This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of the Superior Court suppressing evidence seized during a warrantless search. " When reviewing a motion to suppress, we adopt the factual findings of the motion judge absent clear error. We independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007) (quotations and citations omitted).
The judge correctly concluded that the defendant was seized when the police officer activated his blue lights and blocked the vehicle the defendant was occupying. As a result, we only review the relevant facts found by the judge that were known to the police officer prior to that seizure. See Commonwealth v. Barros, 435 Mass. 171, 176, 755 N.E.2d 740 (2001), quoting from Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (" [R]easonableness of official suspicion must be measured by what the officers knew before they conducted their [stop]" ).
Officer Lanteigne heard and responded to a " Priority 1" call at 1:30 a.m. A 911 caller (Wattley) " told the 911 operator that he was on the second floor looking outside and saw a man standing in the street holding a gun. Wattley said he had seen the man drive off in a black Infiniti, return and park on Armandine Street, get out of the car holding a gun in his hand, and then get back into the car."  Wattley did not see the man threaten anyone with the gun and did not have a " problem" with the man, whom he identified by name.
The responding officer knew this was a high crime area where there had been gun violence in the past, including an incident when a police officer had been shot. As he approached the location, Lanteigne drove slowly, saw an unmarked cruiser, and did not have his blue lights activated. As Lanteigne approached, Wattley " came running off the porch and started yelling to the police officer. . . . Wattley pointed at a vehicle parked [twenty to thirty] feet in front of Lanteigne's cruiser and said 'the guy is right there.'" The car that Wattley pointed to was legally parked. The car was " completely dark; no internal or external lights were lit." The officer saw the brake lights go on, which made him afraid that the car was about to drive away, and resulted in Wattley yelling, " That's him. That's the guy, he's about to drive away." The officer was also aware that trained, licensed owners of a handgun typically carry their firearm in a holster but " that Massachusetts law does not require that a firearm be carried in a holster."
" 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. Haskell, 438 Mass. 790, 793, 784 N.E.2d 625 (2003) (quotations and citations omitted). " Because it is legal in Massachusetts to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, does not create a reasonable suspicion that a crime is or will be committed." Ibid. See Commonwealth v. Alvarado, 423 Mass. 266, 269-274, 667 N.E.2d 856 (1996). However, other factors such as the incident occurring in a high crime area, late at night or early in the morning, as well as other suspicious behavior of the defendant when considered as a whole with a reliable report that a handgun was observed may create reasonable suspicion. See, e.g., Commonwealth v. Haskell, supra at 793-794 (reliable " report that the defendant had been seen loading a handgun shortly before 2 a.m. in a high crime area . . . creates a reasonable suspicion that a crime may be about to take place" ); Commonwealth v. DePeiza, 449 Mass. at 371 (patfrisk reasonable due to suspicion that the defendant was carrying an illegal firearm when " the police encountered the defendant shortly after midnight in a high-crime neighborhood with increasing incidences of firearm violence," he was walking in a manner consistent with carrying a concealed firearm, and he appeared nervous and " hid his right side [the side with the gun] from the officers' view" ). Compare Commonwealth v. Couture, 407 Mass. 178, 181, 552 N.E.2d 538, cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990) (" A police officer's knowledge that an individual is carrying a handgun [in his pocket], in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun" ); Commonwealth v. Alvarado, 423 Mass. at 267, 274 (anonymous tip that there was an occupied car in a driveway, which contained a handgun wrapped in a towel, was insufficient to support reasonable suspicion); Commonwealth v. Barros, 435 Mass. at 172, 178 (a tip from an informant that he saw a man fitting the defendant's description and location " take a handgun from his waistband and show it to others who were with him" combined with the defendant ignoring the officer did not create reasonable suspicion); Commonwealth v. DeJesus, 72 Mass.App.Ct. 117, 120, 888 N.E.2d 1014 (2008) (report that a " kid" who, according to the testifying officer, appeared to be in his early twenties had a gun in a high crime area at 3:30 p.m. was not sufficient to create reasonable suspicion).
Here, there was a reliable report that the defendant had a handgun. However, that was not the only specific fact available to the police officer prior to the seizure. The police officer also knew that this was a high crime area, it was 1:30 a.m., the defendant was not carrying the gun in a holster even though " trained, licensed owners of a handgun typically carry their firearm in a holster," and the defendant had engaged in suspicious behavior when he left the area and then returned to this block, exited his vehicle with the gun, and then returned to sit in his car. This suspicious behavior at 1:30 a.m., as related by the 911 caller, differentiates this case from the cases in which the justification for a stop was lacking. In his analysis of the constitutionality of the stop, the motion judge acknowledged that it was a high crime area and that the gun was unholstered, but he failed to consider the other facts he found credible in determining whether reasonable suspicion existed, including that it was 1:30 a.m. and the defendant's circling behavior. Contrast Commonwealth v. Wren, 391 Mass. 705, 708, 463 N.E.2d 344 (1984); Commonwealth v. San, 63 Mass.App.Ct. 189, 192, 824 N.E.2d 469 (2005) (reasonable suspicion existed to stop a black van that had been seen circling the area prior to a breaking and entering when the man observed outside the van matched a description provided by the victim). Although it is a close case, the defendant possessing a handgun in a high crime area known for gun violence at 1:30 a.m., engaging in circling behavior, and then sitting in an unlit car created reasonable suspicion that the defendant was about to commit a crime. Here, the motion judge improperly confined his analysis to whether there was reasonable suspicion that the gun was illegal. The stop of the defendant was supported by reasonable suspicion.
Order allowing motion to suppress reversed.
Trainor, Agnes & Blake, JJ.