On March 15, 2010 the MASSACHUSETTS APPEALS COURT reversed a suppression of a firearm in COMMONWEALTH vs. SANTIAGO S., a juvenile 08-P-29 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In reviewing the facts of the case they stated “The juvenile was arrested and indicted under the youthful offender statute for unlawful possession of a firearm. See G. L. c. 119, § 54; G. L. c. 269, § 10(a). The juvenile’s motion to suppress a semiautomatic gun seized by the police was allowed by a Juvenile Court judge. The Commonwealth filed an interlocutory appeal challenging the allowance of the suppression motion. We reverse.
officers drove down Washington Street past the two young men, and then made a U-turn to double back to where the two had been standing. As the unmarked car was turning, the two youths looked over at the car, and began quickly walking away from Washington Street onto Fuller Street . The officers continued to drive down Fuller Street . Torres became so preoccupied in repeatedly looking back over his shoulder to check where the car was that he did not see the juvenile, who was in front, pause for a moment, and Torres bumped into the juvenile. Torres then passed the grey case to the juvenile. With the case in hand, the juvenile quickly walked into the fenced area of a house at 124 Fuller Street . To this point, the three plain clothes officers in the unmarked car had not spoken to, or undertaken any action directed to the two youths. When the juvenile entered the fenced in yard, the officers stopped and exited the car. Williams saw the juvenile move toward a closed side or basement door at 124 Fuller Street , which he tried to pry open by banging and pulling on the door knob. Given the force being exerted, the sound of the door rattling against the jamb echoed. Williams entered the fenced in yard. The juvenile could not open the door, and looked back towards Williams, who although in plain clothes, wore a Boston police badge around his neck. The juvenile began to run toward the rear of the house. Williams began to follow, but when Williams was about halfway down the driveway, the juvenile suddenly spun about to face the officer and placed his hand into a pocket as if trying to take something out. Concerned that the juvenile might be reaching for a weapon, Williams pulled out his firearm, and ordered the juvenile to stop and show his hands. The juvenile ignored the order, and while still facing the officer, began running backwards, leaving his hand in his pocket. Again, Williams told the juvenile to stop and show his hands. The juvenile did not comply, but instead, spun about again, took his hand out of his pocket, and ran towards the back of the house again, whereupon he came upon a fence, which he began to climb with the case still in his hand. His shirt caught on the fence, and the juvenile fell to the ground, losing his grip on the grey case. The case hit the ground, broke open, and a large semiautomatic handgun fell out.
the judge’s ultimate conclusion that the box potentially might be a common tool box rather than a gun case is fundamentally inconsistent with the context of the encounter, which began with the observation of the grey box (which the officers reasonably thought housed a firearm), led to both youths’ hasty retreat from the scene (with them bumping into each other as they watched the oncoming police), caused the passing of the box (like a hot potato), continued with the flight of the juvenile (including the frantic banging on the house door, and the running to the fence), and finally was followed by the juvenile’s turnabout to confront the officer, coupled with the moving of the juvenile’s hand into his pocket — a gesture suggesting a reach for a weapon — all of which ended in the display of the officer’s weapon yielding this point of seizure. It was only after the seizure that the firearm was discovered as it fell to the ground when the juvenile back pedaled and tried to scale the fence. If the seizure was constitutionally justified – – which we conclude it was — there was no taint in discovery of the gun.
A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value, not as binding precedent. The case is a good illustration of what reasonable suspicion is.
Attorney Ronald A. Sellon