.

Indictments 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 the cases were heard by Cornelius J. 

Moriarty, II, J.

Elaine Fronhofer for the defendant.

Bethany C. Lynch, 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 of 
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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 principles. Commonwealth v. Hoose, 467 Mass. 

395, 399-400 (2014). The motion judge found the following 

facts, which we recite verbatim. 

"At approximately 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 offenses and 

shootings. A Holyoke [p]olice [o]fficer had been killed 

recently in that area.

"Detective Delgado had been a Holyoke police 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 prosequied.

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 appeal.
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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 five 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 exited 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 Detective 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 approximately [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 observed 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 Delgado 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] inches long, [three] inches wide[,] and [one] inch 

thick. The firearm was loaded with one bullet in the 

chamber.
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"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 & McEvoy, Suppression Matters Under 

Massachusetts Law, § 4-3 (2013-2014 edition) (determination of 

the grounds of the stop is both "fact-specific and timedependent"). Thus, the defendant's flight following the order 

to stop may 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, was 
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consistent with carrying a firearm. See Commonwealth v. King, 

389 Mass. 233, 243 (1983). Detective Delgado also saw the 

defendant adjust the bulge. The defendant argues that, even 

assuming all of these factors, Detective Delgado did not have 

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, 271 (1996). 

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

(2008) (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 drawn 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 DePeiza, 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 the 
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crime of carrying an illegal firearm, and the stop was 

therefore justified. This conclusion follows from the 

combination of the many factors . . . . The police 

encountered the defendant shortly after midnight in a high 

crime neighborhood with increasing incidences of firearm 

violence. He was walking 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, throughout 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 right jacket pocket appeared to hold a heavy 

object." 

Id. at 371-372.

Relying on DePeiza, we have held that collective factors, 

including the officer's training 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 established reasonable suspicion of 

unlawful possession of a firearm. See Commonwealth v. JonesPannell, 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 a 
7

conclusion that Commonwealth v. DePeiza is controlling and the 

officer had reasonable suspicion to stop the defendant.

Judgments affirmed.